Shielding the Brand
Intellectual Property Law, Wright Lindsey Jennings
Most every successful company can identify something that sets it apart from others, whether it is a handy widget, an innovative software application or even a fun logo. Meredith Lowry, registered patent attorney and partner at Wright Lindsey Jennings, said she started practicing intellectual property law to help businesses protect the things that make them stand out.
“The whole point of trademark laws really is to protect the consumer from being confused,” she said. “We don’t want someone picking up or going to a McDonald’s and thinking they’re going to get a McDonald’s hamburger and actually getting something that’s adulterated, poisonous, something that could hurt them. That would be a terrible outcome for the person eating it, and also, McDonald needs to be able to protect itself from that.”
There are various kinds of intellectual property protections. Inventions are protected by patents, including utility patents for functional inventions and design patents for aesthetic features. Copyright protects artistic material such as books, movies or music, she said, while trade secrets and other data are generally protected by contracts.
Trademarks, which protect brand identity, are one of the most versatile aspects of intellectual property law.
“When you think about Coca-Cola, a lot of people recognize the words, the script, the red can, the bottle shape, but we have other brands, as well, that can protect more,” she said. “Crayola Crayons, specifically, have a smell, and that’s protected.”
Artificial intelligence has led to profound questions about intellectual property. While users of an AI platform that creates art can copyright a prompt, they cannot copyright the image that results from it, Lowry said. That leaves a legal gray area as to whether people can stop others from using images they created using AI.
Furthermore, she said, a user could potentially run into copyright issues if the AI software generates something too similar to a protected work used to train it.
“More than likely, we’re going to have to come to grips with what does that mean if someone is using an AI tool to invent or to create?” she said. “Where are the lines of, ‘This is appropriate,’ and where are the lines of, ‘That’s not actually yours?’”
Neither are such images the intellectual property of the machines that created them. The law states that only humans invent and create things, Lowry said, adding that the principle was tested even before the proliferation of AI during the monkey selfie copyright dispute. In that case, courts ruled that neither the wildlife photographer who set up the cameras nor the monkey that pushed the button could own the rights to a now-famous “monkey selfie.”
Social media has also changed the shape of intellectual property. The Digital Millennium Copyright Act allows content creators to remove content that was taken from their pages and posted elsewhere without permission, often by reporting the infringement to Facebook, YouTube or other platforms.
Lowry said she rarely sees influencers protecting their content through copyright because it becomes untenable to register so much content. However, that registration is necessary for creators to seek statutory damages if their work is infringed upon.
As for the “poor man’s copyright,” in which people attempt to copyright manuscripts or patents by mailing them to themselves and leaving the envelope unopened, Lowry said all that proves is that people mailed something to themselves. It is not an effective alternative to registering at the U.S. Copyright Office or Patent and Trademark Office.
Lowry encouraged business owners to be proactive in protecting their intellectual property, since trademarks can be crucial when it comes time to expand or sell a business.
“Most people think, ‘Oh, well, that’s never going to be a big issue for me because I don’t need a trademark registration. I’m not going to try to sue anyone,’ but as your business grows, you always have that ultimate goal of not wanting to be in business at some point,” she said. “You’re going to want to retire. You’re going to want to hopefully sell a business and get that return back for your retirement years.”
Photo by Beth Hall Photography
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