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Misconceptions About Trademarks and Patents
Michael E. Cobb
Michael E. Cobb

Oct 2010-What is a trademark. The Wikopedia defines it as a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities. What are the misconceptions about trademarks? It can be reserved for future use. This is not true. Registration only gives protection for a limited time. It has to be used by the business. Surnames can always be a trademark. Wrong. If your last name is McDonald, you are not going to be able to start a fast food business without McDonalds breathing down your neck. Registering a business name (eg incorporation) gives you trademark protection for the name. Untrue. Only registration of a trademark gives you this protection. Trademarks exist for the benefit of the owner. No, they are actually for the benefit of the consumer (eg if someone buys a computer with the Intel symbol for the chip, they should know that this is what they are getting). The best trademark is the one which is most descriptive. Actually, legally, that is the worst one. It is best that the owner creates the value of the trademark. A trademark cannot be lost. Not true. If the owner discontinues the use the trademark, it can be lost over time. Using the Wikopedia again, a patent is a set of exclusive rights granted by a state (national government) to an inventor or their assignee for a limited period of time in exchange for a public disclosure of an invention. What are the misconceptions about patents? Ideas can be patented. Strictly speaking, this is not true. All that is required is that the invention contain a description which is adequate to enable a person skilled in that field to put it into practice. An invention must be put into practice in order to qualify as a patent. No. Unlike trademarks, there is no requirement that an invention be actually used in order to obtain patent protection. Obtaining a patent guarantees a payoff for the owner. Probably not. Only a small number of inventions reach the market place. Personal use is not an infringement of a patent. Not true. Any use of the patent without the owners permission, whether for commercial or personal purposes, is an infringement. Patent law is the same in Canada as in the United States. Although similar in theory, there are major differences. For example, in Canada, the patent goes to the first who files but in the U.S., it goes to the first inventor. There are lots of self help books out there for those who want to register their own trademark or register a patent. However, if you are serious about pursuing a trademark or a patent and it is important for your business or potential profitability of an invention, you should consult an expert in the field.

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