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What type of law governs trademark and copy rights?

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Any product that is the result of human intellect, that is, something created, invented, or produced out of a concept is known as "intellectual property". It often consists on something that has no rival in the market necessarily. An example of intellectual property would be a motto, logo, recipe, plan, and other things of which there is no mass production.

There are four types of intellectual property, which include:

  • patents - the due rights granted to inventors over their inventions
  • trade secrets - the formula or "hit" that makes a business or brand successful (i.e, KFC recipe)
  • copyright - the right for the creator of an intellectual work (compositions, songs, etc) to decide how much of his creation is allowed to be used.
  • trademarks - all symbols, pictures, and marks that identify a specific business, such as a logo, or a "look".

The "intellectual property clause" of the U.S. Constitution can be found in Article I, Section 8, Clause 3. This latter clause is called the Commerce Clause and it is this what directly and Congress the constitutional power to control and govern over the regulation of patents and copyrights. The Commerce Clause allows Congress to

“to regulate commerce with foreign nations, and among the several states, and with the Indian tribes"

Trade secrets are usually state-based particularly with the aim to avoid unfair competition within the same state. That means that there has to be a balance over what is or can be approved to give everyone a fair chance. Yet, Patents and Copyrights are almost exclusively regulated by federal law. The U.S. Patent and Trademark Office is who issues the patents and trademarks at the federal level. Copyrights must be registered with the U.S. Copyright Office or else they cannot be enforced. Trademarks are the only ones that can be regulated by both state and federal government.

The primary motivation of protecting intellectual property is the fact that it is not tangible property; it does not repeat, it cannot be re-produced in mass, and its creation is quite unique, setting it aside from other typical property. Like Jefferson said,

He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

It is the aim to be fair to both the creator and those whom the creator inspire that there is a specific need to protect, control, and monitor (regulate) intellectual property and its shared usage.

Approved by eNotes Editorial Team