Areas of Practice - Other Intellectual Property and Related Rights
The practice of law rarely, if ever, falls into neat, concise divisions. Although lawyers can assign a name to a type of law and articulate clearly the theoretical constituent parts, the problems of real clients do not pay heed to these demarcations and go where they will. A prudent lawyer, aware of this, may focus the bulk of attention on the main tenets of a particular area but will also keep up to date on tangentially related and foundational areas of law as well to best serve the client's needs.
This section lists but a few of the main areas of law that commonly cross over when dealing with particular issues of the other concentration areas listed here.
Other Intellectual Properties
Trademark Law intends to protect the reputation and efforts of an actor in commerce from consumer confusion and competitive disadvantage. A trade mark is an identifiable entity (recognizable categories of types of trademark abound depending on jurisdiction,) that is intended to recall in the mind of the end consumer a connection to the original creator of the product to which the mark is attached.
Trademark law hinges on actual (or expected) use in commerce and protection lasts as long as the use continues. Trademark protections can come from many sources, localities, states, the Federal government and foreign nations all have relevant and domains making the analysis of trademark usage and infringement quite complex. For example, a Federally registered trademark usually provides protection from competitive or confusing use of the mark by anyone else in the country in a similar trade category. Usually. But there are exceptional cases and fascinating counter-intuitive resolutions to some cases. It can even be the case that using a mark so successfully so that the name becomes part of the common language when talking about similar products can lead to a loss of control of the trademark for that otherwise quite successful company.
What can qualify for trademarks and how they can be infringed would take up too much space to go into here. Suffice to say, a knowledge of trademarks and how to be properly wary of their use or misuse is a prudent approach.
Trade Secrets are a way of protecting the information that is vital to the workings of a business. Protections to prevent the dissemination of trade secrets can even limit future employability of former employees to an extent. Trade secrets are how some companies keep a competitive advantage far beyond the twenty years of exclusive protection patents provide (see below.) Trade secret law has the potential to bump up against employment law, the First Amendment and unfair competition at different times. An awareness of the laws extent and limitations can prevent being blindsided.
Patents are ways for inventors to protect novel and useful developments. It is a meant as a way to reward the efforts of new thinkers in providing a monopolistic term for them to exploit their inventions. If a patent is successfully issued it provides exclusive protection from anyone duplicating the protected item for a period of twenty years. The law of patents is ever evolving and the practice of patent protection has gotten particularly complex in recent years. It is an area of law that I keep an eye on, but, is one of the few areas of intellectual property where I avoid practicing within.
Certain types of related laws don't protect property as much as they attempt to protect reputations.
Rights of Privacy and Publicity
Although there are still questions as to whether privacy protection is found in the United States Constitution, there are many laws that set out to attempt to protect privacy of individuals. Rights of Privacy grow out of a common belief that there is an expectation of privacy in the non-public comings and goings of regular individuals. When a light is shone on these private moments there must be substantial justification for allowing the public access to them or else there need be some recourse for the violated to seek redress. Elements of newsworthiness, malice and falsehood all participate in the determinations of these violations. When the subject of the interest has some form of public figure notoriety there is a lessening of the constraints of the press and public under rights of publicity laws, but there is still an absolute malice protection available for egregious and improper violations of that privacy.
Defamation - Libel and Slander
Lying is bad. Lying in public is actionable. That's the basic tenet behind the laws of defamation. Libel is publishing false statements in writing or other permanent medium about another. Slander is speaking falsely. Often in pursuit of a story the truth can be trodden. These laws protect those who would be damaged by untruths by punishing the negligent or careless. Other laws follow along this vein of protection for different variations of the errant or improper attention.
As discussed elsewhere on this site, Moral Rights strive to protect the reputation of the creator of works. Although there are few moral rights laws available within the United States, their existence in a few places as well as in other countries requires a consideration of the impact of actions on the reputations of those who might be damaged.
If there is a theme in my chosen areas of practice it is areas of law that impact expression. The basic tenet that protects all expression in the United States is the First Amendment to the Constitution of the United States. Because of the power and importance of these few clauses in the foundation of our legal system there isn't an area of law that doesn't touch First Amendment issues at some point and degree. I still am fascinated how so few words on insubstantial piece of parchment can still carry so much weight after all this time. But I am very glad they do and will fight strongly to make sure they continue to.