ANE Seminar Explains Trademark, Copyright, Patent & More

LAS VEGAS—Maxine Lynn, the self-styled "Sex Tech Lawyer," explained to a roomful of Adult Novelty Expo/AEE attendees the beginnings of what they need to know to protect their intellectual property in the convention's first seminar, "Lawyers, Guns & Money."

Though Lynn made it clear that she was not giving out legal advice, which would have been unethical in such a setting, she nonetheless explored some of the ins and outs of patents (which protect inventions), trademarks, copyrights (which protect creative works), trade secrets and the use and protection of domain names.

At the outset, Lynn made it clear that it is very important to file for these federal government and international law protections—"File. File. File," she intoned—noting that patents prevent their owners from others infringing on the patent holder's innovative device or process creations. She explained that it's important to file a patent application quickly and before publicly disclosing what the device or process does or attempting to sell it on the market. She described the three criteria for receiving a patent: "Your invention has to be new. ... It has to be non-obvious ... and it has to be useful."

She described different types of patents, both nationally and internationally, and informed the audience that such things as provisional patent applications, which she described as "placeholders," exist in case the applicant doesn't yet have a working model of the device. She also described how to search to see whether a similar device has already been patented, or had a patent applied for—a search made easier by Lynn's periodic publication of a list of patent applications on her website,—and warned against infringing on someone else's patent.

Lynn distinguished between patents and trade secrets, stating that the latter should be very closely held since patents really can't protect them.

Moving on to trademarks, Lynn stressed that trademarks should be sought for all names that a company or individual may wish to use in commerce, to prevent that company's goods or services from being confused with another's, and she listed eight benefits to the trademark holder, including that a trademark is valid throughout the entire United States; a "statutory presumption that the mark is valid," "statutory presumption that the registrant is the true owner of the mark," and that the mark "acts as a constructive notice of a claim of ownership, thereby removing any justification or defense of good faith adoption and use made by a third party after the registration date." In other words, it allows the owner to sue if the trademark is used improperly. She gave some of the criteria used to determine if an applicant has the right to trademark the mark, both in the U.S. and abroad.

Lynn also covered the recent Supreme Court victory in Matal v. Tam, which allowed the band The Slants to trademark its name, and struck the word "disparaging" from the list of things that are not "trademarkable." She also noted the pending case of In Re Brunetti, which seeks to expand that freedom even further to allow the "scandalous or immoral" word "FUCT" to be a legitimate mark for a brand of clothing.

Lynn also listed the criteria used to determine the strength of a particular mark—made-up words like Exxon are the strongest type, merely descriptive terms like "Clean Rite" for a cleaning company are among the weakest—and she cautioned that it's very important to do one's due diligence to make sure the mark isn't already in use by someone else, or too similar to an existing use. She also advised making sure that the symbol "®" is included with the mark, noting that using the mark without the symbol may make it more difficult to sue for infringement.

Moving on to the subject of copyright, Lynn described the type of works that may be copyrighted, including videos, photos, texts, books, website content, website code, advertisements and "anything that's creative" ... including porn. The only requirements to receive a copyright on a work is that it is "original" and "fixed in a tangible medium" such as a CD or paper document, and "not something fleeting like the performance of a play that isn't recorded." Holding the copyright to a creative work gives the holder several rights, including the right to reproduce it, to create derivative works from it, to distribute copies of the work, and to perform or display the work publicly. She also noted that a person or company may copyright someone else's work if that person was an employee who created the work as part of their job or signed a "work for hire" agreement.

Finally, Lynn talked about the use of domain names and how to protect them, including trademarking them—she used the trademarked name as an example—noting that if someone attempts to use another person's domain name, the original user can sue, either in court or through an arbitration—or come to an agreement with the "infringer."

Lynn closed her talk by stressing that it is important for businesspeople to trademark, copyright and patent their intellectual property, and to plan for and to take the time and effort to protect their intellectual property—and to enforce their rights legally when infringed upon.

The ANE/AEE trade show seminars continue through Friday. Click here to see the schedule.