Re: Snooze/lose (Was: Academics and coursepacks)

Peter Groves <petergroves[_at_]compuserve.com> wrote:
>
> There has to be a distinction drawn between differnt types of
> intellectual property, I think. Whether a use it or lose it rule is
> appropriate surely depends on what the legal right is intended to
> protect.

Mr. Groves makes a fair assertion here, at least as it applies to the States. In the U.S., the basis for patent and copyright protection is different from the basis for trademark protection. Congress has the right to grant protection by patent and copyright for limited periods by virtue of explicit language in the U.S. Constitution. These are rights indicating exclusivity in the language of the statutes -- for patents it is the right to exclude others from making, using or selling the patented invention and for copyrights it is the exclusive right to reproduce, prepare derivative works, distribute copies (or phonorecords) by public sale, etc., perform and display the copyrighted work.

U.S. trademark law, on the other hand, finds its basis more nebulously in the Commerce Clause of the U.S. Constitution because it affects interstate commerce. The statute explicitly discusses the possibility of concurrent use of marks which can limit any potential exclusive rights in the intellectual property.

Therefore, where the basis of the right is in the grant of exclusivity, abandonment due to lack of use of the intellectual property does not follow.

Other countries have addressed this issue, as it relates to patents, by requiring compulsory licensing in the event of lack of use for prescribed periods. Rather than destroy the rights due to lack of use, these countries require licenses be given to parties wishing them, in exchange for appropriate compensation. The right, although perhaps not entirely exclusive in these countries, by U.S. standards, nonetheless is not destroyed by lack of use.

The likely principle to draw here is in the disclosure of inventions and copyrighted works to the public, in exchange for the exclusive rights. Once the exclusive right expires, the disclosed material is in the public domain. There is no parallel quid pro quo with trademarks.

Rochelle S. Blaustein, Esq.
Patents, Trademarks, Copyrights, Contracts and Internet Law blaust@patentplus.com http://www.patentplus.com/

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Fax: 703.714.8656 Received on Wed Aug 26 1998 - 17:06:17 GMT