January 1, 2011
FUNWORLD
Authored by James R. Barney
The amusement industry is based on excitement. The most successful companies consistently bring fresh ideas to the marketplace—new rides, new customer experiences, new techniques for generating revenue. In the United States, these new ideas are usually protectable as "intellectual property" (a term that refers to something that is legally protected by a patent, trademark, or copyright). So if the words "new," "fresh," "innovative," or "unique" describe your company's products, you should probably know at least the basics of intellectual property. Here's a quick guide.
There are two types of patents in the United States. A "utility patent" provides up to 20 years of protection for the functional aspects of an innovative product or process (for instance, a new type of safety harness). A "design patent" provides 14 years of protection for an ornamental design of a product (for instance the stylized shape of a waterslide raft). Think of it this way: Utility patents cover the functional aspects of a design; design patents cover the purely decorative aspects. Both types of patents can be valuable assets for your company.
Building and maintaining a patent portfolio can be expensive; therefore, it is advisable to pursue patents strategically. The goal should be to patent critical aspects of your technology to keep would-be copycats at bay. In general, the more important a new product or process is likely to be to your business, the more you should consider seeking patent protection for it.
How do you find patentable ideas? Talk to your engineers and technicians. If they faced a daunting problem during the design or manufacture of the product and solved it in a clever way, that solution may be patentable. And don’t overlook small details, such as subcomponents, special materials, software, etc. The more of these details you can patent, the better chance you'll have of warding off copycats.
Timing is critical when seeking patent protection. In the United States, you must file for a patent within one year of publicly disclosing the product or feature you wish to protect. In most other countries, however, there is no such grace period. Therefore, if you intend to seek patent protection internationally, it is best to file a patent application before you publicly disclose the product. A relatively inexpensive way to do this is to file a provisional patent application before unveiling the new product. This provisional application will document your invention and hold your place in line at the Patent and Trademark Office for up to one year.
Not every company in the attractions industry needs patent protection for its products and services. But if you wish to differentiate your company’s products from your competitors' and prevent knockoffs from popping up, you should strongly consider seeking the protection of a design or utility patent.
Most companies are generally familiar with trademarks. These are the legal rights granted by the Patent and Trademark Office to protect unique business identifiers such as logos, names, and advertising taglines. What many companies do not know is just how powerful trademarks can be or how they can be used to ward off imitators.
For starters, a trademark does not need to be a logo or a name. It could be a sound (for instance, Intel and NBC have trademarked their unique chimes), a particular color (think of Tiffany's unique shade of blue), or a particular shape or style of a product (such as Coca-Cola's iconic bottle shape).
The basic requirements for federal trademark protection are that the mark (or sound, or color, etc.) be nongeneric and nonfunctional. The nongeneric requirement means you cannot trademark the word "coaster," for instance, to identify a particular brand of roller coaster, since "coaster" is a commonly used term. But you could trademark a name like "Howler" or "Flume of Doom" if nobody else has used those words to brand similar rides. The nonfunctional requirement is a bit trickier. It means you cannot trademark the particular shape of a Ferris wheel, for instance, if that shape has something to do with how the ride functions. To protect such functional aspects of a product, you must instead apply for a patent. On the other hand, if the particular shape, pattern, color scheme, or other aspect of a product is purely decorative, and if it uniquely identifies your company as the manufacturer, then you may be able to protect that feature as a trademark.
In some cases, trademark protection can also cover the "trade dress" of a particular product or service. For example, if the particular look and feel of your amusement attraction (i.e., the overall theme, décor, costumes, user experience, etc.) are sufficiently unique and nonfunctional, you may be able to claim trade dress protection for it.
Federally registered trademarks can be powerful business tools. They are virtually perpetual, as long as you continue to use them in commerce and observe certain precautions about how they are used. And they are readily enforceable in federal court. Thus, when used as part of a well-planned intellectual property strategy, trademarks not only uniquely identify your products in the marketplace, they can also prevent competitors from copying certain stylistic aspects of your products.
A copyright protects an original work of literature, art, music, architecture, or other creative design from being copied by others. There is no requirement to register a work with the Copyright Office to obtain this protection. Instead, a copyright applies automatically as soon as the work is reduced to a tangible form. However, registering a work with the Copyright Office does provide some procedural advantages if you ever have to assert your copyright in court.
Copyrightable works are everywhere in the amusement industry, even in places you might not expect. The music, videos, and artwork associated with a ride or attraction are obviously protectable by copyright (provided they are original), but so are the characters, costumes, choreography, architectural designs, software, and other original aspects of such attractions. Even special effects like sequenced water features and light shows can potentially be copyrighted.
Being aware of what is copyrighted in your attractions is an important part of an effective intellectual property strategy. While it is not necessary or cost-effective to register every individual work with the Copyright Office, you may want to consider registering those aspects that are most important to your attraction to provide maximum protection against imitators.
A well-planned intellectual property strategy is important for any company in the amusement industry that wishes to differentiate its products and services from competitors and keep copycats at bay. An experienced intellectual property attorney can help your company devise such a plan. Once you understand the nature of the intellectual property your company has, you can then decide how best to protect it.
Published by FUNWORLD magazine, the official publication for the International Association of Amusement Parks and Attractions. To view the digital edition of FUNWORLD in which the article appears, please visit www.IAAPA.org. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.
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