Peter Berger

IP Questions & Answers
April 6, 2007

These questions and answers are not meant as legal advice to the readers but only as general information. Specific situations may require legal opinions. I am writing a regular column for JCK.

1. How do patents, trademarks, trade dress and copyrights differ from each other?
1. Copyright protects unique and original jewelry designs.
2. Patents protects inventions, such as a new clasp,new setting techniques, new alloys or new manufacturing methods.
3. A trademark is a brand identifier such as Cartier or its double C’s, whereas trade dress protects a look (i.e. the Coca-Cola bottle) that has come to be recognized as coming from a single source.For example, the design of Paloma Picasso’s Loving Heart can be protected by copyright, by trade dress, because the public is likely to associate the design with Paloma Picasso and by trademark because of her name.
2. As a retailer, am I responsible for infringement of patents, trademarks or copyrights for the jewelry I sell?
   Anyone, including retailers, who infringes a patent, trademark or copyright can be sued.That also applies to those who innocently infringe.In the jewelry industry, however, most manufacturers never sue retailers because they are not likely to ever sell to them again!Also, if the retailer is small, there is little financial incentive to sue. When the retailer is a major, and the copyright owner is not too concerned about future business with the retailer, big awards can be recovered.A retailer who is sued, but who had no involvement in creating or making the infringing designs is automatically indemnified by its vendor under the UCC.But with more and more vendors being offshore, such indemnity is harder to enforce.

A more detailed analysis can be found in my April 2007 JCK article.

Posted by Peter Berger on April 6, 2007 | Comments (0)