Continuing the last post regarding patents and copyrights, here is a quick glimpse at trademarks and trade secrets:
TRADEMARK: A product word, name, symbol, sound, or color that distinguishes one good or article of commerce from others in the market by indicating the source of the good. Unlike patents, but like copyrights, trademarks do not need to be registered in order to provide the owner with rights. However, registration is advantageous. Trademark rights are also unique in that they can last indefinitely as long as the mark is used in commerce. You may have seem the symbol "™" or "®" next to a logo or trade name. These indicate, respectively, that the name or mark is an unregistered trademark, or registered trademark. Ownership of a trademark prevents others in the market from using a mark that is likely to cause confusion among consumers.
The U.S. Patent and Trademark Office also considers what type of product to which the mark applies. Thus, I probably could not get away with using the mark “Betsy Crocker” to sell boxed cake mixes through grocery stores, as this is too similar to Betty Crocker®. However, I could probably start a construction company called “Betsy Crocker” (or maybe even “Betty Crocker”) because that is a completely different industry. Trademarks can be very valuable to the culinary world, where use of proper quality ingredients is essential. Imagine being unable to select the right brand of chocolate or flour because two trademarks were so similar? What if they were drastically different in quality?
TRADE SECRET: The Uniform Trade Secrets Act defines a trade secret as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”[1]
To “boil” that down, a trade secret is nearly anything that adds value to a business because of its secrecy and is actively being kept secret. In the food world, perhaps two of the best-known examples of trade secrets are the formula for Coca-Cola® and the Original Recipe® for Kentucky Fried Chicken®. However, it is likely that nearly every professional kitchen and professional chef in the United States has one or two trade secrets, whether it is a secret recipe, secret preparation technique, or secret device.
Lastly, one major difference between patent and copyright versus trademark and trade secret law is that patent and copyright are strictly federal areas of law, whereas trademark law is a federal/state hybrid and trade secret law is state law only.
