You and your business partner are at the top of the world. Not only did you believe in yourselves and your services, you believed when others did not. You developed the perfect national business in the hotel industry with a name that is unforgettable: "Service and Smile Hotel Services". You couldn't be any happier. That is, at least, until the President of the United States, on National TV, stated those wonderful words of yours that no one could forget:

"Thanks to Service & Smile Hotel Services, I was able to have a great night sleep which allowed me to be effective in my Russian negotiations".

Not two seconds later your partner calls: "We're Rich!". You are at the top of the World - things couldn't get any better!

And they don't. Though you had been reminded to do so, you never registered the domain name "www.serviceandsmile.com" or "Service & Smile Hotel Services" as a trademark. But someone else did. Someone in the hotel business - but not the type of business you, or the President wish to be in! Not five minutes after the president's speech, "XXX Smile Services" registered the domain name "www.serviceandsmile.com", which is directed to a site you would rather forget. Things spiral downward from there. Quick - call the lawyers!

Intellectual Property Overview

Before we look closer into this case, we must first understand what intellectual Property is and how it is protected. Several law dictionaries describes Intellectual Property (IP) as follows:

intellectual property ['in-te-'lek-che-wel-] : property that derives from the work of the mind or intellect. specif : an idea, invention, trade secret, process, program, data, formula, patent, copyright, or trademark or application, right, or registration relating thereto

IP is fiercely protected by many businesses today, as it is an asset of a company that can be bought and sold, transferred, or even leased. Even more importantly, as in this case, it can also be the identity of a company that can make or break the company's reputation.

Trademarks (or Service Marks) protect brand names and/or designs that are applied to products or services. Trademarked phrases distinguish one company or good/service from another and prevent confusion among consumers as to what product or service they are buying. Both a term and a logo can be trademarked and are generally made up of words, numbers, letters, names, color combinations, or designs.

It is important to note that a trademark is created through its use, not through registration. However, trademark registration generally acknowledges the ownership of the name or term. Having a registered trademark entitles its owners to legal protections such as protection against infringement from other parties or "dilution of a mark".

Other forms of protection for intellectual property include

• Copyrights protect works (i.e. books, videotapes, computer programs, drawings) from being copied.
• Patents are issued for an invention, and protects the inventor from others profiting off of his or her creative mechanism or process.
• Trade Names, a subset of Trademarks, are used to protect the name of a business (i.e. Apple Computer).
• Trade Secrets are formulas or processes that can be protected (i.e. the contents of Coca-Cola or the Kentucky Fried Chicken recipe).
  

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