IP treasures you never knew you had – discovering jewels in the midst of junk.
It is counter-intuitive, but treasure can often be mistaken for junk. A friend of mine, whose grandfather owned a Van Gough, decided to have a garage sale. Among the well-used toys, garden tools, puzzles, old clothing and general bric-a-brac were a pile of weathered prints and old wooden frames. In the midst of the tangled heap was a small, dust covered oil painting, so dingy the figure could barely be made out.
Halfway through the sale, my friend’s Aunt stopped by. While chatting with some customers, she noticed the oil painting wedged between the $5 wooden frames and $3 prints. Pulling the picture out of the pile, she cried out,
“Oh, my God! This is your Uncle Bobby’s Frans Hals! What in the world is it doing out here?”
And so it was! A $200,000 painting had been sitting in their attic for years, only to be put out for sale with the rest of the clutter, bearing a $15 price tag.
Not every story, however, concludes with such a happy ending. Many companies fail to realize the goodwill they continue to create in the marketplace can produce new and unexpected intellectual property. Social media can create new symbols and slogans that reflect grassroots popularity and goodwill. Furthermore, as case law evolves over time, various kinds of intellectual property may become protectable in new ways. Unregistered trade dress, for example, is now protected by a variety of state criminal statutes. Other intangible intellectual property is being created out of thin air.
While you may be aware of how name and likeness rights evolved from personal rights into fully inheritable property rights, or how trademarks grew to include colors, sounds and even smells, you may not be as familiar with “markings or objects, or symbols of value, privilege or identification.”
This intellectual property, created by the Indiana Supreme Court’s decision in An Hung Yao vs State of Indiana, affords protection to unregistered designs and design elements that do not possess secondary meaning. The various indices embedded in a product, in certain cases, are now protectable, with both civil and criminal remedies available to the Intellectual property owner.
Distinct from trade dress, symbols of identification may possess goodwill that exists between current customers and a particular product. Notably, this goodwill does not reflect back to the source or quality of goods or services.
Indeed, these symbols and indices can use differentiation as a form of identification. For instance, a customer may use specific features to identify their favorite fishing lure or flashlight, without regard to who made it.
Exclusive licensees now have standing to protect their valuable privilege from theft by counterfeiters, although the licensee does not own the underlying intellectual property. Because it is now settled case law that anything of value, tangible or intangible, is property in Indiana, the privilege of distributing intellectual property within a defined geographic area, as evidenced by an exclusive license, is protected by laws against theft. Further, the symbols of such exclusive privilege are now considered written instruments, subject to counterfeiting and forgery.
These are only a few examples of valuable intellectual property that has been transformed from junk into treasure. If you are the type of person who enjoys finding treasure in the least likely places, go ahead and look around. You may find your intellectual property portfolio contains unexpected jewels. As Meatloaf mused, you may even find a Cadillac hiding at the bottom of a Cracker Jack box.Sign up for Monthly Newsletter