Exclusive Rights, Imitation and the Public Domain

In our free market economy, public domain (i.e., an invention, creative work, commercial symbol, or any other creation that is not protected by through trademarks, copyrights, or patents) is the general rule and intellectual property is the exception.  Therefore it follows that imitating or copying a successful market concept or trend that is not protected by a trademark registration, copyright registration or patent registration is the essence of free competition.

The above statement may come across as shocking since our society places a negative connotation on copying and imitating – especially copying and imitating another person’s work.  However, if you look back in history, many of the most successful innovators in business were not always the first to enter the marketplace.  And it is often that the most successful “new” product is one which legitimately imitates and copies the business that actually invented the product.  Stated differently, being the first to invent a product or service does not necessarily create exclusive rights to the inventor in that product or service. For example, Henry Ford was not the first to invent the automobile.  Rather, Henry Ford became the first to figure out how to mass produce the automobile and sell it at an affordable price.  Steve Jobs was the first to reach the market with the personal computer, but IBM found its success by following Apple’s lead and setting the industry standard for home and office desktop computers.

The Supreme Court stated: “In many instances there is no prohibition against copying goods and products.  In general, unless an intellectual property right such as a [trademark], patent, or copyright protects an item, it will be subject to copying…Copying is not always discouraged or disfavored by the laws which preserve our competitive economy…Allowing competitors to copy will have salutary effects in many instances. (See – TrafFix Devices, Inc. v. Marketing Displays, Inc.).

Thomas Jefferson equated free copying of ideas with the natural law: “That ideas should freely spread from on to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.
The Big Three of Intellectual Property

Legally protected zones of exclusivity for intellectual property rights are exceptions to the general principle of free copying and imitation.  The most prominent areas of exclusive rights of intellectual property are patents, trademarks and copyrights.  Trademarks, copyrights, and patents protect different types of intellectual property.  A trademark protects the rights of individuals or businesses which use distinctive names, designs, logos, slogans or other signifiers to identify and distinguish their products and services.  Copyrights protect original creative expressions produced by authors, composers, artists, designers, programmers, and other creative individuals. There are three types of patents: utility, design, and plant.  Utility patents,  the most common type of patent, are granted to the inventor of a new, useful, non-obvious invention.

Two Goals of Trademark Law

The two goals of trademark law are protecting property in the trademark and protecting consumers from confusion.  Trademark law serves to protect consumers from deception and confusion over trademarks as well as to protect the plaintiff’s infringed trademark as property. Both Congress and the Supreme Court in modern times have stressed that trademark has these two goals.  For example, in Inwood Laboratories, Inv v Ives Laboratories, Inc. the Supreme Court stated that trademark infringement “inhibits competition” and “subverts both goals of the Lanham Act” by depriving the trademark owner of good will and by depriving consumers of the ability to distinguish among goods of competing manufacturers. In the Supreme Court’s 1992 Taco Cabana decision, Justice Stevens, concurring, observed that in a Report accompanying the Lanham Act in 1946, the Senate said the Act had two goals:

The purpose underlying trademark law is twofold. One is to protect the consuming public so it may be confident that, in purchasing a product bearing a particular trademark which it favorably knows, it will get the product in which the consumer desires to purchase. Secondly, where the owner of a trademark has spent energy, time, and money in presenting to the public the product, he is protected in his investment from potential and actual misappropriation by pirates and cheats. This is the well-established rule of law protecting both the consuming public and the trademark owner.


As a simple rule, imitating or copying a market concept or trend that is in the public domain is essential in a free market competitive economy.  Legally protected zones of exclusivity, such as trademarks, are the exceptions to the freedom to copy and imitate.  In the absence of a legally defined exclusive right and without unethical behavior or illegality present, such as bad faith, copying is permitted and encouraged, and will not be considered trademark unfair competition.

Our Chicago trademark attorneys handle cases in state and federal courts throughout Illinois, including Cook, DuPage, Kane and Will Counties.  For additional information about our trademark practice and to discuss your trademark matters, please contact one of our trademark law firm at 312-789-5676.

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