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trademarks and
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© 2010 4imprint, Inc. All rights reserved
That was my idea: Copyrights, trademarks

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and patents
It’s 3:00 a.m. on a Wednesday and despite a glass of warm milk, a lavender-
scented pillow case and the soft glow of your television set, you just can’t fall
asleep. You flip mindlessly through channels when an infomercial catches your
eye. You glare at the product being peddled by a man describing the greatest
thing since sliced bread in what is quite possibly the worst fake British accent you
have ever heard. Then suddenly, you perk up in recognition. Is that … no, way …
it can’t be! But, oh yes, there it is. That thing he’s peddling? That was totally
your idea!

Maybe it really was your idea or maybe great minds think alike. Either
way you’re the one awake at 3:00 a.m. while the guy with the bad
accent is probably fast asleep in his king-sized bed in the master suite
of his palatial mansion, high in the hills of Hollywood, California. Why?
Because he took the idea, made it tangible and patented it before you did.

Products, services, logos, slogans, music, publications, inventions. Known as

intellectual property, these are the things that build business, grow the economy,
define capitalism and make many businesses and individuals very wealthy. In fact,
businesses based on intellectual property drive more economic growth in the
United States than any other single sector.1

Intellectual property law is the term for the multiple areas of law—copyright,
trademark and patent—that governs the ownership and rights to these creations.
Most intellectual property laws have historically sought to encourage innovation
and creativity, with the ultimate aim of promoting a general benefit to society by
granting overarching rights to the creator of a work that allows only the creator
to profit from his or her work for a limited period of time.2

Without these laws in place, businesses based on intellectual property become

vulnerable to threats of degraded reputations and deflated bottom lines posed
by pirates and counterfeiters while consumers become vulnerable to knock-
offs or products and services of decreased quality. The United States Patent and
Trademark Office (USPTO) estimates that the cost of piracy, counterfeit and all-out
theft of intellectual property equates to roughly $250 billion or 750,000 jobs
per year.

1 “Stop Fakes.” United States Patent and Trademark Office. Web. 31 July 2010.
2 “Intellectual Property.” Citizen Media Law Project. Web. 01 Aug. 2010.

© 2010 4imprint, Inc. All rights reserved

Intellectual property law is not always easy to understand, which quite often

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means that many small businesses and entrepreneurs forgo seeking protection
offered by copyrights, trademarks and patents altogether. The truth is, whether
an individual entrepreneur or a member of a Fortune 500 company that employs
millions, it is time to protect your ideas. In this Blue Paper, we discuss the basics of
what these protections are, why they are important to business, when and how
to apply, and how to take efforts to ensure that you and your employees are not
violating the terms of someone else’s copyright, trademark or patent. But first, a
history lesson.

A brief history of intellectual property law (it’s

not as boring as it sounds)
Copyright history dates back to the days when the printing press was first
introduced to England in the late 15th century. As the sheer number of presses
rose, authorities decided to control the publication of books by granting printers
a monopoly with the Licensing Act of 1662. This act lapsed a few years later and
copyright laws were absent until 1710 when Parliament enacted the Statute of
Anne. This statute established principles of authors’ ownership of copyright and
a fixed term of that copyright and prevented a monopoly among booksellers. It
also established a public domain for literature by limiting copyright terms and
ensuring that once a work was bought, the copyright owner had limited control
over the work’s use. When the U.S. was colonized, the Statute of Anne was one
of few British laws that failed to carry over to the original 13, meaning copyright
laws didn’t exist in America’s early history. However, the Copyright Act of 1790
changed this: It was enacted as one of the first laws following the
Constitution and was based, almost verbatim, on the Statute of Anne.
Ironic, isn’t it? Also notable, the biggest proponent of this act was
Noah Webster, the author of the first American dictionary himself.3

Trademarks date back further than copyrights and are often said to be the
oldest form of intellectual property. However, unlike other intellectual property,
trademarks have historically been protected primarily by common law and were
actually the last to be protected by a federal statute in the U.S., established
shortly after the Civil War in 1870. This came as a response to the rapid growth of
trade that followed the period of Reconstruction and the need of manufacturers
for trade identity. Subsequently amended and struck down over the course of
ten years, trademark law as we know was enacted by Congress in 1881 with the
Trademark Act.4

3 “Copyright Timeline: A History of Copyright in the United States.” Association of Research Libraries. Web. 31
July 2010. <http://www.arl.org/pp/ppcopyright/copyresources/copytimeline.shtml>.
4 Dudnikov, Karen, and Michael Meadors. “Trademark Law - The History Of Trademark Law.” Tabberone. Great
Fabrics and Collectibles. Web. 31 July 2010.
© 2010 4imprint, Inc. All rights reserved
Patents combine with the history of both copyright and trademarks. In short, the

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basis for modern patents came from Europe where sovereigns commonly awarded
“letters patent” to favored inventors. These letters had a seal on the outside, but
were open, or “patent” for anyone to see. In the U.S., Congress enacted the first
patent laws in 1790 as part of the U.S. Copyright Act. Before then, any inventions
and technological advancements created by colonists were owned by the King
of England.5 The first patent on the continent of North America was granted by
the Massachusetts General Court to Samuel Winslow in 1641 for a novel method
of making salt. George Washington signed the First U.S. Patent Grant on July 31,
1790 to Samuel Hopkins of Pittsford, Vermont for the dainty price of four dollars.
It was for a new method of making Potash, an industrial chemical used in making
soap, glass, fertilizers and gunpowder.6

Break it down
As can be expected, intellectual property law has evolved quite drastically since
its U.S. inception in the 18th and 19th Centuries. Our Founding Fathers could hardly
have predicted the growth of print publications, popular music, radio, television,
cds, the Internet or e-books. Today, intellectual property has expanded to be
a rather vast subject that is increasingly confusing, with many if-then-and-but
situations, especially in how it relates to entrepreneurs, business owners and
marketing professionals. Here’s what you need to know …

According to the Associated Press, copyright is the right of authors to control
the reproduction and use of their creative expressions that have been fixed in
tangible form, ranging from books to computer discs to the Internet 7. The USPTO
elaborates that a copyright is a form of protection provided to authors of original
works of authorship that have been tangibly expressed, such as8:
• Literary, (i.e., a book or an article)
• Graphic (i.e., an infograph or a map)
• Photographic
• Audiovisual (i.e., a FlashSM presentation)
• Electronic (i.e., a website)
• Dramatic, (i.e., a play)
• Musical (i.e., a song)
• Artistic, (i.e., a painting)

5 Bellis, Mary. “A Trip To The Patent and Trademark Office.” About.com - Inventors. Web. 31 July 2010.
6 “Happy Anniversary of the First American Patent Act.” Inventors. Web. 31 July 2010.
7 Goldstein, Norm. Stylebook and Briefing on Media Law. New York: Associated, 2005. Print.
8 “What Are Patents Trademarks, Servicesmarks, and Copyrights.” United States Patent and Trademark Office.
Web. 01 Aug. 2010. <http://www.uspto.gov/web/offices/pac/doc/general/whatis.htm>.

© 2010 4imprint, Inc. All rights reserved

Sometimes, unpublished works like diaries or personal letters and e-mails may be

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protected under copyright laws, too.

Under the most current Copyright Act of 1976, an owner of a copyright holds
exclusive rights to reproduce copyrighted work, to make derivative works, to
distribute copies of the copyrighted work, to perform the copyrighted work
publicly or to have the work displayed publicly. Copyright protects the form of
expression rather than the subject matter; no one can ever copyright an idea or
a fact. For example, a description of a machine can be copyrighted, but that will
not keep others from drafting their own description or from making or using the

Copyrights are not international and, like most laws, copyrights are not always
black and white even in the U.S.—there are often limitations and exemptions
from liability, the primary being the doctrines of Fair Use and compulsory license.

Fair Use doctrines are used by the courts to determine whether an exemption can
be made to copyright laws and are usually based on the following factors10:

1. The purpose of the use of the copyrighted work

2. The nature of the copyrighted work that is used

3. The amount and substantiality of the portion of the copyrighted work

used in relation to the whole of the copyrighted work

4. The effect of the use of the copyrighted work upon the potential value
of the copyrighted work

Compulsory license grants certain use of a copyrighted work upon

payment of royalties. For example, if you want to use a song written
and performed by The Beatles in your next commercial, you can do so
but only after paying a hefty amount of fees to the The Beatles’ song
rights holder. Or, you can use any stock imagery you want in that
brochure, but you’ll likely have to purchase limited rights before
downloading the file from a stock image website.

Thanks to the Copyright Act of 1976, copyrights are now obtained automatically
upon creating a work for the first time in tangible form. No forms need to be
filled out, declarations made, registrations completed or fees paid and the

9 “What Are Patents Trademarks, Servicesmarks, and Copyrights.” United States Patent and Trademark Office.
Web. 01 Aug. 2010. <http://www.uspto.gov/web/offices/pac/doc/general/whatis.htm>.
10 Goldstein, Norm. Stylebook and Briefing on Media Law. New York: Associated, 2005. Print.

© 2010 4imprint, Inc. All rights reserved

copyright symbol doesn’t need to be used. If a work is created over a period of

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time, the part of the work that is fixed on a particular date constitutes the overall
work’s creation date.

Because copyright law has changed over time, depending on when a work was
created determines how long a copyright lasts:

For works originally created on or after January 1, 1978, protection under

copyright law is granted from the moment of its creation and lasts throughout
the author’s life plus an additional 70 years. If something was created by more
than one person, the term lasts 70 years after the last surviving author’s death.
For works made for hire, such as a logo created by a branding firm for a client,
and for anonymous works or those created under pseudonyms, copyrights last 95
years from publication or 120 years from creation—whichever is shorter11.

For works originally created and published or registered before January 1, 1978,
protection began on the date a work was published with a copyright notice or on
the date the work was registered in unpublished form and lasted for 28 years. In
the 28th year, registration could have been renewed. The Copyright Act of 1976
extended this term from 28 to 47 years for copyrights that existed on January 1,
1978, or for pre-1978 copyrights restored under the Uruguay Round Agreements
Act, making these works eligible for protection for a total of 75 years12.

As you develop marketing materials, draft articles, blog posts, press releases,
websites and more, it’s important to consider copyright laws in order to protect
from a copyright holder’s legal actions against you or your company. Know that:

• Ignorance is not a legal defense when copyright is concerned. It is

your responsibility to know whether or not the works you are
creating are indeed original.

• Every work is owned by someone. If you do not own it, you cannot
claim any rights to it nor can you use it as you wish, claim it as your own
or give the impression that it may have been created by you whether in
print or online.

• Quotes, snippets, and references are always acceptable as long as the

original source is cited.

11 “Small Business - Copyright Law and Registered Copyrights - Copyright Infringement Information - USPTO
Stopfakes.gov.” United States Patent and Trademark Office. Web. 01 Aug. 2010.
12 “Small Business - Copyright Law and Registered Copyrights - Copyright Infringement Information - USPTO
Stopfakes.gov.” United States Patent and Trademark Office. Web. 01 Aug. 2010.

© 2010 4imprint, Inc. All rights reserved

• Copyright symbols (©) placed on a work or a website means that the

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creator is claiming ownership of the work, nothing more and nothing
less. The year associated with this symbol refers to the original date of
publication and, subsequently, the beginning of a copyright term. This
is useful to include on any work created because it informs the public of
ownership and will be necessary to prove infringement in many cases.

• Many professional associations, such as the Public Relations Society

of America (PRSA), have established industry best practices that
often address the ethical and legal implications of copyrights and
other intellectual property laws. For example, PRSA recommends
to all members that RFPs should stipulate that intellectual property
developed by consultants and agencies remain the property of said
consultant or agency until hired or paid. Thusly protecting a work’s
creators and the content created for proposals, while also serving in the
best interest of the client.13

So what if you find that a work created by you or your company has been
infringed, such as the content of your website has been used on someone
else’s site and they are passing it off as their own? The first step is to
draft a cease-and-desist letter acknowledging the copyright infringement
and requesting for the plagiarized content to be removed. If that doesn’t
work, only two options exist—forget about it or file a lawsuit. Whichever
you choose will likely depend on how much money you are willing to spend in
proportion to how much money the infringed work is worth.

Trademarks protect any word, name, symbol, device or any combination used, or
intended to be used, in commerce to identify and distinguish the goods of one
party from those of others. The most common trademarks are of:
• Company names, product names or service names
• Internet domain names, if they label a product or service
• Images that are proprietary to a brand (like the bowls of soup on a
Campbell’s® label)
• Symbols
• Logos
• Slogans and taglines
• Colors and combinations of
• Product design
• Product packaging (known as “trade dress”)

13 “Protecting Your Intellectual Property | PRSAY – What Do You Have to Say?” PRSay | What Do You Have To
Say? Web. 01 Aug. 2010. <http://prsay.prsa.org/index.php/2010/02/11/protecting-your-intellectual-property/>.

© 2010 4imprint, Inc. All rights reserved

In essence, trademarks protect a brand and its visual identity.

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Service marks are trademarks except that service marks identify and distinguish
the source of a service versus a product.

Trademarks and service mark rights, commonly referred to as simply “marks,”

may be used to prevent others from using a potentially confusingly similar mark,
but not to prevent others from making the same goods or from selling the same
goods or services under an obviously different mark14.

In order for an individual or business to establish trademark rights, it must

legitimately use the actual mark: TM or SM following the word, name, symbol,
device, service, etc. in text. However, in order for an individual to use the formal
register mark, ®, Federal trademark registration must take place.

Why would you pay for registration and go through the registration
process for a fancier trademark symbol? For starters, it provides the
ability to bring actionable concern in Federal court against someone
who has infringed upon your mark. Other advantages include15:

• Public notice of ownership of a mark

• The exclusive right to display and use a mark within your industry

• The legal presumption of a registrant’s ownership of the mark and their

exclusive right to use the mark nationwide

• The use of the U.S. registration as a basis to obtain registration in

foreign countries

• The ability to file the U.S. registration with U.S. Customs and Border
Protection to prevent the importation of goods that infringe upon your
registered mark.

Consider registering your trademark if your business intends to expand beyond

the local market to sell regionally, statewide, nationally or internationally.
Trademarks should also be considered when a brand, product or service is
developed that is especially proprietary to your business.

14 What Are Patents Trademarks, Servicesmarks, and Copyrights.” United States Patent and Trademark Office.
Web. 01 Aug. 2010. <http://www.uspto.gov/web/offices/pac/doc/general/whatis.htm>.
15 “Small Business - Copyright Law and Registered Copyrights - Copyright Infringement Information - USPTO
Stopfakes.gov.” United States Patent and Trademark Office. Web. 01 Aug. 2010.

© 2010 4imprint, Inc. All rights reserved

Typically, trademarks can last indefinitely if the owner continues to use the mark

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in connection with the goods and or services in the registration and files all
necessary documentation and renewal forms in the USPTO at the
appropriate times16.

Once in a blue moon, however, trademark registration will expire but a word or
phrase will find itself a “generic trademark”—posing both a threat to a brand
and an amazing opportunity all at the same time. Examples include aspirin, bikini,
hula hoop, escalator, zipper and more. This phenomenon is called “genericide”
and usually occurs when an invention or creation has occurred that requires a
name that doesn’t yet exist and one that ultimately becomes the best way to
describe something in everyday vernacular.

As Seth Godin, blogger and social media expert, explains, “People didn’t say
‘That’s a sexy Bikini® brand bathing suit’ because the idea itself was bigger than
the bathing suit.”

But we digress.
Unlike the process for obtaining a copyright, the process for registering a
trademark is time consuming and can be costly, especially if you or your
business consults with a legal advisor to review your application …
which, is usually recommended.

To begin the process of registering a trademark, follow these (somewhat)

simple steps17:

1. Make sure your product is eligible for a trademark in the first place.
Most trademark registrations are based on the current use of the mark
in commerce or a company’s or individual’s intent to use the mark in
commerce in the future. What in the heck does “use in commerce”
mean? Well, in the case of goods, the mark must appear on the actual
goods, the container and displays associated with the goods. Plus,
the goods must be sold or transported in legal commerce (a sales or
purchase in exchange for commodities). In the case of services, the mark
must be used or displayed in the sale or advertising of services and the
services must be rendered in commerce. If you have already started
using TM or SM, a registration will be based on this and require proof
along with a declaration.

16 “Small Business - Copyright Law and Registered Copyrights - Copyright Infringement Information - USPTO
Stopfakes.gov.” United States Patent and Trademark Office. Web. 01 Aug. 2010.
17 “Small Business - Copyright Law and Registered Copyrights - Copyright Infringement Information - USPTO
Stopfakes.gov.” United States Patent and Trademark Office. Web. 01 Aug. 2010.

© 2010 4imprint, Inc. All rights reserved

2. Search for trademarks.

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In order to determine whether or not a similar or identical mark is
already in use in the U.S., deeming your registration impossible, use
the USPTO’s free online database to search for existing marks and their

3. Search for potential obstacles.

While a registered a mark may not exist, that doesn’t mean there isn’t
threat of confusion of ownership. Take a few extra steps to search the
Internet for domain names and social media accounts to find out
if a desired mark is being used in a different capacity by someone
else in a way you might not want your brand associated with.

4. Register
After conducting research, file a trademark application that can be
found on the USPTO website online or by mail.

Once an application is filed, your registration is assigned an examining attorney

by the USPTO who is responsible for determining if there is a conflict, such as
a likelihood of confusing your trademarked work with that of someone else’s.
Trademarks, you see, aren’t just about protecting the integrity of a work, but also
the consumer—which is why they are so valuable to businesses and brands.

“The purpose of a trademark is to help consumers by allowing them to be certain

of the source of a good or service,” explains Godin. “When you go to the store
and buy some Mentos®, you know you’re getting the real kind, not some sort of
inferior mento with a small ‘m.’”18

Once a registration is granted, it is up to the business or brand to monitor the use

of the trademark and identify any potential infringements by ignorant parties
or competitors.

In order to prevent legal scuffles, businesses should honor trademarks of others

when referencing trademarked goods or services in marketing materials,
communications and resources (like this Blue Paper!) by including the appropriate
mark (™, SM, ®) upon first reference of the brand, good or service. Be sure that in
advertising, particularly those that compare your product to a competitor’s, that it
is very clear that your brand is not attempting to represent their brand.

Much like copyrights, if your business suspects that someone is violating the

18 Godin, Seth. “Godin on Trademark*.” Seth’s Blog. Nov. 2006. Web. 01 Aug. 2010.

© 2010 4imprint, Inc. All rights reserved

terms of your trademarks or service marks the first step is a cease and desist

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letter, followed by formal legal action. However, the Internet, particularly search
engines, has added a whole other level of infringement risks where trademarks
are concerned and it’s these infractions that require additional steps to resolve.

It has not been uncommon for competitors to purchase each other’s trademarks
as keywords for search engine advertising and hiding these keywords in metatags
or use a competitor’s trademarks in the copy or links of a paid search engine ad.
For example, Brand A offers similar products to Brand B and would like to reach
Brand B’s consumer base through search engines. Brand A purchases keywords
that happen to be trademarked words or phrases by Brand B to use its own
advantage and conversion gain, essentially allowing Brand A’s search engine ads
to appear in searches directly relating to Brand B’s trademarks. While technically
a trademark infringement, both situations like this go relatively untouched by
intellectual property lawyers because it’s such a gray area. The law and the issues
caused by technology are just too far apart.19

In most cases, infringement is not a legal issue but instead relates to policies
enacted by each individual search engine. If your business believes that a
competitor is infringing upon your trademark via search engine results, the first
step to resolution is to file a claim with the search engine itself.

A patent is intellectual property protection for an invention—it grants
property right to the inventor and is also issued by the USTPO.
Patents are granted for new, useful and non-obvious inventions for a
period of 20 years from the filing date of an application and provide
the right to exclude others from making, using, selling or offering to sell the
invention in the U.S. or importing the invention into the U.S. in that time period.
Patents on U.S. inventions, like copyrights, are only effective within the U.S.20

There are three types of patents21:

• Utility: Granted to someone who invents or discovers a new and useful

process, machine, article of manufacture or composition of matter.
One of the stipulations of obtaining a utility patent is “usefulness,”

19 Crowell, Grant. “Trademark Law – What Search Marketers Should Know, Part 1 - Search Engine Watch (SEW).”
Search Engine Marketing, Search Engine Optimization (SEO) and Paid Search Advertising (PPC) - Search Engine
Watch (SEW). 17 Oct. 2007. Web. 01 Aug. 2010. <http://searchenginewatch.com/3627333>.
20 “Small Business - Copyright Law and Registered Copyrights - Copyright Infringement Information - USPTO
Stopfakes.gov.” United States Patent and Trademark Office. Web. 01 Aug. 2010.
21 “Small Business - Copyright Law and Registered Copyrights - Copyright Infringement Information - USPTO
Stopfakes.gov.” United States Patent and Trademark Office. Web. 01 Aug. 2010.

© 2010 4imprint, Inc. All rights reserved

meaning that the subject matter has a purpose that consumers would

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deem useful and that the utility actually works.

• Design: Granted to someone who invents a new and original design for
an article of manufacture.

• Plant: Granted to someone who invents or discovers and asexually

reproduces any new and distinct variety of plant.

Patents, like all other areas of intellectual property law, cannot be granted for
mere ideas. Something tangible—an actual invention, the design plan for an
invention or a plant must exist.

In relation to your business, patents are important, if not necessary to

consider. They protect the investment you have made in developing a new
product or design. If you don’t patent a new invention, the door is left
open for someone to swoop in with the same idea, patent it themselves
and prevent your business from moving forward. Additionally, patents
provide monetary incentive for new creations, which is a benefit to both
brands and consumers.

Like trademarks, there steps to be taken in order to file for a patent22:

1. Make sure your invention is patentable.

As mentioned, inventions to be patented must be new and useful.
Additionally, according to the USPTO, “an invention cannot be
patented if a) the invention was known or used by others in the U.S.
or patented and described in a printed publication in this or a foreign
country; or b) the invention was patented or described in a printed
publication in the U.S. or a foreign county or in public use or on sale
more than one year prior to the application for patent in the U.S.”23

2. Search prior public disclosures (called “prior art”)

Not as easy as searching for trademarks, searching for prior existing
patents is time consuming and confusing for most novices. Research is
often best done with the help of an attorney.

22 “Small Business - Copyright Law and Registered Copyrights - Copyright Infringement Information - USPTO
Stopfakes.gov.” United States Patent and Trademark Office. Web. 01 Aug. 2010.
23 “Small Business - Copyright Law and Registered Copyrights - Copyright Infringement Information - USPTO
Stopfakes.gov.” United States Patent and Trademark Office. Web. 01 Aug. 2010.

© 2010 4imprint, Inc. All rights reserved

3. File for a patent

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An application must be filed with the USPTO and patent applications
are extremely complex. Two types of applications exist: A non-
provisional that will include descriptions, declarations, drawings and
search and examination fees; and a provisional that is designed to
provide a lower cost and allows for joint filing of U.S. and international
patents but doesn’t offer the same protections.

Once a patent has been approved, a company can move forward with mass
production and sales or actions that otherwise deem a patented item profitable.

The thing about honoring someone else’s patent is that it won’t likely be
necessary unless your business is required to go through its own patenting
process—new patents cannot be obtained on existing ones.

Claim it
Intellectual property law can be confusing … but once understood, copyrights,
trademarks and patents can protect a business’ investments, its creation and
the very things that differentiate itself from competitors. Additionally, knowing
how intellectual property works means a reduced opportunity for a business
to unknowingly infringe upon another company’s rights which often results in
litigation. Protect your brand, grow your business and support the free market
with copyrights, trademarks and patents.

Speaking of legal bits …

This Blue Paper was written as an informational presentation and overview of
intellectual property and how it relates to entrepreneurs, business owners and
marketing professionals. Under no circumstances should the information herein
be construed as legal advice. Consult with an attorney for more information.

4imprint serves more than 100,000 businesses with innovative promotional items throughout the United States,
Canada, United Kingdom and Ireland. Its product offerings include giveaways, business gifts, personalized gifts,
embroidered apparel, promotional pens, travel mugs, tote bags, water bottles, Post-it Notes, custom calendars,
and many other promotional items. For additional information, log on to www.4imprint.com.

© 2010 4imprint, Inc. All rights reserved