Intellectual Property: A category of intangible rights protecting commercially valuable products of the human intellect. The category comprises primarily trademark, copyright, and patent rights, but also includes trade-secret rights, publicity rights, moral rights, and rights against unfair competition.
—Black’s Law Dictionary
Many people confuse the different types of intellectual property. The confusion is understandable, considering that even the United States government encountered difficulty in making laws for intellectual property. The Constitution contains the basis for laws regarding patents and copyrights.
The Congress shall have power. . .To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. . .
—Article I, Section 8
This clause is known as the patent and copyright clause.
In 1870, Congress enacted the first U.S. trademark law. It was later declared unconstitutional because it was improperly based on the patent and copyright clause in the Constitution. Finally, in 1881 a new law, based upon the commerce clause, was passed–just as Thomas Jefferson had suggested nearly a century before, on December 9, 1791. To make matters more confusing, patents and trademarks are registered through the United States Patent and Trademark Office; whereas, copyrights are registered through the United States Copyright Office, which is a department of the Library of Congress.