Technology and Intellectual Property Rights

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• What Intellectual Property Rights Can a Water Fund Have?

  A water fund might have intellectual property rights as well as financial assets or real property. Intellectual property rights include trademarks, copyrights, and trade secrets. A water fund might create its own intellectual property. For example, a water fund could promote its own name as a brand or publish its own research. Or, a water fund might license rights to use intellectual property rights belonging to others. For example, a water fund could license the right to use the name of a conservation sponsor or the right to reproduce particular marketing materials.

• ​What Are the Benefits of Intellectual Property Rights?

  Intellectual property constitutes a valuable asset that a water fund can license or sell. In addition, by claiming intellectual property rights, a water fund can publicize its own accomplishments and attract inquiries from interested parties. In this way, a water fund can receive the credit it is due for its ingenuity and encourage others to follow its example.
  

  Some water funds have at least in part a public purpose, however. A water fund might be subject to a law or regulation that obligates it to share its intellectual property freely with others. Or, a water fund might choose to subordinate its individual interests to the greater public good. What Is a Trademark? A trademark is a word, design, or other symbol that is used in commerce to designate the source of goods and distinguish them from goods of others. A trademark denotes particular quality standards, represents business goodwill, and protects the public from confusion and deception.

• How Should a Water Fund Choose a Trademark?

  A mark that is fanciful or arbitrary, such as “NRDC”, has the potential for a higher level of protection than a mark that is descriptive, such as “Water Fund.” A mark that includes a design, such as a distinctive silhouette of a bear, or a tag line, such as “TheEarth’s Best Defense,” will be eligible for greater protection that a word alone. It will be harder to prove infringement of a trademark with a design or tag line, however, because there is unlikely to be confusion unless most or all of the elements are used.

  When selecting a trademark, it is important not to infringe the rights of others, as well as securing rights oneself. For that reason, it is advisable to do a trademark search for prior users in the relevant markets before attempting to protect a mark.

• How Can a Water Fund Protect Its Trademark?

  Trademark rights are territorial. In the United States, the party who first uses a trademark in interstate commerce has superior rights, regardless of whether the mark is registered. There are benefits to registering a trademark with federal or state governments in the United States, however, including evidence of ownership and the right to sue in federal court. In most countries, trademark rights are obtained exclusively by registration with the appropriate government agency. 78 countries, including the United States, use the International Classification system for trademark registration. There are currently 45 different International Classifications. A trademark used with goods of one type (Apple computers) might not infringe the same trademark used with goods of a different type (Apple records). There is a separate fee for registering a trademark in each class and country.

  Ongoing vigilance strengthens trademark rights. Once registered, a trademark should be designated with the superscript ®. In the United States, an unregistered trademark may be designated with the superscript ™. The trademark owner should take care to use the trademark as an adjective (Kleenex tissues), rather than as a noun (Kleenex), to reinforce that it indicates a particular source of goods. A trademark owner must use reasonable efforts to police unauthorized and improper uses of the trademark. Otherwise, the trademark will be diluted because it will no longer be associated in the public mind with a particular source of goods.

• How Can a Water Fund License Its Trademark?

  Trademark rights may be licensed. For example, a water fund might license its trademark for use by an upstream project (“a [water fund trademark] project”). Or, a downstream funder might license its trademark to the water fund (“support provided by the [funder trademark] foundation”). A trademark license agreement should specify exactly how the trademark may be used, including such factors as prominence, context, attribution, and design. The trademark owner might retain the right to approve each use in advance. Typically, a trademark license agreement will provide that all goodwill in the trademarks gained through use belongs to the trademark owner.
  

• What Are Service Marks and Trade Dress?

  There are other intellectual property rights that are similar to trademarks. For example, service marks identify the origin of particular services in the same way that trademarks identify the origin of particular goods. Trade dress refers to the overall look and feel of goods, such as configuration or packaging, and may be eligible for protection if non-functional and distinctive. In general, the rules governing these intellectual property rights parallel the rules governing trademark rights in jurisdictions that recognize them.

• What is a Copyright?

  Copyright protects an original work of authorship fixed in tangible form. Copyright protects a particular expression, not a general idea. Copyright attaches automatically, upon creation of the work, and entitles the author to control reproduction, adaptation, distribution, and display of the work. Copyright is not dependent upon notice; however, appropriate notice (© [owner] [year]) will serve to alert third parties that copyright is claimed. In the United States, it is not necessary to register a copyright in order to protect it. Registration is, however, a prerequisite for filing an infringement lawsuit, and is a prerequisite for statutory damages and attorneys’ fees.
  

• How Can a Water Fund Use Copyrighted Works?

  A water fund may copyright its publications, such as reports, manuals, and marketing materials. This may help build the water fund’s reputation as an entity with expertise and influence, attracting inquiries and possibly support. When using the works of others, a water fund should take care to limit its borrowing to “fair use” that does not affect the potential market or value of the work used. Infringement occurs when a work is substantially similar to a copyrighted work.

• What Is a Trade Secret?

  A trade secret is any information used in business that confers a competitive advantage over others who do not know the information, and that is subject to reasonable efforts to maintain secrecy. For example, formulas, processes, manufacturing equipment, customer lists, designs, and products can all be trade secrets. Reasonable efforts to maintain secrecy depend on the circumstances, and can include marking the trade secret as “confidential,” restricting access to those who have a “need to know,” and using locks (or their electronic equivalent) to prevent third party access.
  

• How Can a Water Fund Use Trade Secrets?

  Most water funds do not compete like businesses. Therefore, they are less likely to need trade secret protection for their information. In transactions with funders and partners, however, water funds should take care not misappropriate or publicize information that those entities consider trade secrets. To prove misappropriation of a trade secret, the owner must show that the trade secret was acquired through improper means or in violation of duties owned to the owner, causing damage to the owner.