An Administrator's Guide to California Private School Law

Chapter 20 - Intellectual Property

are not for the benefit of the school, it is important for schools to clearly establish their independence from these trusts. When soliciting funds for an independent trust, the school must clearly state that the purpose of the trust is independent from the school. Moreover, because a donation to this trust is not for the benefit of the school, the trust is not covered by protections extended to nonprofit corporations pursuant to Internal Revenue Code section 501(c)(3). Donations made to the trust are not generally tax deductible.

C HAPTER 20 - I NTELLECTUAL P ROPERTY

Section 1 I NTELLECTUAL P ROPERTY I SSUES Intellectual property is created anytime an individual takes an abstract idea and puts it into a fixed, tangible form. Scientific creations, such as machines, tools, devices, methods, and computer software can all be intellectual property. Other examples of intellectual property include literary and artistic works, such as instructional materials, films, videos, musical scores, books, electronic textbooks, art, plays, and poems. Intellectual property can be protected through copyright, trademark, patent, and trade secret laws. In this section, we will discuss trademarks, service marks, copyrights and trade secrets as they are the kinds of intellectual property school administrators are most likely to encounter. A. T RADEMARK /S ERVICE M ARKS All of us are familiar with the power of trademarks and service marks. For example, when we see the famous McDonald’s Golden Arches or the Green Starbucks Mermaid we readily and easily identify those symbols with the companies they represent. The symbols represent not only the service and products of those companies, but also their reputation and goodwill. This is one of the reasons trade and service marks are so highly valued and protected by law. “A trademark includes any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.” 2549 A service mark is similar to a trademark, except that it identifies and distinguishes the source of a service rather than a particular product. 2550 A private school may apply to register a service mark of its name, logo, design or symbol that represents the educational services it provides to students and their families. A school may also apply to register trademarks that identify its goods and products such as mugs, sweatshirts, and other merchandise. Since the benefits of registering trademarks and service marks are essentially the same, the term “trademark” is often used to refer to both trademarks and services. 2551 The United States Patent and Trademark Office (USPTO) is the federal agency responsible for granting patents and registering trademarks 2552 . The USPTO registers trademarks based on the commerce clause of the Constitution 2553 .

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 611