Posted by Post Authored By: Natalie Elizaroff
Sometimes a good cloud of mystery creates the charm of intrigue – but is anonymity worth the cost? Trademarks, copyrights, and patents are different kinds of intellectual property that provides legal protection to brands, inventions, and artistic creations. [1] Oftentimes, these protections are granted to named individuals and companies. But, with people such as pseudonymous artist Banksy recently losing his trademark rights [2], what kind of protection can be obtained by individuals that choose to hide their identity behind an anonymous company or pen name?
Patents
Patents are relatively straightforward. In the United States, a patent application for an invention must be filed under the legal name of the true and actual inventor. In theory, an inventor could file a non-publication request which would grant temporary anonymity. There are strategic reasons why some inventors may want to keep the process confidential as long as possible, such as (1) keeping the invention out of prior art, which would help if the inventor wanted to file future patent applications for similar technology and (2) avoiding tipping off any competitors in a similar marketplace. To file a non-publication request there are four requirements:
- The non-publication request must be submitted with the application upon filing;
- The request clearly states that the application is not to be published under 35 U.S.C. 122(b);
- The request contains a certification that the invention disclosed in the application has not been and will not be the subject of an application filed in another country, or under a multilateral international agreement, that requires publication at eighteen months after filing; and
- The request is signed in compliance with § 1.33(b). [3]
There are a variety of strategic approaches that could be taken for filing, but regardless of publication status, once the patent issues, the name of the inventor would still be disclosed to the public and any anonymity and confidentiality maintained along the way would be lost. As such, patents provide the least amount of anonymity to individuals seeking to protect their work under a pseudonym.
Trademarks
Trademarks introduce some gray area, and the short answer is that trademarks can be anonymous – but not entirely. To file for a trademark, the application must list the name of the owner of the mark. The owner of the mark is the person or entity who controls the nature and quality of the goods/services identified by the mark. The owner may be an individual, corporation, partnership, limited liability company, or any other type of legal entity. [4] Accordingly, an Anonymous LLC or a private LLC can be formed to preserve an individual’s anonymity. An Anonymous LLC is simply a company where the company’s owners are not publicly listed in state records. [5] The creation of an Anonymous LLC maintains confidentiality, protects privacy, prevents harassment and unwanted solicitation, and provides asset protection.
Most states require disclosure of ownership information, which has a relatively easy loophole. To get around the disclosure requirement, it is recommended to form two LLCs, instead of just one. The Anonymous LLC would function as the first of the two LLCs and be the parent or holding company. The second LLC would be a local LLC that would function as the face of the company and conduct all the business. The registration would then be for child company and the ownership disclosure would be of the Anonymous LLC/parent company. [6]
Trademarks provide a broader range of protection because they can be prolonged indefinitely. While the method is not perfect, it provides more anonymity than a patent would and greater protections than a copyright for an anonymous creator does.
Copyrights
Individuals are free to publish works anonymously and obtain copyright protection. Copyright protects all original works of authorship, born from intellect, including literary, dramatic, musical, and artistic works, computer software, and architecture. [7] Generally, the term of protection for regular copyrighted work is the life of the author +70 years after his death. [8] In contrast, for pseudonym or anonymous works, the term of protection expires “95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.” [9] However, if at any point the author is identified, then the term of protection reverts back to the life of the author +70 years. [10]
Copyright protection affords the greatest protection to artists and individuals that want to truly remain anonymous. Although a mathematical nightmare with regard to the ‘terms of protection,’ it does not require the hassle of creating an Anonymous LLC in order to establish a protected right. On the other hand, it also loses all protections upon the expiration of the term, which is something that a trademark could protect indefinitely.
Conclusion
In sum, anonymity in the world of intellectual property is a complicated matter. There are some people that want to blast their name into the stars, while others prefer to maintain their air of secrecy. There may be a certain glamour to remaining anonymous, but the tradeoff is a limited scope of protection and a colossal headache to truly maintain that aura of mystery.
[1] Trademark, patent, or copyright, United States Patent and Trademark Office, https://www.uspto.gov/trademarks/basics/trademark-patent-copyright (last visited Aug. 1, 2021).
[2] Boodle Hatfield, Banksy loses trademarks but protects anonymity – what does this mean for street artists?, Lexology (June 30, 2021), https://www.lexology.com/library/detail.aspx?g=a9c2e26e-577e-4e49-815a-7ab41f6fd1cf.
[3] 1122 Requests for Nonpublication [R-07.2015], United States Patent and Trademark Office, https://www.uspto.gov/web/offices/pac/mpep/s1122.html (last visited Aug. 1, 2021).
[4] Basic Facts About Trademarks, United States Patent and Trademark Office,https://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf (last visited Aug. 1, 2021).
[5] Anonymous LLC States: Everything You Need to Know, UpCounsel, https://www.upcounsel.com/anonymous-llc-states (last visited Aug. 1, 2021).
[6] Larry Donahue, Preserving Anonymity in a State that Discloses Ownership Information, Law 4 Small Business, https://www.l4sb.com/knowledge-base/preserving-anonymity-state-discloses-ownership-information/.
[7] What Does Copyright Protect?, United States Copyright Office, https://www.copyright.gov/help/faq/faq-protect.html.
[8] 17 U.S.C. § 302 (2012).
[9] Id.
[10] Id.
About the author:
Natalie Elizaroff is a 3L at UIC School of Law, recently renamed from the John Marshall Law School. She is the Candidacy Editor of the Review of Intellectual Property Law, President of the Intellectual Property Law Society, and Treasurer of the Video Game Law Society. Prior to law school, Natalie graduated with a B.S. in Molecular Biology from Loyola University Chicago. Natalie currently works as a Law Clerk with Advitam IP, handling trademark litigation, patents, and other IP-related matters.