Dear Rich: Nolo’s Patent, Copyright & Trademark Blog

Dear Rich: I have a question. Is it possible to copywrite an unknown tax loophole strategy? Or maybe even repackage a common tax loophole strategy? First, a brief note: Although it may seem insensitive to some readers, this blog will no longer accept questions from people who use the word "copywrite" instead of "copyright." (Copywriting refers to the business of creating promotional or advertising text.) The spellings for  the three topics we cover -- copyrights, trademarks, and patents -- are indicated in our blog title, domain name, and within all of our entries. Since the Dear Rich staff works diligently to provide answers to your questions, we feel that as a matter of respect, readers can choose their words with the same diligence. As always, exceptions will be extended to those with disabilities.  

In answer to your question, no, you cannot acquire copyright protection for a tax loophole strategy. Copyright does not protect ideas, methods, or systems. You may be able to apply for a patent for a tax strategy (the first such patent was issued in 2003), though a recent court decision makes it much more difficult to acquire such patents. In general, the popular sentiment about tax strategy patents is not good and as a senator, President Barack Obama sought to end them.

Finally, you refer to an "unknown tax loophole strategy". By definition, tax loopholes are provisions in the tax code that are exploited for personal gain. Therefore, we assume by using the term "unknown" that you mean you are the first to discover how to exploit an existing tax code provision. That can be dangerous territory (and may sometimes be illegal) and we advise you to tread carefully when touting the benefits of your strategies. 

When In-N-Out Burger sued a similarly named smog check company, the defendant raised an interesting question, "How can it be infringement? We're not selling hamburgers or hot dogs."

How can it be infringement? Let's see, the burger company could argue (a) that its drive-in origins show a likelihood of expansion or (b) that it plans to someday offer an innovative menu of lube jobs and fries that others have pioneered, or (c) that there is a strong California connection between drive-in burgers and smog, or (d) that the In-N-Out mark has become so famous that the smog check use is diluting (I vote for that one). Of course, defenders of the In-N-Out trademark will have a busy time protecting the fort; there are registered marks using "In and Out" variations for rain resistant fabrics, banking services, electrical connection boxes, real estate services, and more.

How many reporters does it take to screw in a trademark? It's not uncommon for writers to mix up their intellectual property terms so we'll send Chronicle reporter Henry K. Lee a review copy of Patent, Copyright & Trademark for writing that the fast food company was claiming infringement of "its copyright under state and federal trademark laws." Ouch.