When starting out a business, it’s important to explore your options for protecting your ideas. Intellectual property coverage is a huge concept that all business owners should pay attention to early in their business’ life.
What is intellectual property?
“Intellectual Property” (“IP”) is an amorphous area of the law built to protect inventions or creations. These tangible and intangible brand assets provide economic value to businesses. Generally, intellectual property protections apply solely within the United States.
The subsections of IP include trademarks, patents, copyrights, and trade secrets. Each subsection focuses on a different type of asset and allows business owners to earn recognition or financial benefits from the applicable asset.
How do I know what type of protection is right for me?
An IP protection strategy begins with a comprehensive review of your business’ assets. Take the time to consider your branding, your tangible and intangible property, your products, and the services you seek to provide. This will help you narrow down and identify the scope of protections you need. This can be a difficult task because, by its very nature, the categories of IP may overlap and more than one protection can apply at a given time.
For example, a graphic design business may simultaneously develop a software program to refine logos while also creating its own proprietary branding information. In these circumstances, the business might need to copyright the code for the program, patent any novel algorithms, and trademark the branding information.
However, this is a necessary endeavor, as the pursuit of IP protection secures an economic advantage for business owners by defending your ideas, products, and services. All forms of IP – except trade secrets – provide the opportunity for federal registration to enhance and enforce your ownership rights.
| TRADEMARKS | PATENTS |
| Branding asset for either goods or servicesUnique and distinct names, logos, and designsRight to exclude and/or ownershipFederal protections available | Technical asset for inventions and productsNew and useful process, machine, manufacture, or compositionRight to excludeFederal protections available |
| COPYRIGHTS | TRADE SECRETS |
| Creative asset for original works of authorship in a fixed tangible mediumRight to prevent copying and/or ownershipFederal protections available | Confidential business information that provides an economic advantageAll information so long as maintained in secrecyRight against misappropriationNo federal protections |
What is a trademark?
Trademarks serve as a form of brand asset for either goods or services.
Trademarks can be a word, phrase, symbol, or design that identifies your goods or services. They act as the basis of your “good will” in the community. As they fall under the “intellectual property” umbrella, trademarks provide legal protection for your branding by helping prevent counterfeiting and fraud in your field. A key to a good trademark is that it is distinct and unique to the business’ brand.
Standard character trademarks consist of words, letters, numbers, or a combination of those without font, size, color, or design specifications. Form, or logo, trademarks are stylized designs which may or may not be in specific colors. Some trademarks are even a combination of a standard character and logo!
Trademark protection begins the moment the goods are used in commerce in connection with the relevant goods and services. There are various types of trademark protections – common law, state registration, federal registration, and international registration – that all provide varying rights and limitations.
What is a patent?
A patent is a technical asset that protects inventions, corporate products, and service products for the business inventor. Patent protections allow a business inventor to exclude other from making, using, offering, or selling the invention within the U.S. and from importing the invention into the U.S.
Patents are, generally, for any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement” of these categories. There are three types of patents: utility patents, design patents, and plant patents.
Patents publicize the schematics and designs of an invention for a period of 20 years from the date of when the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed.
What is a copyright?
Copyrights serve as a form of creative asset for original works of authorship that is fixed in a tangible medium of expression. Copyright protections protect against the copying of the work of authorship.
“Authorship” refers to the subject matter of a copyright which falls under several overarching categories, including literary or textual works; pictorial, graphic, and sculptural works; musical, dramatic, and choreographed works; sounds recordings; and computer programs.
To be “fixed” means that the work is in its final or “well-considered” version in a tangible medium of expression. If a work is unscripted, unrecorded, or otherwise considered a draft, it is not fixed for the purposes of copyright protection.
While formal registration with the U.S. Copyright Office provides protections such as statutory damages and ownership rights, copyright exists the moment the author creates their original work.
In general, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For anonymous work, a pseudonymous work, or work made for hire, the copyright endures for a term of 95 years for the fear of its first publication or a term of 120 years form the year of its creation – whichever expires first.
What is a trade secret?
Trade secrets are confidential and economically advantageous business assets. Generally, trade secrets refer to any secret process, pattern, method, or practice belonging to a company. Trade secrets provide competitive advantages for companies by providing a “specialty” value to a business’ products or processes.
While a trade secret can be anything from a formula to a recipe, all trade secrets share the following characteristics contain private information, provide an economic benefit to a business, and have an actively protected secret. The more economic and competitive value provided by a trade secret, the more protection a holder will be given under the law.
Trade secrets potentially last in perpetuity, so long as the material remains confidential.
Are there any tips for protecting my IP?
Strong contractual protections are an easy step to initially protect most of your IP.
A non-disclosure agreement (“NDA”) prevents a party from sharing information defined by the terms of the agreement. In general, an NDA will stop employees and business partners from disclosing detail and info about your business to others. A strong NDA can prevent an employee from sharing sensitive IP-related information, such as components of a trade secret or drafts of an upcoming invention. These can ensure that confidential data remains secure and within the business.
A non-compete agreement (“NCA”) prevents a party from using the skills and information it learned during its employment against its former employer. In general, a NCA can prevent former employees from using your IP against your company based on the terms of the agreement. A strong NCA can allow a business owner to keep clients, products, services, and prevent unfair competition from competitors.
What happens if my IP is stolen?
If another party has stolen, or otherwise misappropriated, your IP, you may be entitled to file an infringement or misappropriate action. Depending on the nature of the violation, you may file a civil or criminal matter in state or federal court.
| Trademark Infringement | Patent Infringement | Copyright Infringement | Trade secret Misappropriation | |
| Violation | Use of similar or identical trademark | Use or sell patented invention without permission | Reproduces, displays, performs, or distributes work without permission | Secrets are poached or stolen through espionage |
| Type of Action | Civil or criminal | Civil | Civil or criminal | Civil or criminal |
Upon learning of any of the above violations, the first step is to send a request – typically a cease and desist – to stop the violation in an effort to stop the IP infringement or misappropriation.
In the event a cease and desist does not work or isn’t applicable to your IP violation claim, you may decide to pursue legal action. Legal action will likely involve registration of the IP in question and the filing of a Complaint in state or federal court.
Where do I start?
Choose a strategy to protect your ideas takes careful consideration. A licensed attorney is best suited to analyze your tangible and intangible assets in order to develop a proactive protection strategy.
Reach out to us if you are interested in learning more about intellectual property, your rights, and preventative measures to aid your business or take a look at our services.