Intellectual property is protected by a variety of IP rights. Common IP rights include patents (grill tongs), trademarks (“I’m lovin it.”), copyrights (The Hunger Games) and trade secrets (Google search algorithm). Familiarity with the various types of IP rights is essential for business owners. When you know how to identify your business’ IP and understand how to secure and leverage your IP rights, you quickly realize that your business has more to offer (and more to lose) than you could have possibly imagined. Your business’ IP is its progress, its profit and its prestige.
When most people think of IP rights, they think of patents which pertain to legal rights over inventions (product or process). A patent gives an inventor the right of exclusivity over her invention. In order to obtain a patent, an individual must submit an application in which they disclose how the invention or process works. The U.S. Patent and Trademark Office (USPTO) examines the application to determine if the invention meets the standards for patentability. In exchange for the patent, information about the invention, including how it works, will be made public. Patents are generally enforceable for 20 years from the date of the application. Patents make good business sense because copycats abound in today’s technological age. The right of exclusivity gives an inventor the right to prevent others from copying and selling the protected invention--a right that is enforceable in court. That exclusivity gives you, the business owner, the right to reap the financial benefits of the hard work that goes into creating something new.
Signs. Designs. Symbols. Slogans. Logos. Jingles. These are all things covered by trademarks. The rights of a trademark owner are similar to those of a patent holder in that the trademark owner has a type of exclusivity over the use of the mark. Trademark owners can build what is called “goodwill" (the value of the reputation of a business) in a mark with the peace of mind that they have a legal right to prevent others from using the mark for their own financial gain. Unlike patents, there are different layers of protection when it comes to trademarks. There are “common law trademarks” which arise simply from the creation and use of a mark and there are “registered trademarks” which are granted by the USPTO. Registered trademarks have broader protection than common law trademarks but can be more difficult to obtain. Protection begins as soon as the mark is used in commerce and lasts for as long as the mark is in use. All the hard work that goes into creating and building a brand or reputation are reflected in the intrinsic value of your trademark. You should protect (and enforce) your trademarks because the trademark represents the sum of your business’ efforts and allows you, and you alone, to capitalize on those efforts.
Copyrights cover creative, artistic, and technical works. Photographs, music, movies, literature, technical writings, compilations, manuals, art, presentations and plays are the types of things that are protected by copyrights. Copyright holders enjoy a number of exclusive rights over their works including the right to publicly perform or display a work, the right to make copies of a work and the right to create what are known as “derivative works” (a work based on the original work). The public is able to use a copyrighted work without the author’s permission if it qualifies as fair use (future “fair use” blog post is in the queue!). Like common law trademarks, authors do not need to do anything to enjoy their legal rights. Once the work is created, it is protected. However, there is a federal copyright registration process that is simple (when compared to the patent and trademark processes) and must be completed before initiating an infringement lawsuit. The duration of copyright protection varies based on the circumstances in which the work was produced but works are generally protected for the life of the author plus an additional 70 years. Copyright registration is certainly not an immediate necessity for businesses but is something that should be contemplated if infringement or unauthorized copying becomes an issue.
Trade secrets are the “secret sauce” of IP. These are things that are unique to your business and that uniqueness provides a significant advantage over your competitors. There is an inherent value in maintaining the secrecy of these types of things making patent protection insufficient because of the public disclosure requirement. One of the more famous trade secret examples is the recipe for Coca-Cola. There is no formal registration process for trade secrets. The laws essentially provide businesses with remedies when their secret proprietary information is stolen or leaked but leaves the responsibility for protecting the secrets to businesses. Business owners should adopt practices that protect their trade secrets such as non-disclosure agreements and non-compete agreements.
If you did not believe me before, you may now realize that IP is literally everywhere. Because it is everywhere, you will want to make sure that you identify your business’ IP (templates, algorithms, aerodynamic running shoes, slogan) and protect it accordingly.