INTELLECTUAL PROPERTY 101
This article summarizes some of the most important points about
Trademarks, Copyrights, and Patents.
TRADEMARKS
What: The exclusive right to names, phrases, and graphics used to brand and distinguish your business from other businesses.
Examples: Your business name, slogan, graphic logo, and unique product names.
Ownership:
First to use: Whomever is first to use a trademark in commerce has priority to the mark within the class of goods and services for which the mark is used.
Unregistered ownership: A mark does not need to be registered to be owned. Common law ownership of a mark occurs simply by use.
Geographic areas: If unregistered, ownership may be limited to the geographic area where the mark is being used. If the mark is registered, the mark may be owned nationally with Federal registration or internationally if registered in other countries.
Duration: The ownership of a mark can last as long as you continue to use the mark in commerce.
Federal Registration:
Actual Use / Intent to Use: A trademark can be filed when it is actually being used in commerce, or prior to use on an "intent-to-use" basis if you want to secure your trademark ahead of time.
Security: Registration secures your ownership to the mark nationally with official government documentation of your ownership.
Deterrence: Registration deters infringers from stealing your mark and gives you more power to stop infringing uses.
Rights: Registration entitles you to more damages in court if you need to file a law suit.
Infringement: Occurs when there is unauthorized use of a trademark, or if there is a likelihood of confusion between two trademarks. Relevant factors in determining likelihood of confusion include the similarity of the marks and the similarity of the goods and services the conflicting marks apply to.
Article: How do I vet my trademark to avoid infringement?
Registration Process / Cost: Trademarks can be filed online with the U.S. Trademark office for $250 - $350 per class of goods and services. The application processing times are about 6 months or longer. Professional legal services are recommended for the filing of a trademark.
COPYRIGHTS
What: The exclusive right to creative works.
Examples: Graphics, writings, songs, videos, recordings, photographs, and sculptures.
Ownership:
Creation: Occurs upon your creation of an original creative work that exists in some form of media (i.e. written on paper, recorded onto a disc, saved on your hard-drive).
Unregistered ownership: A copyright does not need to be registered to be owned. Common law ownership of a copyright occurs simply by creation.
Duration: The ownership of a copyright can last for life plus 70 years.
Federal Registration:
Security: Registration secures your ownership to the copyright with official government documentation of your ownership.
Deterrence: Registration deters infringers from stealing your copyright and gives you more power if any disputes arise.
Rights: Registration is required before you can file a law suit for infringement.
Infringement: Occurs when there is unauthorized use of a copyright, or a work substantially similar to a copyrighted work. This includes unauthorized reproducing, performing, distributing, displaying, or creating derivatives of a copyrighted work.
Registration Process / Cost: Can be filed online with the U.S. copyright office. Fees range from $45+ per application depending on the type of application. Application processing times take about 6 months or longer. Professional legal services are available.
PATENTS
What: The exclusive right to inventions. Includes utility patents, design patents, and biological patents.
Examples: A process or method, a machine, a composition of matter, a manufactured article.
Ownership:
First to File: Occurs only with an official federal registration. Priority to the patent is given to whomever is first to file the application -- not whomever was first to invent the patent.
Duration: Ownership generally lasts for 20 years from the filing of the patent application.
Federal Registration:
Required for ownership.
Deters infringers from stealing your patent and gives you more power if any disputes arise.
Infringement: Occurs when there is unauthorized use of a patent, or use of an invention deemed sufficiently equivalent to a protected patent.
Registration Process / Cost: You must register your patent with the United States Patent Office in order to obtain exclusive rights to your invention. You will likely need professional assistance with the process. Government and professional fees range significantly depending on the type of patent filed. The process may take several years or longer.
TRADE SECRETS
What: The right to protect confidential information that has commercial value because it is not generally known to the public.
Examples: Customer contact lists, secret recipes, private techniques or processes.
Ownership: Lasts indefinitely so long as you keep your trade secrets a secret.
Keeping Trade Secrets Confidential
Keep the information secure
Do not disclose the information to others unless needed
If you must disclose the information (i.e. to an employee), keep disclosures limited and require such individuals sign a non-disclosure agreement or confidentiality agreement.
No Registration: There is no registration for trade secrets. Just keep them a secret.
Infringement: Occurs when someone improperly uses or discloses your trade secrets without your permission, including by unlawfully accessing and taking the information without your consent, or by breaching a non-disclosure agreement.
Independent Development: It is not infringement for someone to reverse engineer or otherwise independently develop the same trade secrets as you, so long as they do not do so by exploiting your trade secrets without your permission. You do not necessarily have the exclusive rights to your trade secrets, rather you have the right to prevent others from stealing them without your permission.
This guide is for informational purposes only and is not legal advice. Please contact us for professional assistance.