​What is Intellectual Property?

By Jessica Houghton

Property, or “IP” for short, is generally defined as property that is produced from the mind. IP includes ideas, inventions, designs or even business models. Like tangible property, the law allows IP to be protected from theft and misuse. Each type of IP is protected in different ways, and it can be hard to distinguish what category your IP falls into.  Therefore, it is important to understand each one.

Trademarks

A word, name, signature sound, color, symbol and even a smell that distinguishes the source of one good or service from another are all trademarkable. This is because a consumer will directly associate the brand that sells the good or provides the service with the trademarkable element. Some famous examples of trademarks include the Nike swoosh, the NBC chime, or the word Apple for Mac computers.   

The main goal of trademark law is to protect the consumer. When consumers buy a product with your brand on it, they know the source of that product because of your trademark. As your business develops, your customers will increasingly associate things like your logo, colors, and slogans with your brand. Brand loyalty requires enormous effort. Trademark law allows you to protect these efforts.

If you choose not to register your trademark and another company uses your signature word, logo, etc., you would have to take legal action and convince a court that you were the actual owner of the trademark, which can be difficult. Registering a trademark creates a strong presumption that you are, in fact, the rightful owner, and consequently will save you a lot of time and legal fees. To register your trademark, the trademark must be “distinctive,” meaning it has to have some unique character that does not merely describe your underlying goods or services.  If your trademark is determined to be valid, it will be filed for public examination in case someone else believes that your trademark would conflict with their existing trademark. At this point, if there is no opposition, then the trademark will be approved. Your trademark may be renewed every 5 years as long as you are actively using it.

Copyrights

Original writings, books, movies, music, architectural designs, patterns, and graphics are all copyrightable material. The goal of copyright law is to give exclusive use of the material to whomever created it.

As soon as you create a copyrightable work and put it out to the world, you have copyrights in that work. However, registering a copyright can be very useful if your IP is stolen or used by someone else. In those cases, like with trademark law, the only way to legally enforce your rights is to take the infringer to court. In court, having a copyright registration creates the presumption that you are the legal owner of that work. This presumption puts the burden on the thief to prove they are the rightful owners or are not infringing. Additionally, registering your copyright will ensure that only you have the right to your original work. Finally, registration allows you to recover statutory damages if you have to sue an infringer!

To register a copyright, you must submit your application to the U.S. Copyright Office (a branch of the Library of Congress). The application must contain your case for the originality of the copyright and a copy of whatever you are submitting to be copyrighted. If it is determined that your copyright indeed is original, then then your work is granted copyright registration protection.

Patents

A patent is given by the government so that an inventor can have the exclusive rights to production of their invention for a limited time. Things that are patentable are original inventions or innovative processes. Something that is patentable must be useful, original or novel, and must be proven to work in order for another person to be able to recreate it when the patent expires. Patenting is valuable because it ensures the invention can not be replicated by anyone else, allowing the owner the opportunity to exclusively control the invention, hopefully rewarding them financially.

To register a patent, you must first file a claim with the U.S. Patent and Trademark Office  (USPTO). The claim must outline how the invention meets the patent requirements. Additionally, you must provide documentation about how you created the invention that is detailed enough that someone else could create it once the patent expires. Out of all IP, registering a patent can be the most complex process and it is almost always best to seek specialized legal counsel.

Trade Secrets
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A trade secret is a unique and secret step in a process. Often times when something does not qualify for a patent, you can protect it as a trade secret. Unlike copyrights, trademarks, and patents, there is no official way to register a trade secret. In fact, registration would ruin the secrecy, which is an essential element of a trade secret.

It is still important to take steps to protect trade secrets in the case you need to take legal action. This is done by keeping thorough records of the trade secret, the process, and what steps were taken within the company to protect it. You should seek legal counsel for best practices to keep your trade secret safe.

Conclusion

Not all IP can qualify as a trademark, patent, or copyright. However, it is important to know what can be classified as IP and how you, as the creator or owner, can protect it. In many industries, protecting your IP is not only your competitive edge, it is your entire business. Finally, it is your right as a business owner to have your ideas, processes and images protected. If you think that you have something in your business that would qualify as IP, you should take steps to get it protected as soon as possible. Staterra Law specializes in helping small business owners can protect their IP. We welcome questions and inquiries to better assist you on your track to registering and protecting your IP.

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