Intellectual property, including a company’s creative works, brand marks, ideas, inventions, processes and confidential information, can be the most valuable assets of your business. An intellectual property lawyer can help you identify what of your intellectual property is protectable and what tools you can leverage to protect it, whether it is trademarks, patents, copyrights, non-disclosure agreements, etc. Here is a brief overview of some IP basics.
Trademarks protect marks–most commonly a logo or name–that distinguish your brand from another’s. Trademarks can include a distinctive name, symbol, phrase or, possibly, colors or packaging that makes it easy to identify the source of a product.
While using a trademark in commerce may lead to common law protection, registering your marks with the United States Patent and Trademark Office (“USPTO”) enhances the scope of your protection and the set of remedies available to you. In order for your mark to qualify for USPTO protection, it must be distinctive.
Registration provides significant benefits, including constructive notice to the public, the exclusive right to use the mark in connection with the particular classes of goods or services listed in the registration and a federal cause of action for any infringement.
Federal patent protection grants inventors an exclusive right to make, use, sell or import certain inventions or discoveries for a limited time in the United States.
Not all inventions or discoveries are patentable. The subject must be novel, useful and nonobvious to qualify. In recent years, the United States has switched from a first to create to first to file system, which means that the inventor with the earlier filing date will get the patent. As a result, the timing of the filing is critical. The patent application process can also be quite detailed and elaborate. Many entrepreneurs avail themselves of simpler provisional patent filings, which preserve an earlier filing date for a period of one year.
A patent issued by the USPTO only applies in the United States. For patent protection in other countries, the Patent Cooperation Treaty provides procedures by which applicants may file one international patent application for simultaneously transmittal to apply for national patents in the 148 treaty countries.
A copyright is a form of protection provided by the Federal copyright statute for “original works of authorship” fixed in a tangible medium of expression. Copyright protects the form of expression, not the underlying facts, ideas or methods of operation. It applies to both published and unpublished intellectual works such as poetry, novels, films and songs as well as advertising copy, graphic art, designs, computer software and architecture. The copyright holder can prevent others from selling, performing, adapting, or reproducing a work without permission.
In most cases, with the creation of a new work, copyright automatically attaches to the creator. The owner may choose to register it formally with the United States Copyright Office, which provides significant advantages. These benefits include having the copyright serve as a matter of public record, the ability to bring a lawsuit for infringement, certain presumptions of evidence of validity, possible statutory damages and attorney’s fees and registration with U.S. Customs to prevent the import of infringing copies.
Trade secrets are a company’s confidential, proprietary information that provides a business with a competitive advantage, and can include a broad range of information from customer lists to manufacturing techniques or a food recipe.
Protection of trade secrets largely comes by state statutes modeled after the Uniform Trade Secrets Act, which provides for protection if:
- The information is the type eligible for protection such as “a formula, pattern, compilation, program, device, method, technique, or process”;
- It provides the business with actual or potential economic value by not being known or readily ascertainable; and
- The company takes reasonable efforts to maintain its secrecy.
Trade secret protection continues indefinitely until public disclosure of the secret occurs, so businesses must guard against inadvertent disclosure. Misappropriation, a form of illegal, unfair competition, takes place when the trade secret is acquired either by improper means or through breach of confidence.
Businesses commonly protect trade secrets from disclosure by implementing non-disclosure agreements with employees and third parties. These agreements set out the rights and duties relating to confidential information. Whether and how extensively your company has used NDAs may be a factor that a court uses to ascertain whether you took “reasonable efforts to maintain secrecy.”
In today’s competitive environment, it is imperative for a business to understand its intellectual property assets and how to protect them. An intellectual property attorney can help your company maximize your competitive advantage by creating a comprehensive IP protection strategy.