Intellectual property is the vehicle by which you own your business identity, brand name, technology, works of authorship, or trade secrets. This guide provides an overview of the main three areas of intellectual property and the importance of understanding such to protect your business. Knowing about your rights and how to protect them is essential to any business’s success, especially small businesses. Your ideas and how you manifest and use them are more important than your physical assets. Continue reading below to learn why.
1. Patents
A patent grants property rights in an invention and allows its owner to exclude others from making, using, selling, offering to sell the patented invention and from importing the patented invention into the US.[1] The right to exclude granted by a patent should not be confused with the right of the patent owner him/her/itself to use, sell or offer to sell the patented invention.[2] In other words, a patent grants a negative right because it determines what others cannot do, not what the owner can do.[3]
Patents are governed by federal law only[4], unlike trademarks, and they protect the invention, not the idea for an invention[5]. There are three types of patents, each having different requirements.[6] However, the two requirements that a patent must-have, regardless of type, are novelty (i.e. the patent must not be already owned) and non-obviousness (i.e. it cannot be obvious to someone knowledgeable in the area that the invention is already owned).[7] As a patent owner, you could then bring an infringement action against a third party who violates that negative right.[8] Unlike trademark rights (see Trademarks section below), to enforce the negative rights stemming from the patent protection, you must maintain your patent rights by paying the patent maintenance fees.[9]
2. Trademarks
A trademark or mark is a symbol, logo, phrase, sound or a combination of these that identifies the source of a good or service (a product).[10] Trademarks can be protected at the federal level under the Lanham Act and at the state level under common law unfair competition principles and state trademark statutes.[11] Unlike patents and copyrights, trademark rights are created and maintained through commercial use of the mark, and registration is not required to have both ownership rights and the right to exclusive use.[12] However, as with other types of intellectual property, registration is highly recommended to protect those rights if you ever need to defend your mark against trademark infringement.
To register your mark at the state level, you must refer to your state’s rules and statutes governing trademark registration. To obtain a federal trademark registration, you must apply through the USPTO and ensure that your preferred mark is not confusingly similar to an already existing mark, regardless of whether that other mark is registered.[13] Conducting a thorough search is essential to obtain a federal trademark registration because the USPTO will reject your application if your mark is deemed confusingly similar under its guidelines.[14] Unlike a state registration, a federal registration protects your mark nationwide (and to some extent, against foreign infringement) and allows you to use the distinctive ® symbol.[15] Losing your federal registration would not strip you of your common law rights (such as ownership), but you would not have the several protections afforded by registration.[16]
3. Copyrights
Copyrights are another type of intellectual property protected under US law.[17] Copyright law rewards businesses with exclusive rights for any work of original expression, including literary, artistic, musical, and many other kinds of work.[18] The manner of expressing such creativity is virtually unlimited.[19] But keep in mind that a copyright protects the manifestation of ideas, not the ideas themselves.[20]
Copyrights are governed by the Copyright Act[21] and are created the moment an idea is committed to paper, film, computer memory or disk, or some other tangible form[22]. Neither publication nor registration of the copyright is required for a copyright to be created and, thus, have rights in such. However, registration is highly recommended because to file a suit for copyright infringement your copyright must be registered with the U.S Copyright Office, not the USPTO like for trademarks and patents. The digital era has made it easier than ever to copy and distribute protected material. [23] Thus, as an entrepreneur, you must know how to protect your business from potential infringement.
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[1] See Patent: Overview, Practical Law Practice Note Overview 8-509-4160. [2] See General information concerning patents, USPTO, https://www.uspto.gov/patents-getting-started/general-information-concerning-patents (last accessed Jul. 10, 2020) [3] See, supra note 1. [4] Id. [5] See, supra note 2. [6] See Intellectual Property: Overview, Practical Law Practice Note Overview 8-383-4565. [7] Id. [8] See, supra note 3. [9] See, supra note 8. [10] See, supra note 6. [11] Id. [12] Id. [13] See, § 1:3.Benefits of trademark registration, 1 Trademark Registration Prac. § 1:3. [14] Id. [15] Id. [16] See, § 2:17. Establishing trademark rights—Trademark registration and maintenance, Corp. Counsel's Guide to Intel. Prop. § 2:17. [17] See Copyright: Overview, Practical Law Practice Note Overview 2-505-5835. [18] Id. [19] Copyrights Basics, USPTO, https://www.uspto.gov/ip-policy/copyright-policy/copyright-basics (last accessed Jul. 10, 2020). [20] See, supra note 1. [21] See, supra note 9. [22] See, supra note 10. [23] See, supra note 9.