IP Primer - nuts an bolts for your business

Intellectual property is a term used to describe a variety of creative property that you can own and protect. It is the expression of ideas in either a creative, scientific, or business sense. The US government offers rights to the people that create and express themselves in unique ways by allowing individuals and businesses to protect their original works. There are three categories—copyrights, trademarks, and patents.

Copyright

A copyright provides protection to authors of original works of authorship. It bestows a legal right to exclude others, for a limited time, from copying, selling, performing, displaying, or making derivative versions of that work. Copyright protects your right to reproduce, distribute, perform, or display the created work, and prevents other people from copying or exploiting the creation without your permission. When an original work is created in a fixed form, copyright law begins to take effect. For additional protections, like the ability to sue and receive money for the wrongful use of your copyright, you will need to file the creative material you want protected with the copyright office.

An example of copyrighted/copyrightable material would be the photos taken by a photographer for a wedding. Those individuals interested in using and printing the photos must usually pay for the right to do so.

Usually, only the author of the creative work can claim the copyright. The large exception to this rule is a concept called “works made for hire.” When a work is made for hire, it means the employer is considered the author even if an employee actually created the work. The employer can actually be firm, an organization, or an individual.

These works for hire can be litigious issues. If it not made clear that the works created by the employee are works for hire, and employee might think that he or she is the author and owner. To avoid issues like this, we recommend that part of the employment agreement contain a “works for hire” clause, where the employee agrees that any creative work made for the business will be credited to the business, and not to the employee. If it is an independent contractor that is creating the work, there should be a signed agreement that has the contractor expressly agree to have the work be considered a work made for hire.

Trademark

A trademark is any unique signifier in a word, symbol, design, device, slogan, or combination that identifies and distinguishes your goods and services from others. Registering a trademark helps protect your business by preventing other individuals from using your same name without permission, as well as preventing use of names or marks similar yours. If you have a brand and name that you want to protect from competitor use as you open more locations, you should consider getting a trademark.

An example of a trademark would be the mark Coca-Cola. When you see that name, you can probably visualize the stylized version that appears on the Coca-Cola products. Both the name and the style are trademarked, preventing other people from using either without the permission of the trademark holder.

Once you have secured your trademark, you must continually use it to maintain your ownership. Renewal happens every 5-10 years, depending on the class and type of trademark. At the time of renewal, you must show that your trademark has been in use.

Patents

A patent gives you are given a legal right to exclude others from using, selling, or making your invention or discovery for a limited time. Patents are given for technical inventions you have created, such as machine designs, complex machinery, mechanical processes, chemical compositions, and pharmaceutical drugs.

To receive a patent, your application will need to show the invention is novel, that it is not obvious, and that it is useful. Novelty means that the invention is not publicly known, is different than what is already publicly known, or is new to already existing knowledge in the field. An invention will not be considered novel if the application for the patent is made more than one year after sale, public disclosure, use, or offer of sale of the invention in the United States. For a patent to be nonobvious, individuals working in the field would not consider the invention obvious. A general example of a patent would be a new type of hybrid engine.

One of the downsides of filing a patent is that then your invention will then be publicly disclosed. Because of this, some business owners and inventors may decide not to file for a patent and keep the item a trade secret. If you choose to go this route with your invention, you still need to take steps to protect it. There needs to be a non-disclosure agreement or confidentiality agreement with anyone that could come into contact with the information or will come into contact with the information. This can include contracts with manufacturing companies, employees, or any other third party vendor.

As always, if you have any questions regarding whether you or your business has protectable intellectual property, please give us a call.