In today’s business and nonprofit world, intellectual property is one of the most valuable assets for a business. It allows a business/organization to have ownership over an idea, work, name, or symbol. This blog post will summarize the four most common types of intellectual property that you may want to consider protecting. These types include patents, trademarks, copyrights, and trade secrets.
US patents are regulated by the United States Patent and Trademark Office (“USPTO”). A patent protects ideas, methods, processes, and inventions that are novel, useful and non-obvious. The USPTO grants three types of patents under the Patent Act, i) utility patents are granted for inventions that are useful or beneficial (for example, machines, processes, manufactured goods etc.); ii) design patents are granted for new, original, and ornamental designs and iii) plant patents are granted to protect distinct and new varieties of plants.
Patent protection gives you the right (a) to stop other people from copying, manufacturing, or selling your inventions without your permission; (b) to exclusively use the invention; and (c) to sell or license the patent to others to develop or use.
Trademarks are also regulated by the USPTO. The USPTO’s website offers many resources and guides to educate individuals about the trademark registration process. Trademarks are used to identify the source of goods and services. A good example of this is Target’s bullseye logo. Whenever you see it, you know there is a Target store nearby. A trademark may take the form of a name, symbol, slogan, color, sound, scent etc. Most importantly, trademarks represent the goodwill a business or nonprofit may have earned in relation to their goods and services.
A federally registered trademark confers benefits that offer a trademark owner many advantages. First among these is that registration presumes that you are the owner of the trademark and gives everyone notice of your ownership. It also represents the ‘goodwill’ and reputation of the business or organization in the community (it may also have monetary value if it can be licensed for a fee). Additionally, it gives you the right to use the registered trademark sign ®. Finally, it gives you the exclusive right to use the mark and exclude others from using the mark.
Copyrights are regulated by the U.S. Copyright Office. A copyright protects “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Under the Copyright Act, copyright arises automatically when an author creates an original work that is fixed in a tangible medium of expression. The different categories of protected works under copyright law are, literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures, sound recordings, and architectural works.
Several advantages come with registering a copyright. First, for the duration of a copyright, a copyright owner has the rights to reproduction, adaptation, distribution, public performance, and public display (this is true for unregistered copyrights as well). Second, a registered copyright owner may sue an infringer for infringement and recover statutory damages and attorney fees if the work is registered before the infringement occurred or within three months after first publication. Finally, if the copyright is registered within five months of publication it is evidence of the validity of the copyright. This means that rather than having to prove that you are the owner of a valid copyright, the court will presume that you satisfy the first element for copyright infringement.
Trade secrets are protected in the US at the federal level under the Economic Espionage Act and the Defend Trade Secrets Act of 1996. The trade secret protections apply to businesses if the information is not generally known or ascertainable outside of the organization; the owner derives independent economic value or business advantage from the secret; and the owner makes reasonable efforts to preserve its secrecy. While the subject matter of the trade secret may be otherwise protected under other forms of intellectual property such as patents or copyrights, it may be more advantageous to take advantage of trade secret protections instead. One of the primary advantages of a trade secret is that protection lasts forever unlike copyrights, patents, and trademarks which all have specific termination periods. However, as a warning, trade secrets are lost if there is any disclosure of the content of the secret. For a business, sometimes there is more value in keeping a secret rather than applying for legal protection. The mystique of a closely guarded secret often acts as a draw in and of itself. For example, the Coca-Cola soda recipe is one of the most infamous trade secrets and its lore has become part of the Coca-Cola brand just as much as the ubiquitous red cans.
As discussed, the law offers many protections for intellectual property. If used wisely and strategically, they could enable the development, monetization, and commercialization of revolutionary and groundbreaking technology. List out the intellectual property developed and owned by your business, and consider how you can use it to foster innovation!
The above article is for general information purposes only and should not be relied upon as specific legal advice. This article, or contacting Apex, does not in any way form an attorney-client relationship. If you have any questions or would like to learn more, please contact Maha Jafarey at firstname.lastname@example.org.