Individuals and companies may have ownership rights in various intellectual property (IP), either through their own efforts or that of their employees. Because IP can add value to your business, it is important to know what type of IP you have, how to secure IP rights, and how to protect it from infringement.
Obtaining rights in your IP is crucial for business success and may increase the value of your company for a possible future sale or licensing of business interests. A single business venture or idea may involve one or more types of IP, and therefore without consultation with an experienced IP attorney, it may be difficult to determine which type of IP you have and what type of IP protection to pursue. Successfully navigating the world of IP requires deep understanding and knowledge and should be done with the help of a qualified IP attorney.
The following is a primer on the four types of intellectual property and provides a general idea of how each type of IP may be relevant to your business.
Trademarks
A trademark is a word, symbol, design, or even a sound, that is used to identify a source of goods or services. A trademark allows consumers to know where the goods or services come from. Examples of well-known trademarks include the words NIKE, PEPSI, MCDONALD'S, but also Nike's swoosh, Pepsi's red, blue and white globe, and McDonald's golden arches, all of which indicate the source of the goods or services.
You should consider filing an application for a federal trademark registration to protect the branding of your goods and services. Such a registration offers significant protection for your mark by providing nationwide coverage against infringing use of the mark or confusingly similar marks for similar goods or services. A federal registration also allows for higher damages to be awarded and can last as long as the mark is used in commerce.
Patents
A patent is the exclusive right to make, use, sell, import, or offer to sell an invention. There are three types of patents that can be attained. A utility patent may be granted for a machine, article of manufacture, composition of matter, or a process, and covers how a thing is constructed, how it works, and/or what it does. However, a utility patent does not cover scientific theories, mathematical formulas, discoveries, or other abstract ideas. A design patent covers how a thing looks, i.e. its aesthetics. A plant patent can cover a new variety of plant.
A patent can be granted if the invention is new and also not obvious over what is already known. A utility patent provides nationwide protection and lasts for 20 years from the filing date of the application, after which the invention can be used by anyone.
Copyrights
A copyright is the right to prevent others from copying your original work of authorship, such as a photograph, book, article, movie, a recorded song, computer code, etc. A federal copyright registration allows you to control the distribution, reproduction, display, or performance of your work, and to control the production of derivative works based on your original work.
A federal copyright registration, like a trademark registration, offers nationwide coverage against infringing use of the work, and provides a powerful tool against infringers. A copyright lasts for the life of the owner plus 70 years.
Trade Secrets
A trade secret is information known only to people within a company and is used by the company as part of the business. A trade secret is not disclosed to anyone outside the company, and thus is not included in any application for a trademark, copyright, or patent.
A trade secret may involve a recipe for a product such as the recipe for Coca-Cola, a computer code for a program that is offered as software as a service (SaaS), research and development information, business methods, or plans for expanding a business. This information can be protected from disclosure through the use of contracts, passwords, restricted access, etc., and thus can last indefinitely.
Originally published 11 January 2024
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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