Intellectual Property 101 – Copyrights, Trademarks, Trade Secrets & Patents

Intellectual property is among the most valuable assets for many businesses today, especially for startups. That’s why it is important that you understand the basic elements of IP law.

In this post, we’ll explain the four main types of intellectual property and what you should know about each.

Copyright

When you create works such as art, music, writings, and computer code, you can use copyright law to prevent other people from copying your work without your permission. In most cases, you’ll own the copyright unless you are creating the work for your employer or unless you are creating the work for your client as an independent contractor and you sign an agreement giving ownership to them.

Copyright law in a nutshell:

  • Protects: Artistic works, literary works, computer code, etc.
  • Vesting: Upon the creation of an original work of authorship
  • Registration: Not required, but registration with the Copyright Office is recommended
  • Ownership: Usually in the creator unless the work is a “work made for hire” or transfer
  • Rights: Exclusive Right to Reproduce, Distribute, Create Derivative Works, Public Display/Perform
  • Term: Usually life of author plus 70 years
  • Infringement: Unauthorized exercise of the above rights (with identical copy or a substantially similar copy)

Trademark

When you are the first to use a name, slogan, logo, or other trademark in commerce to identify you as the source of a particular good or service, you can use trademark law to prevent others from using your trademark or any mark confusingly similar to your trademark if that use might cause consumer confusion. You should apply for a trademark registration with the United States Patent & Trademark Office to shore up your rights, but it technically isn’t required.

Trademark law in a nutshell:

  • Protects: Names, logos, slogans, colors, scents, etc.
  • Vesting: Upon use in interstate commerce
  • Registration: Not required, but registration with the USPTO is recommended 
  • Ownership: First to use in specific geographic area
  • Rights: Right to prohibit others from using your mark (or a confusingly similar mark) with respect to specific goods/services
  • Term: As long as used in interstate commerce and not abandoned
  • Infringement: Unauthorized use of a protected mark that is likely to cause consumer confusion

Trade Secrets

When running your business you’ll probably have information that is valuable to your business due to its confidential status. You can protect that information using Non-Disclosure Agreements but you can also use state-specific (and now federal) trade secret laws to prevent the unauthorized acquisition, use, and disclosure, of that information.

Trade Secrets law in a nutshell:

  • Protects: Information which (1) a party reasonably attempts to maintain as confidential; and (2) is economically valuable due to its confidential nature.
  • Types: Practically all kinds of information – technical data, non-technical data, formulas, programs, methods, lists, presentations, and more.
  • Vesting: A party gains trade secret rights as soon as they take reasonable steps to maintain the confidentiality of the information.
  • Registration: Trade secrets can’t be registered.
  • Term: Trade secret protection lasts for as long as you maintain the confidentiality of the information.
  • Rights: You can use trade secret laws to prevent misappropriation of your trade secrets.
  • Misappropriation: To misappropriate a trade secret merely means to acquire, use, or disclose, the trade secrets of another party without their authorization.

Patent

If you’ve invented a new and useful tool, machine, process, or something similar, you can seek a patent from the United States Patent and Trademark Office. If awarded, you can use that patent to prevent others from using or selling your invention.

Patent law in a nutshell:

  • Protects: Inventions (but not discoveries), machines, processes, etc.
  • Types: Utility, Design, Plant
  • Vesting: First person to file for protection of patentable subject matter who is also an inventor
  • Registration: Must be (1) Useful (“utility”); (2) New (“novelty”); and (3) Not Obvious
  • Term: Generally 20 years
  • Rights: Right to prohibit others from making, selling, or using that to which you have a patent
  • Infringement: Unauthorized making, selling, or using, a patented subject matter

Pro Tip

When dealing with intellectual property, it is critical that you speak to an attorney that works on intellectual property matters on a regular basis. IP law is not intuitive and you can’t afford to make mistakes when it comes to protecting your IP and avoiding infringing the IP of others. Often, startups and other small businesses don’t learn they have an IP problem until it is too late and when that happens the consequences can be disastrous.

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Image: Adobe/Sensay
*This article is very general in nature and does not constitute legal advice.


By | 2017-09-28T15:26:49+00:00 September 15th, 2016|Freelancers, Intellectual Property, Small Business, Startups|