Everyone knows about property their business owns, like inventory, equipment and, for some companies, the land for its office or building. Most businesses also have another kind of property which you can’t touch or feel, but still has value. This is “intellectual property.” The most common kinds of intellectual property are trademarks, copyrights, patents and trade secrets.
To keep their value, these properties need protecting. Steps to do this can be low cost and straightforward. Here are explanations of trademarks, copyrights, patents and trade secrets as well as ways to protect the intellectual property of your business.
Trademarks
Trademarks are words, phrases, symbols or designs that are used with products to indicate their source and distinguish them from the products of others (an example is Campbells® Condensed soups). Servicemarks are the same as trademarks, except they indicate the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks.
Trademark rights help businesses by preventing others from using a confusingly similar mark. However, they do not prevent others from selling the same product or service under a different mark.
There are several steps to protecting a trademark. They include:
• Make it distinctive. Trademarks receive more protection if they are distinctive. This means they are different from anyone else’s trademark, and not merely a description of your product or service. One way to assess difference from other trademarks is to do a formal search of trademarks used by other companies. You can do this via the internet by checking the U.S. Patent and Trademark Office’s on-line records of trademarks (www.uspto.gov), or our law firm can do this for you.
• Use your trademark properly. Always use it the same way, and accompany it with the descriptive name of your product or service (for example, “Criscross hand tools” or “Apex plumbing service").
• Police use of it. This means not letting others use your trademark or a similar one without your written consent. If someone else uses a confusingly similar trademark, ask them to stop. If they refuse, you may need a court’s help to make them stop. If someone is infringing your trademark, a court can prevent them from using it as well as impose damages for the misuse.
Before asking someone to stop using a trademark, make certain you have senior rights. If the other person’s use started first, their rights could be stronger than yours.
• Register your trademark with the government. Another step to protecting your trademark is registering it. A trademark can be registered in any state where it's used. Trademarks used in more than one state can be registered in the U.S. Patent and Trademark Office. There is no legal requirement to register a trademark, and you can sue to protect your trademark even if it's not registered. But a federally registered trademark offers several advantages. It puts the public on notice that you claim ownership in the trademark. In addition, it entitles you to sue for trademark infringement in federal court, and it creates a strong legal basis in court that you own the trademark and have the exclusive right to use it. Federally registering your trademark also enables you to file papers with the U.S. Customs Service stopping foreign goods from coming into this country that infringe your trademark.
The owner should identify an unregistered trademark by using a tm or sm superscript, like this: “Chriscross™ hand tools” or “Apexsm plumbing service.” Trademarks registered in the U.S. Patent and Trademark Office can use an encircled “R” symbol, like this: “Kellogg’s® corn flakes” to tell everyone it is registered. This symbol can be used only after the U.S. Patent and Trademark Office actually registers the mark and not while an application is pending.
Trade Secrets
Trade secrets are information like customer lists, formulas, programs, data, marketing plans, operating methods, and almost any information that has value from not being known to competitors or others, and that your company uses reasonable efforts to keep secret. To be useful, some confidential information must be shared with selected employees or others. For example, employees need to know who the customers are, or what ingredients to put into the secret recipe. The company must take other measures to protect secrecy of this information.
The right actions depend on the company’s situation and particular information to be protected. Some tools include confidentiality agreements; requiring confidentiality in an employee handbook; regularly alerting workers to confidentiality policies; requiring passwords to access data in computer programs; using locked file cabinets; using dark colored or odd-shaped paper to make illicit photocopying harder; keeping unauthorized persons out of work areas; and assigning an employee as “intellectual property manager” to monitor and suggest new ways to protect company secrets without creating too many burdens.
If confidential information is released or copied, the company must act to stop or limit the misuse. This may include demanding that the recipient return the information or asking a court to stop use of the information that was taken.
Copyrights
Copyright law is a form of protection given to authors of original expressive works that are put into tangible form. Almost any work is eligible, including writings, photos, drawings (including architectural drawings), music, recordings, movies, sculptures, maps and databases. The only requirement is that the work be original. Protection is available to both published and unpublished works.
Copyright gives the owner several important and valuable rights, including the exclusive right to make copies of the work, produce derivative works based upon the original work, sell copies of the work to the public, and the right to publicly perform or display the work.
The copyright is owned by the author who created the work. In the case of works made for hire, the employer and not the employee is the copyright owner unless there is an agreement to the contrary.
The length of copyright protection depends on several factors, including when a work was created. For works created after January 1, 1978, U.S. copyright generally lasts for the life of the author plus 70 years. Works for hire are protected for 95 years from publication or 120 years from creation, whichever is shorter.
There are several steps to protecting a copyright. They include:
• Copyright notice. The first step to protecting a copyright is printing a copyright notice where it can be seen. The notice has three parts: (1) the word “copyright" or a “c” in a circle, like this: © (for some sound recordings an encircled P is used); (2) the year the work was first published; and (3) the copyright owner’s name or an abbreviation by which the name can be recognized. A typical copyright notice may look like this: © 2009 Apex Company.
• Registration. The next protection step is registering the copyright. Registration is not required to obtain copyright protection. But registration provides several important benefits. It establishes a public record of the copyright claim. To sue for copyright infringement, the copyright must first be registered. Also, depending on when the copyright is registered, registration can provide much better proof of the owner's rights in a lawsuit and entitle the copyright owner to receive more damages from a court.
Registering a copyright is allowed even if you did not print the copyright notice. A short application is filed in the Copyright Office together with copies of the work and a small government filing fee.
• Policing. Protecting a copyright also requires policing. The copyright owner should be alert to use of the work, or parts of it, by others. If misuse is found, the owner should ask the infringer to stop. Legal assistance should be obtained to help stop copyright violations.
Patents
Patents are a monopoly granted to inventors. In exchange for publicly disclosing a new and useful invention, the government lets the inventor decide who may make, use, sell or offer to sell it.
Patent rights exist only when the government issues a patent. Once a patent is issued, it is up to the patentee to enforce the patent.
Patents generally last for a term of 20 years from the date the application was filed in the U.S Patent and Trademark Office. Extensions are available in some cases.
• What can be patented. Under the law, an invention that can be patented generally includes any machine, product or process (this mainly includes industrial and technical processes). The law also requires that the invention be "useful," "novel," and "non-obvious." "Novel" generally requires that the invention is not known or used by others, and "non-obvious" generally requires that a person of ordinary skill in the same field of the invention would not consider the invention obvious.
People who have invented something and want patent protection should get help from a patent attorney to search whether someone else has already invented something similar. Legal help should also be obtained to guide you through the complicated process of obtaining a patent, which includes filing an application with the U.S. Patent and Trademark Office and giving details of the invention. There are also specific procedures for appealing patent applications that are initially rejected.
Conclusion
Companies can build significant value by protecting their trademarks, patents, copyrights and trade secrets. Our law firm can help you identify this intellectual property in your business as well as take the required legal steps to protect this valuable information.
Contact an attorney at Triscaro & Associates today. Please call us for all your legal needs. We offer a full range of legal services to individuals, families and businesses, including personal injury, estate planning, real estate, family law and business matters. We are dedicated to providing the highest quality legal services at a reasonable cost.