Steps To Protecting Your Business’s Intellectual Property
Ensuring your business’s intangible assets are secureBy Canaan Suitt, J.D. | Last updated on January 26, 2023
Use these links to jump to different sections:
- Identify What Kind of Intellectual Property You Have
- Trade Secrets
- Questions for an Intellectual Property Attorney
Protecting intellectual property is vital for your business’s financial success and growth.
“Intellectual property, in general, is the ownership of the commitment of ideas and innovation to practice,” says New York intellectual property attorney William Samuels.
“Trademark, copyright, patent as well as trade secrets protect the ideas people commit to practice.”
“What’s important about intellectual property law is that by providing protections through patents or trademarks, for example, it provides incentives for people to share their innovations and inventions, as well as protection for consumers… in the marketplace regarding who has put out a product or service,” says Samuels.
“It’s important to note that there are differences in intellectual property protections,” he says. “For a creative work, which is protectable under copyright… the moment that pen is put to paper that person is going to have copyright protection.”
“The same is true when someone uses a name or logo in the sale of products or services. [Through that use], you get trademark protection at common law,” he says.
For patents, it’s different. “For innovative, useful inventions, which would be covered under a utility patent, you do need to apply with the United States Patent and Trademark Office (USPTO) and provide an explanation for how your innovation or invention works, what it does, and why you deserve to have patent protection on it,” says Samuels.
Finally, “trade secrets are information that’s novel and developed by a person or a party.” Trade secrets “give a business [competitive advantage]” and are “protectable under common law as well as trade secret statutes that each state has.”
This article will cover these main types of intellectual property and how to get legal protection for them.
Once you have an overview, it’s essential to speak with an experienced lawyer about your intellectual property rights and how to protect them.
Identify What Kind of Intellectual Property You Have
The first step to protecting your business’s IP rights is figuring out what kind of intellectual property your business has. From there, you can register for the legal protection unique to that type of intellectual property.
There are a few main types of intellectual property:
- Trade secrets
Let’s look at these types of IP in more detail.
The U.S. Copyright Law protects the rights of authors and creators in their artistic works.
To qualify for copyright protection, a creative work must be:
- Original. A work that is simply copied from something else or doesn’t have any novel components to it wouldn’t qualify for copyright protection. Similarly, mere facts or publicly available information isn’t copyrightable.
- Fixed in a tangible medium. An original idea, by itself, is not copyrightable. However, if you put your original idea into a book, essay, poem, painting, play, movie, musical piece, building, or another type of creative work, you have fixed the idea in a tangible medium.
How is Copyright Created?
As soon as the idea is fixed, it is automatically copyrighted. However, in order to legally enforce your copyright, it’s wise to register your copyright with the U.S. Copyright Office (discussed below).
What Rights do Copyright Owners Have?
Copyright owners have various exclusive rights to the copyrighted work, including:
- To sell or distribute it
- To perform or display it
- To permit others to use the work (through licensing agreements)
Copyright protections don’t last forever. At some point, copyright expires, and the work passes into the public domain. For example, for published works with a single author, copyright lasts for the life of the author plus 70 years.
Copyright infringement is when someone uses your work without permission in ways only you are authorized to.
How Do I Protect My Copyright?
Having a registered copyright enables you to sue others for infringement. Registration gives teeth to your copyrights.
Additionally, businesses that hire individuals to create original work for the company should include a section in employment contracts making it explicit the business owns the copyright to the work.
Patents give inventors exclusive rights to their inventions, excluding others from using or selling them.
To qualify for a patent, the invention must be:
There are a couple of main types of patents:
- Utility patent. This type of patent is for new machines, processes, or formulas.
- Design patent. This type of patent is for when someone comes up with a new design or improvement for an existing machine or process.
How to Get a Patent
To get patent protection, you must register your invention with the United States Patent and Trademark Office (USPTO).
To obtain the patent, you file a patent application with the USPTO and give them information about your invention. The USPTO assesses if the invention qualifies for a patent based on the requirements listed above (useful, novel, and non-obvious).
If USPTO grants the patent, information about your invention becomes public. So, there’s a tradeoff between obtaining the legal rights of a patent and having information about your patent made public.
Trademarks can be words, phrases, or symbols that identify and distinguish a company and its products from others. Trademarks are the business name or brand name of a company.
To make a strong trademark for your business, use words or phrases that are fanciful, arbitrary, or suggestive rather than plainly descriptive of the product.
The more unique the trademark, the easier it will be to protect it from others using it.
How to Protect Your Trademark
If your business is actively using a trademark, it already owns it.
However, to get the most trademark protection, you should register it with the USPTO.
A registered trademark will enable you to enforce your rights in the trademark against other businesses that might try to use or copy it.
While trademark registration is pending with the USPTO, you can put “TM” after your trademark to indicate that it’s yours.
When the USPTO approves the trademark, you can put ® after it to show it is officially registered with the federal government.
Unlike the other types of intellectual property, there is no federal protection for trade secrets through registration with an agency.
Instead, as the name suggests, trade secrets are successfully protected by keeping them secret.
The most well-known types of trade secrets are recipes or formulas of popular food companies and chains. Trade secrets give a company a competitive advantage over other companies.
To keep your company’s trade secrets truly secret, there are several steps you can take, including:
- Limiting the number of people who know how to access the trade secret
- Including strong non-disclosure agreements (NDAs) in contracts with employees and other companies or vendors that prevent confidential information from being leaked
- Making sure your company has strong cyber-security in place
Questions for an Intellectual Property Attorney
If you are a business owner concerned about protecting your business’s intellectual property rights, speak with an IP attorney as soon as possible about your situation.
“Don’t be afraid to ask all the questions and get all your concerns addressed by talking to a lawyer,” says Samuels.
“It is worthwhile to consider the intellectual property you have and are looking to develop as an investment. You also want to ensure that investment lines up with your business plan, which makes getting a lawyer worth it.”
Many lawyers provide free case reviews for potential clients. These meetings let you get legal advice and decide if the attorney or law firm meets your needs.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What are my intangible assets?
- What kind of intellectual property does my business have?
- How do I obtain intellectual property protection?
- What steps should I take for trademark protection?
- How do I get trade secret protection?
- Does my company need a confidentiality agreement?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for an intellectual property lawyer in the Super Lawyers directory for legal help.
Additional Intellectual Property articles
- What is Intellectual Property Law?
- The Four Factors of Fair Use
- Should My Business Hire an Intellectual Property Lawyer?
- When Do I Need Permission To Use a Copyrighted Work?
- What To Do if Someone Steals Your Intellectual Property
- How Do You Protect Intellectual Property in a Business Transaction?
- How to Fight Overseas Cybersquatters
State Intellectual Property articles
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