Intellectual property are the ideas behind inventions, the artistry that goes into books and music, and the logos of companies whose brands we have come to trust . . . I believe it is enormously important that the United States remain a global leader in these forms of innovation – and part of how we do that is by appropriately protecting our intellectual property.
Victoria A. Espinel, the first U.S. Intellectual Property Enforcement Coordinator.
Many people think of patents when they think of intellectual property; however, intellectual property is a much broader category of property rights. If you have ever identified a product or service by a brand name, created an original work of authorship, or developed and then kept information away from your competitors, intellectual property was at play.
Intellectual property rights protect assets that are created, developed, designed, or invented, such as brand names, logos, slogans, books, music, computer software, machines, and confidential information.
Trademarks are words, designs, or a combination of the two that identify a product or a service and distinguish it from products or services offered by others. Strong trademarks identify source, indicate consistency, and are often one of a company’s most valuable assets. In the U.S., trademark rights begin when you use a mark in commerce to identify a product or a service. Trademark registration is available and often recommended for the many advantages that it affords trademark owners, but registration is not mandatory.
If you choose a trademark that is identical or substantially similar to a trademark that is already in use in the same industry, you may be infringing on someone’s trademark rights. Therefore, it is important to have a trademark clearance search conducted before you adopt a brand name, logo, or slogan. Checking to see if your proposed trademark is available as a domain name is an important step in a trademark clearance search, but it should not necessarily be the first step and certainly should not be the only step.
Copyrights protect original works of authorship that are fixed in a tangible medium of expression. Ideas are not copyrightable, but original articles, books, computer software, and designs may be. Copyright owners have a bundle of rights that they can exercise, including the right to copy, distribute, and license their work. Copyrights exist at the moment that a work is created and continue whether or not the copyright is ever registered. It is critically important to determine who owns a copyrighted work. Factors that are relevant in determining copyright ownership are who created the work and whether the creator was an employee, independent contractor, or bound by a written contract.
A patent is a monopoly on something that is useful, novel, and non-obvious. A patent owner has the right to exclude others from making, using, offering for sale, or selling their patented invention. There are utility, design, and plant patents. Unlike trademarks and copyrights, registration is required in order to obtain patent rights and patent applications must describe the the invention with sufficient detail so that one skilled in the art would be able to replicate the invention.
A trade secret is information that is sufficiently secret to derive actual or potential economic value from not being generally known to competitors. Trade secret protection may be available for customer lists, processes, research and development data, and know-how. Trade secret protection allows you to keep your information confidential, the protection lasts as long as the information remains confidential, and there is no government registration required or available for trade secrets. Conversely, patent applications require you to fully disclose your invention, patent rights can only be obtained through government registration, and patent protection generally lasts for only 20 years. Therefore, in some cases, companies must choose between trade secret protection and patent protection.
An April 2015 article in The Indiana Lawyer cited a trend whereby businesses are viewing their intellectual property as their competitive advantage over the marketplace. Rather than compete on pricing, businesses want to distinguish themselves through innovation. I wholeheartedly agree with that trend and encourage innovators, entrepreneurs, and business owners in Northwest Indiana to identify, protect, and maximize the value of their intellectual property.
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Posted by Duneland Innovators on Friday, December 4, 2015
Thank you to the Duneland Innovators group for allowing me to present on this topic at a recent Meetup. The people in attendance were dynamic and inventive. I appreciated the lively discussion that followed my presentation.
This article should not be construed as legal advice nor does it form an attorney-client relationship between the author and the reader.