This article is part of our “Business Startup Guide” – a curated list of our articles that will get you up and running in no time!
If you created something original, you may have a certain degree of protection against someone else using, claiming, modifying, or selling it. In other words, you may have intellectual property. Knowing how to legally protect your creations is essential to retaining ownership of them.
In the simplest terms, intellectual property (IP) pertains to things you create with your mind; not the ideas themselves, but the expression of the ideas in some form.
A thought or notion that’s been floating around your head may be a great idea for a future product or service, but it isn’t yet intellectual property.
There are four common types of IP:
- Copyrights
- Patents
- Trademarks (including design rights)
- Trade secrets
Here’s a quick primer on these four types of intellectual property, how to distinguish them, and how they’re protected in case someone attempts to infringe upon them.
1. What is copyright protection?
Having copyright protection means that if you discover someone claiming to have written something you wrote, you can sue them in civil court. Some common examples of works that can be copyrighted include novels, films, musical compositions, and photographs, as well as some less obvious things like computer programs or maps.
While it isn’t necessary to include a notice within your work indicating that it’s copyrighted, it can prove useful in pursuing a copyright infringement case. In such a case, you must be able to prove you are the originator of the work. If however you failed to include a valid copyright notice it can be considerably more difficult.
According to the U.S. Copyright Office, a visual copyright notice should contain three elements:
- The symbol ©, the word “Copyright,” or the abbreviation “Copr.”
- The year of first publication
- The name of the copyright owner
2. What is trademark protection?
Your trademark can be protected by registering a symbol or symbolic slogan (your trademark) that you use to define your brand. Your trademark is the words, numbers, symbols or even unique packaging that distinguishes your brand.
Once registered, you can use the registered ® logo to notify the public that you own the symbol or name.
In the United States, you can also mark a trademark with a TM symbol, which means you claim an unregistered trademark. If another company uses your trademark, you can sue for trademark infringement or take legal cease and desist action against them. If the trademark is not registered, the lawsuit will be more difficult.
Before starting to use a mark in your business, it’s important to identify whether it is one that you can register federally and protect legally if necessary. Similarly, you want to ensure that you’re not infringing upon the marks of others. A great way to check whether your potential marks or anything similar are being used is to do a search of the Trademark Electronic Search System through the U.S. Patent and Trademark Office.
In October 2013, The U.K. Supreme Court rejected Cadbury’s prolonged battle to register the shade of purple they use on their chocolate wrappers, PANTONE 2685C. It’s worth knowing what you can and can’t trademark.
3. What are “design and trade dress rights”?
Design and trade dress rights are like copyright protections that protect the shape, color, or feel of a product. These rights are protected by an international treaty that makes it possible for the owner of a design to sue imitators.
There have been a number of famous lawsuits over products that replicate the look and feel of a competitor, especially in the software industry.
One recent example is a suit brought against Facebook by the British company BladeRoom Group, for allegedly stealing their technique for creating data centers. BRG’s technique was created with the intent to make the data centers faster and more energy efficient. Facebook then implemented the same technique in a data center they opened in Sweden, although it is unclear how exactly the company may have gotten ahold of BRG’s ideas.
One important distinction to note is that you cannot protect functional trade dress. Functional trade dress can be defined as an element of a product design that is shared across multiple producers of the same type of product and isn’t therefore unique to any one company. Before looking to file for trade dress protection, be sure to understand what features of your product are unique to your creation and can be protected.
4. What is patent protection?
Patent protection is an act of the federal government and has to do with interstate commerce. Trade secret legislation is similar in coverage but was enacted at state levels.
A patent is an exclusive right to a product or process that allows the owner to prevent others from commercially selling that item or process. Having patent protection allows the owner of a patent to sue any party found to be making profits from claims to an invention that you have duly registered with the U.S. patent office.
Trade secrets are generally any confidential business information that is useful for growing your business, and are harder to protect legally. The claimant to a trade secret has to prove that he or she has made every effort to protect the secret.
If you have material that would qualify as a trade secret or a prototype that you are considering patenting, physical security is an essential precaution.
Keep any sensitive documents like recipes or customer lists locked away in a safe or other secure storage option, not lying around in a desk for any enterprising thief to find. Likewise for any prototypes you may have; when you leave your shop for the day, make sure that anything you don’t want stolen isn’t left in plain sight. You wouldn’t leave money out in the open to be stolen, so why leave your valuable IP exposed to possible theft?
Small businesses must also be aware of the IP rights claimed by other companies and competitors. In other words, not only do you have to make sure you own and protect your IP but that you do not infringe on others’ IP. While these cautions are especially true of the fast moving IT industry, every business would do well to stay vigilant against infringement.
Do you have any questions about protecting your intellectual property?
Disclaimer: This article is intended to be general information and nothing in this article constitutes legal advice. Please consult with an attorney before making any intellectual property or other legal decisions.
Mary Juetten is the founder and CEO of Traklight.com, the only self-guided software platform that creates your custom intellectual property (IP) strategy. Mary has dedicated 25+ years to helping businesses achieve and protect their success, specializing in leading companies in transition or startup phases and helping them create sustainable, operational, and financial growth. She also represents entrepreneurs on the board of AZTC, CFIRA, and the Emerging Enterprise Committee of the LES. You can find her on LinkedIn or Twitter.
