The 3 Primary Forms of Intellectual Property

When you hear “Intellectual Property”, does it make your head spin? What the heck even is intellectual property, and how can it protect your business?

There are three primary forms of intellectual property, Trademarks, Copyrights, and Patents. While there are other various types of intellectual property (IP for short) that extends into trade secrets, trade dress (the look and feel of the product), and more, knowing the difference between the primary three, can help you determine what types of IP protection you can use to protect your business.

So, let’s take a look at the basics of the three primary types of IP…

Copyrights

Copyrights protect original artistic and literary works, that are created independently and require a degree of creativity. Examples of copyrightable works include things like books and literary works (this includes computer programs), music (and accompanying lyrics), plays (and accompanying music), choreography, video and audio visual works, pictures, graphics, technical drawings, sculptures, sound recordings, and architectural works.

Copyright protection begins from the time that the work is expressed in a tangible, fixed form. Meaning the work has to be captured in a permanent enough medium that the work can be perceived, reproduced, or communicated for more than just a short period of time. The owner of the Copyright has the exclusive right to use the work, as well as give permission for others to use the work. This exclusive right to use the work extends to reproducing copies, distributing the work for sale, as well as creating derivative works.

There are limitations on what can be Copyrighted. The work has to be “original”, fixed in a tangible form, and certain things won’t qualify for protection. Copyrights do not cover titles, names, short phrases, and slogans (this is where Trademarks come in!). You also generally cannot copyright facts, ideas, concepts, lists/contents, or systems and processes of operation on their own, but you could potentially copyright how they are expressed. A great example of this is to think about a cookbook: the lists of ingredients for the recipes are not Copyrightable, but how they appear in the printed cookbook can be (such as the typography used, pictures included, design elements, and how the steps are laid out).

While Copyright protection is automatic once a work is fixed in a tangible medium, there are additional steps that can be taken to enhance the protections. One of these additional steps is registering the work if you want to enforce an exclusive right to use the work in a lawsuit.

Copyright notices are technically not required on anything anymore (they aren’t required for work created after March 1989), and it’s important to note that a copyright notice is not the same as, or a substitute for copyright registration. So if a notice is not required, why can it still be important to have a copyright notice? There are practical and legal benefits, including things like public notice, deterring others from using the work, and limiting an infringer’s claim of “innocent infringement” . So, a Copyright Notice can still be very beneficial, even though it is technically not required.

Trademarks

A Trademark can be a word, phrase, slogan, or logo (or combination) that identifies the source, ie. the business owner, of the goods or service. Trademarks are an important tool for businesses to use to be able to protect and enforce rights to creative assets such as brand names and logos. Trademarks protect you brand names (or slogans) associated with the identity of your business. Want to know the easiest way to think about what can (and probably should) be trademarked? It’s you BRAND! How do customers identify your business? Are there important or specific brand assets that set you apart? Such as a unique name, specific typeface, or even logo design elements? Most likely, you can trademark those assets!

You become the owner of a trademark as soon as you start using the mark “in commerce”. Meaning, as soon as you start using the mark on your goods, through sales, or services, through advertising and actually rendering services, you are using the mark “in commerce”. Once you begin this use, you will have what is called “common law” ownership rights. These are limited rights that are generally both extremely hard to enforce, and only enforceable in your geographic area. You can also file a STATE trademark, that protects your mark in that state only, so if you wish to expand your business outside of the state, you will not have trademark protection. Further, not all states have state trademark databases, so your ability to enforce rights can become more difficult as you have to prove an infringer had public notice of your ownership rights. Long story short, if you want both stronger and nationwide protection, a federally registered mark with the USPTO is the way to go.

As with copyrights, there are certain limitations to trademarks. Certain things are generally not able to be trademarked. Generally descriptive marks, those that describe an aspect of the goods or services, are generally not registrable. These are things like “creamy” for yogurt, or ““fuzzy” for blanket, or “roses” for a perfume, or “B&B” for lodging. Generic names are also not trademark-able, like you cannot trademark “bike” for a bicycle brand. While having a federally registered trademark gives you the exclusive right to use that mark, it is only exclusive in it’s use for the specific goods or services filed. You do not get the ability to prevent others from using that word or phrase in general.

Does every mark used by your business need to be trademarked? Of course not! There are times when it makes sense NOT to file a trademark. However, if you want to enforce sole rights to use the mark, having a federally registered mark through the USPTO is the easiest way to do so. Protect those assets you’ve worked hard on or paid good money for!

Patents

Patents are all about inventions. They protect your invention from anyone else using, making, selling, or importing your invention for a period of time. A Patent right is the right of you, the patent holder, to exclude other’s use, and you are responsible for enforcing Patent rights during your patent term. Generally, Patents last for 20 years from the date of it’s filing, and only give the owner’s rights within the U.S. and U.S. territories or possessions.

There are three types of patents. Design Patents, which are a type of patent for anyone that invents a new, original, and ornamental design for an “article of manufacture” (ie. a physical thing that can be manufactured). Utility Patents, which are a type of patent for anyone that invents or discovers any new and useful process, type of machine, an article of manufacture, or composition of matter, or any new and useful improvement of any those things. Plant Patents, which are a type of patent for anyone that discovers and reproduces any distinct and new variety of plant. Patent law specifies that the new thing created has to be useful, meaning that the subject matter has a useful purpose, which also includes the ability of operating it for it’s intended use.

Patents are a very complicated area of Intellectual Property. So much so that there are distinct requirements, including a technical education background and a separate patent registration examination, required to work on patents. So, if you have an idea or are working on something that might qualify for a patent, it is strongly recommended that you find a patent attorney in your area.

Not every aspect of your business is protectable by intellectual property rights, but knowing what you can protect is the first place to start!