Some of people and businesses most valuable assets are varieties of intellectual property. These several categories of intellectual property provide different rights. But what good are rights if you don’t know how they can be protected? Thus I submit to you, beloved reader, a general and brief overview of the categories of intellectual property and how they can be protected.
A copyright is legal protection of “original works of authorship” – i.e. an author’s expression – whether literary, dramatic, visual, musical, or artistic. The work need not be published to be afforded copyright protection.
With a copyright, the author controls (i) reproduction of the original work, (ii) production of derivative works, (iii) distribution of copies, (iv) performance of the work, and (v) any display of the work.
If you’re writing a story, an essay, or an article for a magazine about intellectual property, and you want to prevent others from making money from your creation, you will want to know about copyright.
Interestingly, the author acquires the copyright immediately upon completion of the work; however, to acquire the full protection and enforceability that makes copyrights valuable, you need to register the work with the United States Copyright Office of the Library of Congress. You can access the website at www.copyright.gov, where you’ll find a plethora of information.
What all copyright holders must understand is you cannot sue for copyright infringement without registering the work with the Copyright Office. Nothing is worse than having your work exploited by infringers while you sit helpless, unable to enforce your rights. Registration makes owning a copyright valuable. Your federal copyright is considered “registered” from the date the Copyright Office receives your application package.
Even without federal copyright protection, an author can put the public on notice that he/she owns the copyright and intends to protect it. See Copyright Notice at the end of this article with the year of publication.
A trademark is a word, name, slogan, logo, symbol, device, or used in trade to indicate the source of the goods or services and distinguish those goods and services from others. A trademark is the symbol for a business’s good will.
When you select a bottle of Coke ® from the store shelf, you know that inside is the same sweet, fizzy, caffeinated goodness you’ve enjoyed ever since you were a child. You know it comes from the Atlanta based beverage company or from a company licensed by that company because you immediately recognize the white cursive lettering on a field of bright red. This mark protects the relationship Coca-Cola has built with you throughout your life.
Unlike copyrights, you can enforce common-law trademark ownership without federal registration. But, a trademark that you intend to protect should nonetheless be federally registered with the United States Patent and Trademark Office (www.uspto.gov). When federally registered, it is presumed by the law that you are the rightful owner of the mark, the public is put on notice of your ownership, and you can enforce your ownership of the mark in federal court. Also, federal registration enables you to obtain foreign trademark protection in the ever emerging global economy.
PATENTS AND TRADE SECRETS
Simply put, a patent (utility patent) is an inventor’s solution to a functional problem. If you invent or discover any new and useful process, machine, article of manufacture, composition of matter, or improvement of the preceding categories that is not obvious to someone versed in the field, you can qualify to obtain patent rights. As the holder of a patent, you can exclude others from making, using, offering for sale, or selling the item.
There is nothing new under the heavens and to qualify for a patent, the invention does not need to be totally new in every aspect – but a patent must have a certain “eureka” quality to qualify for federal protection. In the past, people would write things down with pencils. If you made a mistake, you would put your pencil down, pick up your eraser, rub away the mistake, put your eraser down, pick up your pencil, and continue writing. In 1898, someone decided to attach a small eraser to the other end of the pencil. With a simple flip of the writing instrument, mistakes were corrected slightly quicker. This is a “new and useful process” and was indeed patented. There’s nothing new under the heavens!
However, these “monopoly” rights are granted in exchange for public disclosure.
If the value of your invention is derived from its secrecy, you do not want a patent. The aluminum cans of Coca-Cola are patented; the formula of Coca-Cola is not. The value of the “secret formula” is derived from its secrecy. It is a trade secret.
A trade secret is a formula, process, device or compilation of information used in one's business which confers a competitive advantage over those in similar businesses who do not know or use it. It derives value from being a secret and must be the subject of reasonable steps to protect its secrecy. Trade secrets are governed by state law. To maximize protection of your rights, confidentiality agreements should be in place with any employees, customers, vendors, and anyone else that can or will have access to your trade secrets. Remember, to have an enforceable trade secret, it must actually be, and you must actually treat it as a secret.
Intellectual property is a valuable part of almost every business venture. Make sure that you are protected by taking the steps now to avoid costly litigation later. Many infringement and misappropriation issues are either prevented or quickly disposed of where proper protective steps have been put in place. There is plenty of information on the above cited government websites. For more complicated legal issues and transactions, a competent attorney should be involved.
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