Understanding IP Law

What Is Intellectual Property?

There are four types of intellectual property. Your business may rely on one or more.

1. Trade Secrets

A trade secret is information that:

• Is not publicly known
• The owner takes steps to keep secret
• Has economic value due to its secrecy

Generally, that information falls into one of the following categories:

• Formulas
• Processes
• Patterns
• Practices
• Compilations
• Techniques

For example, a fabric dyeing technique may be a trade secret.

2. Copyrights

Copyrights protect works which are creative efforts, such as:

• Books
• Poems
• Paintings
• Photos
• Illustrations
• Audio recordings
• Movies
• Plays
• Musical compositions

Copyright protects many other works as well. To qualify for copyright protection, a work must be original and fixed. 

Which works are original?

Original works: 

• Are created independently
• Have a human creator
• Have a degree of creativity

The required degree of creativity is minimal—a “spark” or “modicum” of creativity. 

Which works are fixed?

Fixed works exist in a tangible form. For example, you could write a poem or record your improv troupe’s performance.

How do you copyright a work?

You own a copyright as soon as you create an original work and capture it in a fixed medium. You can register your copyright with the U.S. Copyright Office (USPTO) for extra protection.

What protections does copyright law provide?

U.S. copyright law provides copyright holders with exclusive rights to:

• Reproduce the work
• Create derivative works based on the work
• Sell or lease copies of the work
• Publicly perform or display the work

You can also prevent or authorize others from using your work. You can also create works for hire, where an employer owns the copyright for an employee’s work. The same rule applies to some independent contractors and commissions.

How long do copyrights last?

Copyright protections last for the copyright holder’s life plus 70 years. Copyrights on works for hire last the shorter of 95 years from publication or 120 years from creation.

3. Trademarks

A trademark is a “mark” that identifies your goods or services. A mark can include:

• Words
• Phrases
• Symbols
• Designs

To qualify for legal protection, a trademark must be strong. 

What is a strong trademark?

Strong trademarks are inherently distinctive and generally fall into three categories:

• Fanciful trademarks: Made-up words that have no meaning distinct from the goods or services they identify
• Arbitrary trademarks: Real words that bear no relationship to the goods or services they identify
• Suggestive trademarks: Real words that describe some quality of the goods or services through suggestion or implication

Trademarks should not be descriptive (describe the goods or services) and cannot be generic, or the common, everyday words for things.

How do you obtain a trademark?

You own a trademark when you start using the mark in association with goods or services. These automatic rights are limited to the geographic area where you use the trademark. You can register your trademark with the U.S. Patent and Trademark Office (USPTO) to get greater legal protection.

What protections does trademark law provide?

When you own a trademark, you can prevent others from using your trademark or a similar trademark in connection with the same or similar goods or services. In other words, if customers confuse the source of the goods or services, you can stop others from using your trademark.

An unregistered trademark lets you prevent others from using your trademark in your geographic area. A registered trademark enables you to prevent others from using your trademark nationwide.

How long do trademarks last?

Unregistered trademarks last while the use continues. Registered trademarks can last for ten years and be renewed virtually indefinitely.

4. Patents

Generally, patents protect inventions. There are three types of patents:

• Utility
• Design
• Plant

(See descriptions below.)

To be patentable, an invention must be:

• Useable
• New or novel
• Not obvious
• Describable

You cannot patent an invention that is too similar to an existing invention.

Utility patents

Most inventions are utility patents, which cover new and improved: 

• Processes
• Machines
• Articles of manufacture
• Compositions of matter. 

Utility patents last for 20 years.

Design patents

Design patents cover designs for articles of manufacture that are:

• New,
• Original
• Ornamental

Design patents last 15 years.

Plant patents

Plant patents cover new and distinct plant varieties you invent or discover and asexually reproduce. You cannot patent tuber-propagated plants or plants discovered in an uncultivated state. Plant patents last 20 years.

What protections does patent law provide?

Patents prohibit non-patent holders from:

• Making
• Using
• Offering for sale
• Selling
• Importing patented inventions

These rights are limited to the U.S. and its territories.

Copyright vs. Trademark vs. Patent

Copyrights, trademarks, and patents cover similar things and can even overlap. However, they involve legally distinct concepts.

Steps to Protect Your Intellectual Property

1. Keep a Record

When conflict arises, proving you created the property first is crucial. Do your best to record the stages of the process. Save your documents, date your works, and protect your files.

2. Register Your Property

Except for trade secrets, you can register all your intellectual property with the U.S. government. Registering your intellectual property is the clearest way to establish your claim to it.

3. Secure Your Property

Invest in physical and electronic protections for your property. Consider using, among other things:

• Physical locks
• Secure data backups
• Strong passwords
• Two-factor authentication
• Anti-virus protection

Be careful to whom you allow access to your private information, and ensure you provide regular security training.

4. Use Contracts

Especially with trade secrets, strong non-disclosure, licensing, and confidentiality agreements are essential. Create and enforce a system ensuring no one has access to your private information until you establish their access and use terms.

Protect Your IP

As an entrepreneur, knowing how to safeguard your work from misuse or theft is crucial. Don't let your hard work be compromised. Ensure you take every opportunity to protect your intellectual property and keep your business strong.