You can safeguard your business’s physical assets like the office, goods and equipment with an insurance policy. But how do you protect intangibles like your company’s name, logo, content, creative ideas or original creations from being stolen? The answer is to secure trademarks, copyrights, patents and other intellectual property rights.
According to the World Intellectual Property Organization, intellectual property refers to “creations of the mind,” like artistic or literary works, names, images, symbols, designs and inventions used for business purposes.
“These are comprised substantially of ideas and know-how, which are incapable of being locked up for safe keeping but vulnerable to being grabbed and republished by anyone else who may know of them,” said Maribeth Meluch, registered patent attorney and partner with Isaac Wiles Burkholder and Teetor.
Consider how easy it is for your intellectual property to be infringed upon. If you’re a homebuilder, a competitor could copy or emulate your floorplan design. If you run a website that offers self-help articles, another site could reproduce some of your content without your permission. Or, if you own a store, a rival may decide to open a store with the same name within a few miles of yours.
“Business owners should protect what they own and make sure not to use what might be owned by others,” said Mark Melasky, adjunct professor of cyber law and policy at Tulane University School of Professional Advancement. “Remember that anyone can sue, even if a business owner may not actually be infringing. But intellectual property litigation can be very costly and the damages can be high. So it’s always best to hire an attorney who specializes in intellectual property law and can guide you through this process, as it can be easy to make a mistake.”
Here are the top intellectual property concerns on which your business should focus:
Trademarks
Want to protect your branding and marketing? Get a trademark for your business name and products, or a service mark for the services you provide.
“A business owner can federally register a trademark with the USPTO. The process begins with searching federal and state trademark databases to ensure that a similar trademark or service mark hasn’t already been registered. Once registered, as long as your registered trademark is renewed about every 10 years, it can theoretically last forever,” said Michael Lutz, associate attorney with McCausland Keen + Buckman.
Trademarks (TM) and service marks (SM) can technically be used the moment your business’s name, logo, goods or services are created. But you need a valid trademark or service mark registration (®) before you can file an infringement suit in federal court and, in some cases, seek statutory damages. [Read our full guide on registering your business trademark.]
A claim can often arise when an employee or former worker uses your trade secrets in violation of their confidentiality agreement.
Michael Lutz, associate attorney, McCausland Keen + Buckman
Copyrights
Copyrights shield creative ideas transferred to a tangible medium of expression, like a literary, artistic, musical or architectural work or performance. It doesn’t protect ideas, facts, methods of operation or systems.
“All copyrightable works are automatically protected, whether published or unpublished, under the Copyright Act. But a business can obtain the right to sue for infringement or for attorneys’ fees and statutory damages by registering for the copyright (indicated by the © symbol) with the U.S. Copyright Office,” Lutz explained.
Patents
If you have a unique and unobvious invention that hasn’t already been used in the marketplace, you can pursue a patent—typically either a utility patent that protects the way an invention works, or a design patient that defends the way an invention looks.
“The only way to formally protect your invention is to obtain a patent from the USPTO or other foreign patent offices,” said Lutz. “Once registered, for utility patents you will typically have 20 years of protection from the date you filed your patent application (or for design patents 15 years of protection from the date the patent is issued), during which time you can restrict others from using your patented invention or charge a licensing fee for allowing others to use the patented invention.”
Trade secrets and publicity rights
Got a recipe, formula or proprietary pricing list? These are trade secrets you’ll want to safeguard. While you can’t officially register for any legal protection, you should work hard to keep trade secrets confidential, have employees sign a nondisclosure agreement, and pursue legal action when necessary.
“A claim can often arise when an employee or former worker uses your trade secrets in violation of their confidentiality agreement,” Lutz noted. “Here, you can petition the court to issue an injunction or sue for damages.”
You also have a “right of publicity” that offers protection from having your name, likeness, photograph or overall identity used in a commercial manner without your permission. You can even register a trademark for your personal attributes, such as your nickname or mannerisms. Note that the specifics of this newer intellectual property law can vary by state. [Read: What are Trade Secrets and How to Protect Them]
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