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Protecting Your Intellectual Property

The value of your intellectual property (IP) rests on the actions you take to recognize, capture, and protect your rights.  If you take appropriate steps, you can develop valuable intangible business assets.  These raise a number of legal trademark, copyright, trade secret, and patent issues that affect both your compliance obligations and the value of your assets.  An entrepreneurial, business, or intellectual property attorney can often help you with trademark, copyright, and trade secret protection.  A patent attorney can help you with patent protection.  In each case, there are registration and other practical steps you must take to establish, protect, and enforce your rights.  Protecting your property requires considering and planning for all IP-related business activity.  Any relationships into which you enter should clearly address applicable IP issues in writing.  It is best to proactively develop these assets.  Early action can make all the difference in your ability to capture value.

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Branding, Marketing, and Trademark (or Service Mark)

You develop your brand through your market communications and interactions.  Brand involves more than your name or logo.  Legally, it relates to all that is distinctive and identifiable about your business.  It encompasses your uniqueness, the concepts your business stands for, the associations it evokes, and why people buy from or work with you.  Your brand may raise trademark issues.  Trademark is a legal tool that may be used to protect the “devices” indicative of your business.

Any device that indicates as its source your business, products, or services may be trademarked.  Trademarked devices may be such things as words or phrases, visual symbols, sounds, smells, colors, etc.    If you don’t trademark your brand devices, someone else may trademark those same devices in relation to their business.  If they do, you will be precluded from using their trademarks.  Consider trademarking the devices that identify your business and make a difference to your success.

You may establish a trademark through sufficient commercial use, or by registering it with the U.S. Patent and Trademark Office (USPTO).  If you develop a trademark purely through commercial use without registration, your rights are likely limited to your specific market or use area.  If you register with the USPTO, your rights are recognized nationwide from the date of filing.  You may file a trademark registration based on current or intended use of a device.  Trademark protection can last for as long as your business continues to file required declaration and renewal documents.

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Copyright

The original content your business creates is automatically protected by copyright from the time the content is created and fixed in a tangible, perceptible form.  Copyright protects any original content; website content, publications, catalogues, databases, software, recordings, designs, drawings, specifications, charts, tables, informational forms, formatting designs, etc., and architectural works including buildings, plans, and drawings.

Although your business’s content is protected automatically, you may also register your copyright with the U.S. Copyright Office.  Registration creates a public record of your right, and provides you with a certificate of registration.  This proof of your right makes copyright enforcement easier and less costly.  Registration within five (5) years of the content’s publication is considered prima facie evidence of your right in a court of law.  If you register before infringement, you may receive statutory damages and attorney’s fees in an enforcement action.  This relief is not available to you if you do not register your copyright.  It is not necessary to provide notice of federally registered copyright protection.  (Do not infringe others’ copyrights.  Be aware that existing content that you happen upon that does not display copyright notice is nonetheless protected and may be federally registered.)

Copyright protection for works created on or after January 1, 1978 generally does not expire until seventy (70) years after the death of the author.  Protection for anonymous or pseudonymous work, or work made for hire, does not generally expire until ninety-five (95) years after publication or 120 years after creation, whichever comes first.

Copyright Ownership

Copyright protects the “owner” of the content, the definition of which raises legal issues.  The owner of the right is the author of the content.  If your original business content is created by an employee acting within the scope of employment, your business is likely the content’s presumed author and copyright owner.  If the content is created for your business by an independent contractor, that independent contractor is likely the author/owner, unless you enter into a written agreement to transfer those rights.

Copyright Licensing and Transfers

You can allow controlled use of your copyrighted work through licensing.  You can grant someone the right to use, reproduce, prepare derivatives of, distribute, sell, lease, lend, display, or perform your original work.  Authors of visual works of art also have attribution and integrity rights, and should address these in any agreement relating to their work.  You may also transfer your copyright.

Address ownership, licensing, and protection, and any applicable transfer issues in all of your internal policies and online and off-line contracts covering any intellectual property work, use, or exposure.  These may include explicit licensing or transfer agreements, employee and independent contractor agreements, confidentiality agreements, product development agreements, disclaimers, purchase or other transaction terms of use, etc.

If you or your business create original content with another person, you and that person should discuss ownership issues and execute any applicable agreement.  If possible, do this before undertaking the work, or at least while all parties are happy and eager to work together.  Determine who will have ownership rights.  If the parties will share full ownership, each party may have the right to grant licenses, transfer and enforce rights, pursue and control any law suits, and collect fees, without input from, sharing with, or approval by the other.  This can be problematic, and should be addressed by the parties.  A written agreement is ideal.

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Trade Secrets

Your trade secrets are legally protected and valuable, so long as they remain confidential.  Trade secrets are the information your business keeps private, such as client and customer lists, or important formulae.  They have value if you take steps to protect them.  If you do not use reasonable means to protect your data and ideas, they may lose their value.  For example, if your formula is visible on your desk or accessible to anyone who touches your laptop, you are likely not using reasonable means to protect it.  Whether you are using reasonable means depends on the means and the nature of the secret.  The value of your trade secrets can be lost or diluted as bits and pieces escape your protection through internal and external dealings, so please be aware of, and address, the applicable issues.  Trade secrets can be protected forever, or for as long as they remain secret.

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Patents

Patents may be obtained to protect your novel inventions.  In exchange for your disclosure of the invention to the public, a patent will protect for a limited period of time your exclusive right to make, use, sell, offer for sale, or import the invention.  There are three types of patents.  These are utility patents, design patents, and plant patents.  Utility patents cover useful processes, machines, manufactured articles, compositions of matter, and new and useful improvements to any of those things.  Design patents cover new, original, and ornamental designs for manufactured articles.  Plant patents cover discoveries or inventions of distinct and new varieties of plants that the discoverer or inventor has been able to asexually reproduce.  Utility and plant patents generally last for twenty (20) years.  Design patents generally last for fourteen (14) years.

A qualified patent attorney can help you with the patent application process and patent enforcement.  Patent attorneys are licensed to practice law, usually have a scientific or technical degree or background, and are registered to practice patent law through the U.S. Patent and Trademark Office (USPTO).  The USPTO administers a qualifying patent practice exam.

For legal help with intellectual property, contact any attorney directly to determine areas of practice.