Virtually every business deals in some way with intellectual property. Whether it’s a restaurant wanting to protect its secret recipes, a computer firm laying claim to newly developed software or a car wash seeking exclusive use of an advertising slogan, most at some point will want to keep their ideas from being used by others.
Generally, the law allows a business to protect its unique ideas through the use of three avenues: copyrights, patents and trademarks. A copyright is the easiest to obtain. Copyright laws protect an “expression fixed in a tangible form” through which the work “can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
Copyrights apply to both published and unpublished materials, including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, audiovisual and architectural works, as well as motion pictures and sound recordings. That means the copyright laws allow you to protect everything from your technical, training and employee manuals to your website, company videos and PowerPoint presentations. To be protected, works must be original. In other words, they must be independently created by an author and have some element of creativity. A copyright is not available for inventions since copyright laws protect expressive (artistic/creative) matter rather than useful or functional matter.
A copyright exists as soon as an original expression is fixed in tangible form, and you can use the symbol (©) to designate the copyright. However, it is generally not enforceable until registered. Registration protects your work against a direct copy and allows for a lawsuit to prevent infringement. Keep in mind that if works are registered within three months of publication, registration also allows for certain costs and attorney’s fees upon enforcement.
The standard application fee for most copyright applications is only $35 if filed online, and registration can occur rather quickly. To obtain an application, visit https://www.copyright.gov/.
Trademark registrations are more involved. They cover words, symbols, packaging or other matters used in commerce to identify goods or services and distinguish them from others. Examples are logos, slogans and product or business names.
As with copyrights, federal registration is not required but makes enforcement of your trademark easier. Costs vary widely, ranging from a few hundred dollars to thousands of dollars, depending on the nature of the goods or services to which the mark would apply, as well as current government and attorneys’ fees. The process can also take several months.
Trademark applications have many technical requirements. For example, in addition to a full description of the goods and services to which the trademark applies, you must include a drawing or picture of the mark and examples of how the mark is being used in commerce.
For cursory searches of registered trademarks, visit https://www.uspto.gov/trademarks. The use of a trademark attorney is advisable for a more extensive search. If you believe you have common law rights to the mark, you can use the “TM” symbol prior to registration, but the circle-R (®) cannot be used unless the trademark is registered.
Trademark registrations are valid for five years initially and in ten-year increments thereafter if additional filings are made.
Although the federal registration process provides you with the greatest protection, you may also register your mark with your state. However, state registration is primarily designed only to provide notice of a claim to a mark. In other words, a state filing proves when you started using the mark. The process and fees vary from state to state.
Patents are granted by the federal government to acknowledge certain exclusive rights to an invention for a limited period of time. A patent essentially gives you a monopoly over the use of an invention and prevents others from making, using or marketing the invention in the United States and its territories. Patent applications are extremely complicated, and you’re best off beginning the process by consulting a patent attorney.
The process for registering copyrights, trademarks and patents varies greatly in expense, time and complication. But one need look no further than Lin-Manuel Miranda’s Hamilton©, 3M’s Post-it® Notes or Microsoft’s PowerPoint® to see it’s a process that can make a valuable difference to your business.