Most businesses own physical property like buildings, equipment, fixtures, and inventory. But your business also owns intellectual property, which might include company names, product names, logos, inventions, designs, artwork, photos, videos, and almost all written material.
This intellectual property can be protected through copyrights, trademarks and patents. Each is designed to protect a different type of intellectual property: copyrights protect works of authorship, including artwork; trademarks protect things such as logos and slogans that distinguish your business from others; and patents protect your company’s inventions.
Copyrights
Your business owns the copyright to ’original works of authorship" created by you and your employees. This might include written materials such as sales brochures, websites, manuals; photographs; drawings; videos, and musical compositions or recordings. As the owner of the copyright, you have the right to reproduce, display, perform and distribute your work, and create adaptations of it.
If you have materials that were created for your business by someone who is not one of your regular employees - such as a website created by a consultant - the person or company that created those works owns the copyright to them unless they signed a work–for–hire agreement or written copyright assignment. The creator may also have given you a license to use the work for certain purposes.
Similarly, if you create works for other people - such as taking wedding photographs - you own the copyright to those works unless you sign a work for hire agreement or assign the copyright to someone else. If you have concerns about copyright ownership and assignments, it’s best to consult with a small business or intellectual property attorney.
An original work has copyright protection as soon as it is created and fixed in a tangible object, such as paper, film or digital media. Ideas, processes and names cannot be copyrighted.
Copyright protection lasts for the lifetime of the author, plus 70 years after the author’s death. A work doesn’t have to be published or include a copyright notice to be entitled to copyright protection.
You also don’t have to register your copyrighted works with the U.S. Copyright Office but registering can have advantages if you ever need to sue someone for copyright infringement. If you register your copyright within three months of creation or before an infringement occurs, you can recover additional monetary damages and attorney’s fees in a lawsuit. You can register copyrights at the U.S. Copyright Office, www.copyright.gov.
Trademarks
A trademark is a name, symbol, word, or device used by a company or business to distinguish its products from those of other businesses and to identify the source of the products. A service mark is a trademark of a company that provides services.
You can potentially trademark such things as a business name, a slogan, a logo, or a distinctive style of lettering.
You don’t have to register a trademark with the federal Patent and Trademark Office to obtain trademark protection, because trademark protection arises through your use of the mark in your business, not through registration. However, without registering your trademark, you may not be able to claim nationwide ownership of your mark. Other benefits of registration include:
- Notifying the public that you claim ownership in the mark
- Giving you the exclusive right to use the mark in connection with the goods or services listed in the trademark registration
- Allowing you to sue in federal court for trademark infringement.
Not every mark is eligible for federal trademark registration.
Trademark registration is available for marks that are distinctive, but not for ordinary words that might commonly describe a product, such as "shoes." It’s easiest to trademark a suggestive mark (’glance–a–day’ calendars), a fanciful mark that has no other meaning ("Microsoft") or an arbitrary mark that uses an existing word that is unrelated to your product or service ("Apple" computers).
The patent and trademark office may also refuse to register your mark if it finds there is a likelihood of confusion between your mark and another registered mark. This generally means that your mark is similar to the other mark and identifies a similar product or service. You can minimize the chance of this by searching the trademark office database for other trademarks that might be similar to yours, and also searching state trade name or business name databases and the internet generally – ideally before you start using a mark in your business. A trademark lawyer can help you evaluate those search results.
The symbols TM and SM are used to identify trademarks and service marks that have not been registered. Once you have registered a trademark or service mark, you can replace the TM or SM with the ® symbol. The ’R’ symbol denotes a product or service protected by registration with the Patent and Trademark Office.
Federal trademark protection lasts for as long as you continue timely filing of post–registration maintenance documents. If you own a trademark, you are responsible for enforcing it and making sure others are not using it – otherwise you could lose your trademark protection.
In addition to federal registration, many states offer trademark or trade name registration. This may protect your business name or marks from being used by other businesses in your state, but it does not offer nationwide protection.
Patents
If you have invented useful articles, processes, designs for manufactured items or new plants, you may be eligible for a patent.
A patent grants an inventor the right to exclude others from making, using, offering for sale, selling, or importing an invention for a specific period of time. In exchange for these rights, the inventor discloses the invention to the public at the time it is patented. Patent protection is only available if you have applied for and received a patent from the U.S. Patent and Trademark Office.
A U.S. patent is only effective in the United States and its possessions and territories. To obtain patent protection in other countries, you must file patent applications in those countries.
To be patentable, an invention must be useful. You can’t patent an idea for an invention. In your application, you must be able to submit a complete description of the subject matter of the patent.
There are three types of patents:
- Utility patents are granted to inventors of processes, machines, articles of manufacture or composition of matter. They are valid for 20 years from the date the patent application was filed, but the patent owner must pay a maintenance fee at certain intervals, or the patent may expire. If you plan to sell, or authorize others to sell, a patented item, you must mark each item with the word "patent" and the number of the patent. If you don’t do this, you cannot recover money damages from an infringer unless you notified the infringer of the infringement and they continued to sell the product anyway.
- Design patents are for new and non obvious and ornamental designs for manufactured articles. A design patent protects an object’s appearance, but not its structural and functional features. A design patent lasts for 14 years from the date it is granted, and no maintenance fees are required to keep it in force.
- Plant patents are for new and distinct varieties of plants. A plant patent lasts for 20 years.
Once a patent is issued, it is up to the patent’s owner to enforce it.
Applying for a patent is a complex process and most inventors hire a patent lawyer or patent agent to assist them with the process. Both have scientific or engineering training and have passed a patent bar exam.