By: Lori T. Williams, Owner/Managing Attorney of Your Legal Resource

Attorney Matt Bower shares some tips on how intellectual property issues that can impact one’s business. Ask yourself if any of these protections apply to you.  You may want to seek counsel to ensure you have adequately identified and protected your intellectual property rights, since doing so can significantly enhance the value of your business. As Your Legal Resource, I can connect you with the right legal professional for your specific issues.

Intellectual Property 101

Intellectual property is divided into four generally accepted categories: copyrights, trademarks, patents, and trade secrets.  Many people (including some attorneys) often confuse these terms.  Here are thumbnail explanations of these terms, as defined by statutes and our court system:

Copyright:

A copyright is a form of protection granted by law for original works of authorship (including literary, dramatic, musical, and artistic works; such as poetry, novels, movies, songs, computer software, and architecture) fixed in a tangible medium of expression.  A copyright generally gives the copyright holder the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.  Copyright does not protect facts, ideas, systems, or methods of operation; although it can protect the way these things are expressed.  A work is under copyright protection the moment it is created and fixed in a tangible form, and lasts for the life of the author plus 70 years (or, in the case of a corporation, 100 years).  Although the registration of a copyright with the U.S. Copyright Office is not required, it can provide the copyright holder with additional rights and protections.

Trademark:

A trademark is a word, name, symbol or device which is used in trade with goods to identify the source of the goods and to distinguish them from the goods of others.  A servicemark is the same as a trademark except that it identifies and distinguishes the source of a “service” instead of a “product”.  The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or selling the same goods or services under a clearly different mark. Trademark rights begin to attach as soon as a mark is used in interstate commerce, and last as long as the mark is used in interstate commerce.  However, unlike copyright law, trademarks and service marks must be registered with the Patent and Trademark Office to enjoy wide, federal protection.

Patent:

A patent is the grant made by the Patent and Trademark Office, which provides an inventor with a monopoly on his idea for a set period of time; generally 20 years from the date on which the application for the patent was filed in the United States.  The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States.  What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.

Trade Secret:

A trade secret is a process, method, plan, formula or other information unique to a business, which gives it an advantage over competitors, and is not generally known or readily ascertainable.  Unlike the other forms of intellectual property described here, trade secret law does not enjoy broad federal protection; it is different from state to state (although the adoption by many states of the Uniform Trade Secret Act is helping to create a more uniform body of law).  Accordingly, there is no registration of trade secrets and what constitutes a trade secret, and the degree of protection afforded to such a trade secret, can be different depending on the jurisdiction and the extent to which the owner protects its confidentiality.  In general, however, trade secret protection extends to information proved to have economic value and in which steps are taken to keep the information secret.  Companies that can support a claim to trade secret protection can be protected by court-ordered injunctions against those who use or reveal the secret (such as current or former employees), or seek damages against such people for improper use or disclosure.

Matt Bower is an attorney representing businesses in the small to upper middle markets, start-up technology companies, and their respective owners.  Matt provides his clients with a broad variety of business legal services for anything from day-to-day business operations, including customer and vendor contracts and employment matters, to special transactions, such as acquisitions, financial restructurings, major licensing, and growth initiatives.  In addition to corporate representation, Matt focuses his practice in the areas of copyright law, publishing, Internet law, social media, ecommerce, and software, as well as capital formation for emerging companies in these industries.

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