Q: Steve, could you give us a little primer on intellectual property rights? I don't really get the difference between trademarks, copyrights, etc. Thank you in advance.
Sequoia, New Mexico
A: I would be happy to. Intellectual property law has to do with intangible assets, things like words, phrases, logos, and pictures. These may be your most important assets.
Let’s use Nike as an example. How important is that swoosh logo? That is intellectual property (a trademark). What about the name “Nike?” That is also intellectual property (copyright and trademark). And its tag line, “Just Do It” — yep, that is intellectual property too.
Intellectual property is no less important in a small business. You need to know how it works in order to protect your business name, logo, inventions, and so on. There are four main areas of intellectual property that may help you: Trademarks, copyrights, patents, and trade secrets.
Let’s look at each:
Trademark: A trademark is a word, phrase, design, or symbol that identifies your business and distinguishes it from the competition. Examples of trademarks would be Dr. Pepper® or The Los Angeles Dodgers®.
Trademarking your business name or logo is quite easy. To get full trademark protection, you need to register your mark with the federal trademark office. Logon to www.uspto.gov (the Web site of the United States Patent and Trademark Office) and follow the directions.
Copyright: Copyright protects the original, physical expression of a creative idea. To be copyrightable, the ideas must be unique, must be tangible (written or taped, for instance), and must be a “work of authorship.” Musical scores, magazine articles, choreographed dances, photographs, movies, even sculptures would be examples of copyrightable expressions.
Copyrights last the life of the author plus 75 years, and the creator owns the copyright, although if the creator created the thing working for someone else, the employer would own the copyright. You own the copyright to any works your employees create in the fulfillment of their duties. This is called work-for-hire.
One of the best aspects of copyright law is that there is nothing to register. As soon as you create the thing, it is copyrighted as a matter of law. This sentence is being copyrighted as I write it. Certainly you can register it with the U.S. Copyright Office, but it is not necessary. What you should do instead when you want to put the world on notice that you have copyrighted material is to have “© All Rights Reserved” prominently affixed to the work.
Patents: If you invent or discover a new and useful “process, machine, manufacture, or composition thereof” you can apply for a federal patent to protect your invention from being used by others without your permission. Utility patents protect machines and industrial processes and last for 20 years. Design patents protect designs of manufactured items and last for 14 years. Plant design patents protect new plant varieties and last for 17 years.
Trade secrets: Most states have adopted the Uniform Trade Secrets Act. This law defines trade secret as information that has independent economic value by virtue of remaining secret. A customer or vendor list might be a trade secret. KFC’s “17 secret herbs and spices” would surely be a trade secret.
To be legally protected, you have to make efforts to keep your secrets secret. This is not to say that you can never tell anyone the secret, but rather, that you attempt to retain the secret and act appropriately.
If you want to share a trade secret with another party, make sure they sign a non-disclosure agreement, or NDA. A NDA says that you will be sharing confidential information and that it cannot be used by the other side for commercial reasons and cannot be disclosed to a third party without your prior, written approval. You can find one online or by going to www.nolo.com.
Protecting your intellectual property is critical. You may remember that the first videogame ever was Pong. Yet, within a few years, scores of knockoff Pong games hit the market and the original was lost in the shuffle. How did that happen? Atari failed to protect its intellectual property.
Today’s tip: At one time, R. Buckminster Fuller had the most entries in Who’s Who. An inventor, mathematician, author, and cartographer (among other occupations), Bucky is most well known for having invented the multi-triangular geodesic dome. He once remarked that he owed his fame and success to… his patent lawyer! Had it not been for the airtight patent his lawyer obtained for the dome, Bucky believed that his beloved invention would have surely been stolen, and, he says, “no one would have ever heard of me.”