Most businesses own physical property, but every business also owns intellectual property, even if that property is simply its company name. Physical property is easy to define; it includes business assets like office equipment, furniture, machinery, computer software, and vehicles. Intellectual property is a little harder to define, but includes company names, product names, logos, inventions, designs, artwork, photos, videos, and almost all written material.
Protecting physical property is relatively easy, but there are basically three ways you can help protect the intellectual property your company develops and owns.
A copyright is a legal way to protect a creative product. Authors, composers, photographers, artists, and other creative professionals can be legally protected by copyrights. A copyright is generally granted to any work as soon as it is created, and the ownership of that copyright is granted to the creator. However, if the creator produced the work under contract to, or as an employee of, another person or entity, such as writing press releases for a company, then the copyright for that material is granted to the company and not to the individual. Thus, if you are paid to create the work, whether as an employee or under a work-for-hire agreement, you do not own the copyright and are not granted legal rights to what you have created.
One exception is photography. Even if you are hired to take photographs, you retain the rights to those photographs, unless your work-for-hire agreement specifically assigns the rights to the hiring party. For example, a wedding photographer hired by a couple to photograph their wedding retains ownership and rights to those images, even though he or she was hired to create those photographs.
In the U.S., copyright is granted for the lifetime of the creator plus 50 years.
You are not required to register a copyright, but doing so can help you ensure that your claim is valid and enforceable, especially if you are forced to sue because of copyright infringement. You can register material you wish to protect by copyright at the U.S. Copyright Office, www.copyright.gov.
Keep in mind that some items are not eligible for copyright. Ideas, procedures, names, slogans, titles, short phrases or clauses, and symbols are not eligible for copyright. (But many can be protected by a trademark.) Government-generated material is also considered to be “public domain” (meaning it exists outside copyright laws) and therefore is not eligible for copyright protection.
Keep in mind that owning a work you created does not constitute copyright. Unless otherwise agreed-upon, the copyright remains with the owner of the copyright, and duplication or other use is prohibited unless the owner of the copyright agrees. In other words, if you buy a photograph, you do own that specific photograph, but you do not have the right to make and sell duplicate copies of that photograph.
A trademark is a name, logo, symbol, word, or graphic representation used by a company or business to distinguish its products from those of other businesses. If a company provides services, those services can be protected by a “service mark” (which is just another form of trademark).
The symbols TM and SM are used to identify trademarks and service marks that have not been registered. Using TM or SM lets others know that common law protects the item bearing those symbols. Once you have registered a trademark or service mark with the U.S. Patent and Trademark Office, you can replace the TM or SM with the ® symbol. The “R” symbol denotes that a product or service is protected by registration with the Patent and Trademark Office.
Registering is fairly easy and inexpensive; you can do it yourself. The Patent and Trademark Office provides an online application process on its website. To protect a logo, product name, or service name, make sure you always include the proper trademark or service mark and note the date of its first use; that date may help you resolve disputes if others infringe upon your trademark or service mark.
In addition to the completed application form, you will need to submit a drawing of your trademark or service mark, three versions of the mark as it is used, and, of course, the filing fee. Trademarks typically last from 5 to 10 years; once they near expiration, they must be renewed in order to maintain registration and protection.
What is the main difference between a copyright and a trademark? Think of it this way: If you write a book, the book is copyrighted material; if you develop a logo to represent your book, you may be able to trademark that logo.
A patent grants the holder the exclusive right to make, use, and sell an invention for a specific period of time. To pass the “patentability” test, new inventions and designs must meet certain criteria. The chief criteria are usefulness and utility. The nature of your invention or design must also fall into one of the following classes:
o Compositions of matter
o New uses of the above
Utility patents and design patents are the most common form of business patent. Utility patents are good for 17 years and apply to new inventions. Design patents are good for 14 years and apply to unique shapes or designs of existing objects. Patents are not renewable; once they expire, your exclusive rights expire.
If you have an invention you wish to patent, you can apply through the Patent and Trademark Office. But keep in mind that the process is very complex and time-consuming. And, even if you are granted a patent, that patent might prove to provide inadequate protection for your new product or design.
Some attorneys specialize in patent law; ask your lawyer for a referral. You can also get a list of patent attorneys in your area from the Patent and Trademark Office.
Keep in mind the patent process is not for the faint of heart. It is also not necessary unless you create a new design or product that others may want to “steal.” And even if you have a patent, others may still borrow your ideas; in order to enforce your patent you will be forced to take them to court.
Do You Need Protection?
If you’re not certain whether to apply for legal protection for your intellectual property, it’s best to consult an attorney who can advise you on the process — and the cost — for the protection you’re considering. Then it’s up to you to decide whether it will be worth it.
The information provided is presented for general informational purposes only and does not constitute tax, legal or business advice. Any views expressed in this article may not necessarily be those of Nevada State Bank, a division of ZB, N.A.