As a small business owner, creating unique value in the marketplace is how you stand out from the pack and gain a competitive advantage. If you’ve done any sort of marketing, you know that the key to a successful marketing campaign is to differentiate your business’ products or services from what everyone else is offering.
What you might not know is that thing that makes your business so special could be intellectual property that your business is legally allowed to protect. Whether it be your business name or logo, a product that you offer in your store, or the secret recipe for your family restaurant’s famous chocolate chip pancakes, you need to understand your intellectual property rights so that you can protect your business.
What Is Intellectual Property?
Intellectual property (called “IP” for short) includes creative, scientific, or business ideas that are creations of the human mind. Examples include inventions, art, literature, designs, symbols, names, images… (the list goes on and on). If your mind thought it up, there’s a good chance it could be IP.
As a lawyer who regularly helps small businesses protect their intellectual property, I can tell you that many people don’t even realize that their businesses own any IP. I hope that after you read this blog, you will be able to identify all of the different IP assets your business owns and why it’s so important to protect your IP.
Protecting Intellectual Property
The U.S. government offers people and businesses the opportunity to protect their intellectual property from use and appropriation by others. The U.S. government classifies IP into four categories:
- Trade Secrets
Each of those categories protects a different type of intellectual property. It’s important to understand the different types of protection so that you can make sure you register your IP appropriately.
A common type of IP protection is the patent. Patents protect inventions and new technologies by preventing other people from being able to make or sell your invention for a limited time. To receive patent protection, you have to submit a patent application that provides the details of the invention to the US Patent and Trademark Office. It generally takes two to three years for a patent to be granted, and the process is extremely complicated. Expert assistance is highly recommended.
Once a patent is granted, the invention will be publicly disclosed, and the patent owner will be given a limited amount of time to be the sole controller of their invention (typically 15 to 20 years). After the patent expires, the invention becomes part of the public domain, which means others can make the invention too. A familiar example of that process is the creation of generic prescription drugs once the brand name drug’s patent expires.
There are three types of patents your business can obtain: utility patents, design patents, and plant patents. Each type of patent protects a specific type of invention or discovery and has its own set of eligibility requirements. You’ll usually need to seek the help of specialized counsel to determine the correct type of patent you should file.
Trademarks are distinctive words, images, phrases, symbols, or designs that identify a brand and that distinguish your company’s goods or services from someone else’s goods or services. Trademarks frequently include brand names, product names, slogans, and logos; and less frequently may include unique colors, sounds, fonts, product shapes, or packaging.
As with a patent, if you want to protect your business’s trademark, you should register with the U.S. Patent and Trademark Office. Luckily, trademark registrations are typically processed faster than patent applications, so you normally will only have to wait for 9 to 12 months.
Once your trademarks are registered, your competition is prohibited from copying or infringing on your business’ trademarks. Trademark protections last for 10 years after registration, but you can renew them for as long as you are using the trademark.
Copyright gives the creators of original creative works the exclusive rights to print, publish, perform, film, or record the works, and also authorizes them to determine if their works can be used by others. Copyright can apply to an array of different tangible creative works that are original to the author and can be seen, viewed, perceived, or, as in the case of software, read by machinery. Here a few examples of the various types of creations that can be protected by copyright:
- Newspaper articles
- Written speeches
- Architectural designs
As you can see, many different types of original works are protected by copyright, and there are many more that I haven’t listed above! Copyright is a very broad legal protection that applies to countless varieties of creative works.
Even if you do not file for copyright protection, your business’ creative works are protected by copyright from the moment they become tangible. However, to sue or enforce your rights in the copyright, you will need to register your copyright with the Library of Congress through the US Copyright Office. Generally, the copyright registration process takes six to nine months.
Copyright, whether registered or not, exists for the life of the copyright owner and then an additional 70 years after the owner’s death. In the case of works that have multiple creators, the copyright lasts for 70 years after the last author’s death.
According to the US Patent and Trademark Office, a trade secret must meet three elements:
- It is information that has either actual or potential economic value because it is not generally known.
- It has value to others who cannot legitimately obtain the information.
- It Is subject to reasonable efforts to maintain its secrecy.
As long as these three elements remain true, there is no limit on the amount of time a trade secret can be protected.
Trade secrets are a little different than the first three types of IP that we talked about. Unlike the others, trade secrets cannot be registered for government protection (because then it wouldn’t be secret!). Instead, to protect your trade secrets you must take affirmative steps to keep them from becoming public, such as requiring the execution of non-disclosure agreements or confidentiality agreements with anyone who comes into contact with the secret information.
Why Is Protecting My Intellectual Property Important?
Your intellectual property is the lifeblood of your small business. By registering your IP with the government or otherwise protecting it, you ensure that your competitors can’t steal your ideas and profit off of them. When someone tries to pass your IP off as their own or attempts to benefit from your IP in some other way, that’s called “infringement”. Registering your patents, trademarks, and copyrights, and properly protecting your trade secrets allows you to take people who try to steal your business’ IP to court to enforce your legal rights and sue for infringement.
While you might think that your business is too small to need IP protection, don’t sell yourself short! Registering and protecting your IP is an important step for businesses of all sizes to protect their original ideas, creations, and branding.
It also makes your business more valuable if you ever decide to sell your business. You work hard every day to ensure that your small business succeeds. It makes sense that you ensure someone else doesn’t profit from your creativity and dedication.
Mod Law Firm can help you protect your brand and creative smarts by helping you protect your intellectual property. Schedule an introductory consultation today if you want to learn more!