When you or you and your collaborators create something new, anything new, it becomes your intellectual property (IP). Depending on what type of intellectual property you have created, it will most likely need to be protected in one of three ways, or a combination of the three: a trademark, a patent, and/or a copyright.
Protecting your intellectual property prevents anyone from using it without your knowledge and permission. It also ensures ownership, and that you are compensated properly for your work.
Trademarks, patents, and copyrights exist to protect different forms of intellectual property – let’s break them down.
What Is A Trademark?
A trademark protects words and designs that identify specific brands, goods, or services. For example, a trademark will protect a brand’s name i.e. McDonald’s, a brand’s slogan i.e. I’m Lovin’ It, and a brand’s logo i.e. the golden arches.
Trademarks serve a dual purpose: to protect the general public from confusing brands and to protect businesses’ investment in their brands. Trademarks help businesses protect a brand’s identity, what distinguishes it from competitors, and what makes it desirable. It is extremely important to apply for federal or state registration (when available) of a trademark if, after sufficient research and use, the business decides the trademark adequately represents its offerings. If unregistered, then the trademark will depend upon statutes under state law as opposed to federal law and its administrative agency, the United States Patent & Trademark Office, for protection and enforcement.
Enforced trademarks will protect against designs or words that have a “likelihood of confusion”. This means that anyone who uses a similar or identical trademark in the United States could be liable under federal or state laws, or both. This standard balances the interests of trademarks: to help reinforce brand identities for businesses, while also protecting consumers from accidentally buying unintended goods or services.
What Is A Patent?
Patents protect novel inventions that are non-obvious to one skilled in the art. Inventions can be anything with a utilitarian or functional purpose: from a machine to a hybrid plant to chemical compositions. A patent will grant you the right to produce your invention without the worry of competitors replicating it for the duration of your protection.
More examples of what a patent will protect are phone applications, pharmaceuticals, and engines.
There are three different types of patents:
- Utility patents
- Design patents
- Plant patents
In basic terms, utility patents protect a new or improved process, machine, or composition. Plant patents protect asexually reproducible plants and new plant characteristics. Design patents protect unique looks or designs, for example, the curvy structure of a Volkswagen Beetle.
What is a Copyright?
According to Copyright.gov, copyright is “a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. In copyright law, there are a lot of different types of works, including paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, etc.”
In other words, copyright protects your original creative works from being copied or used without your permission. Copyright law protects your work as soon as you have created it but there are major benefits to registering your copyright.
One, copyright registration creates the presumption of ownership and a public record of your work. Two, it allows you to sue for different types of unauthorized use of your work. Three, and most importantly, if you do sue, you’ll be entitled to statutory damages, making it more likely to financially recover from costs.
Read more about how to register copyright yourself.
Some intellectual property will need a combination of trademarks, patents, and copyrights. For example, a music album may need to trademark the band name as well as copyright the music and recording, each a separate copyright.
The best way to know that your intellectual property is fully protected is to consult with a small business lawyer, particularly one well-versed in IP law.
Lee Morin, Principal and Founder of Morin Legal, has seventeen years of professional experience in intellectual property law. Of that, we have nine years of experience in United States trademarks, copyrights, and trade secrets.
Coupled with a background in patents and working relationships with a global network of IP attorneys, we identify your ideas, creations, and brands and develop a strategy to help you fiercely protect them. We also offer guidance for developing and maintaining a portfolio of your intellectual assets.
Feel free to schedule a consultation.