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Business Law: Protect Your Intellectual Property
Here are 5 ways to prevent others from making money off your
products or your image.
By Nina L. Kaufman, Esq
I'm often asked, "When's the best
time to protect my intellectual property?" The answer (and timing)
are the same as they are for installing a burglar alarm: "Right
before someone wants to steal your stuff."
"Intellectual property," or things
created as a byproduct of your intellect, can become your largest
single asset category, worth millions of dollars . . . if handled
and protected carefully. So let's take a quick look at its different
forms and the ways you can protect them from others' prying eyes
(and hands).
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Patent. Have you
invented something new, useful and non-obvious? The U.S. Patent
and Trademark Office grants you the exclusive right to make, use
or sell an invention for a specified period. This means that as
a patent holder, you can stop third parties from making, using
or selling the invention for a certain number of years
(depending on the type of invention). Kinds of patents include
combination patents, design patents, process patents and utility
patents.
A lot of money can be made during that period of exclusivity
(about 20 years). Just look at the way generic drugs flood the
market after a patent expires. However, you'll have to disclose
your detailed plans for how the invention works. If your
competitive edge depends on keeping this information secret,
consider trade secret protection instead (see No. 5).
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Copyright. Have you
written an article, created a video or made a podcast? You'll
want copyright protection. Copyright protects original works of
authorship, provided they are "fixed" (expressed in writing,
recorded or otherwise captured). In other words, you can't
protect an idea floating about in the ether. But once you have
created the work, you have the exclusive right to reproduce,
adapt, distribute, perform and display it.
However, copyright covers only the way you expressed a
particular idea, not the subject matter overall. Write all you
like about home-based businesses--you can't prevent anyone else
from writing on the topic. Consider filing a copy of your work
with the U.S. Copyright Office, or you may have a difficult time
bringing a lawsuit should you learn that someone ripped off your
magnum opus.
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Trademark/Servicemark.
Got a logo or tagline you want to use? Look into trademark
protection. Trademarks help distinguish your tangible products
from others' products. They also aim to protect consumers from
deception by other businesses that use the same or a confusingly
similar "mark." Consider a trademark as a commercial substitute
for your signature. Servicemarks provide the same protection for
intangible things such as services.
To receive federal trademark (or servicemark) protection, a
trademark must be:
◦Distinctive rather than merely descriptive.
◦Affixed to a product (or used with a service) that is being
sold in the marketplace (interstate commerce)
◦Registered with the U.S. Patent and Trademark Office.
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Trade Dress. Love your
100 percent recycled content packaging? You may want to protect
your "trade dress" (a particular kind of trademark). It covers
the overall appearance and image of a product (through the
packaging) or a commercial enterprise (design and décor). Think
of the Tiffany blue box or the bakery areas in a Fuddruckers
restaurant.
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Trade Secret. Got a
secret sauce that enhances all your food products? If you don't
want the recipe blabbed all over the place, protect it as a
trade secret. However, this information needs to have an
economic value from not being generally known (or readily
ascertainable), and you need to have taken reasonable efforts to
maintain its secrecy. You can protect this information by using
confidentiality/non-disclosure agreements with anyone involved
in the sauce-making process. That includes vendors who help
develop the product, employees and investors. This is your "top
secret" information. Handle it like the CIA does: Make sure that
the amount and timing of disclosure are on a need-to-know basis
only.
If you're investing money in your
intellectual property and want it to distinguish your business,
protecting it should not be a do-it-yourself project. There are too
many registration rules, renewal regulations and enforcement
obligations that come with launching it in the first place.
Also, many intellectual property laws give the right to the person
who created the work--so you want to be sure that those rights are
signed over to you in a way that's enforceable. This area of law is
highly nuanced, so don't rely on your sister-in-law who's an estate
lawyer. Speak to an attorney who specializes in intellectual
property protection so that you can maximize the value of your
precious assets.
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© 2004-2010 The Legal Edge LLC. Nina L.
Kaufman, Esq. is an award-winning business attorney, author,
and speaker. Under her Ask The Business Lawyer umbrella,
Nina offers easy-to-understand business law resources that
protect small businesses and save them money. To learn more,
and receive our FREE "LexAppeal" ezine, visit
http://www.GreatBusinessLawTips.com or contact
Contact Us. This article is for your
general information only. Be sure to consult with an
attorney regarding your particular situation to make sure
you get the specific advice you need. |
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Nina Kaufman, Esq.
Award Winning Business Lawyer, Author & Speaker |
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