Many businesses are founded on an original idea or design. Consider Xerox or IBM. Or look at products like Coke or popular published works such as the Harry Potter books. Where would they all be today if their idea or work had not been protected by intellectual property laws? For a growing business, securing the rights to an idea, products, or an identity can be a critical step in staving off the competition and in locking in future revenues.
Patents, trademarks, and copyrights collectively make up the backbone of intellectual property rights. Which may apply to your business depends on the nature of your product or service and what specifically you are looking to protect.
Patents are used for gaining rights to an invention — which can be a machine, process, design, or even a new type of plant. A patent grants the holder “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. Patents are issued by the United States Patent and Trademark Office, generally for an initial term of 20 years. Once a patent is issued, it is the responsibility of the holder, or patentee, to enforce the patent.
There are three basic types of patents: utility patents, design patents, and plant patents. Utility patents relate to processes, machines, and other manufactured items, substances, or any improvements thereto. Design patents pertain to design for an article of manufacture. Plant patents relate to distinct and new varieties of plants. For all three types, the invention must be “new and original.”Therefore, the application process necessarily involves a patent search.
While there are numerous online patent search engines, most serious applicants consult a patent attorney, as the cost and consequences of using an already patented idea can be significant. Filing fees can run from as much as $600 to $1,000 or more without legal fees, and approval can take time. If you are considering applying for a patent, ask yourself whether the idea you are applying for is even patentable and whether the idea’s long-term potential outweighs the time and cost of applying for a patent.
In contrast to patents, trademarks protect words, names, symbols, designs, or even sounds and colors that distinguish a product or business. A service mark is the same as a trademark, except that it relates to service rather than a product. Unlike patents, trademarks and service marks can be renewed forever as long as they are actively used in a business.
To claim rights to a trademark, you need only place the “TM” or “SM” next to the trademarked material. However, you must first check to see that it is not already trademarked by someone else. Using a trademark that is already registered can land you in an expensive law suit. So you’ll probably need to do a trademark search — which generally involves engaging a trademark lawyer.
A registered trademark (®) goes a step further and requires registration with the Trademark office of the U.S. Patent and Trademark Office. Although it is not required to register a trademark, it does provide some advantages, most notably, greater legal precedent in the event it is challenged and the ability to bring action in a federal court. Trademark registration also is a prerequisite for registration in foreign countries.
What should you trademark and when should you use it? Consider trademarking any material that is integral to your business — its name, a product name, or logo — anything that connotes the business and factors into its marketability. Make sure to include the mark on packaging, displays, and sales literature, as well as any advertising.
Copyrights relate to “original works of authorship” such as articles, books and other writings, music, and works of art — both published and unpublished. A copyright gives owners the exclusive right to reproduce, distribute, publicly perform, and display their work. Legal protection is extended automatically, as soon as the work is created, though registration provides the copyright owner with the advantage of establishing public awareness of its use. The Library of Congress registers copyrights, which last for the life of the author plus 70 years.
Intellectual law can be very complex. Identifying the subtle differences between one trademark and another, defining what constitutes patent infringement or what level of “copying” is acceptable over the Internet — are all issues that are regularly debated by lawyers and judges across the country. There’s also a matter of international intellectual property rights; U.S. trademarks and patent grants are effective only within the United States and every country has its own laws. If you are to successfully navigate the complicated world of intellectual property rights, you should consult a legal professional — preferably one familiar with your specific business. Not only can qualified counsel aid with patent or trademark searches, but they can give you direction on what intellectual property needs registering and help you through the application process.