How to Protect Your Company's Intellectual Property

Types of intellectual property rights your business might have, and how to go about protecting those rights.

Intellectual property is often crucial to the success of a business. Tight control over creative output can set a business apart from competitors and distinguish its products and services in the marketplace. But how should you protect it?

The term "intellectual property" is actually quite broad, in that it covers numerous categories of information subject to legal protection. Many businesses create information that is in some way unique, and that results in economic benefit. For such entities, it often makes sense to invest in intellectual property rights, by taking certain protective actions, including registering with federal government agencies.

What types of intellectual property rights might your business have, and how might you go about protecting those rights?

Patents: Protection for Inventions

If your business has developed a new and better product or process that is unique, useful, and non-obvious, you will want to protect the competitive advantage this gives you by obtaining a patent. The holder of a patent can stop third-party individuals and businesses from making, using, or selling the invention for a period of years (typically 20) depending on its type.

Patents are issued by the U.S. Patent and Trademark Office, which publishes a helpful online guide to the patent registration process. Obtaining a patent can be complicated and time-consuming, owing to the level of technical detail that is involved; so you might wish to hire an attorney with experience in patent law to help you through the process.

Another consideration: If your business is one in which inventions are created on a continuing basis, such as a medical laboratory or software company, it's hugely important that you have a clear understanding about who owns the inventions: your business or the employees who create the inventions?

This can depend on the type of work arrangement that you utilize, for example, on the contents of employment agreements. You might wish to review those agreements and ensure that workers sign an agreement stating that any inventions created by them while working for your business belong to the business. Otherwise, those workers could attempt to patent the inventions in their own name.

Copyrights: Protection for Creative Works

A copyright provides protection for original works of authorship that are fixed in a tangible medium of expression, including literary, musical, and dramatic works, as well as photographs, audio and visual recordings, software, and other intellectual works.

Copyright protection begins as soon as the work is fixed in a tangible medium. The author should begin using the copyright symbol immediately as a method of informing others that he or she intends to exercise control over the production, distribution, display, and or performance of the work.

While it is not necessary to file for copyright protection with the U.S. Copyright Office, doing so will make it easier to seek court enforcement of the copyright. Consult an attorney about the advantages and disadvantages of filing.

What sorts of creative content might your business have that would be protectable through copyright? Consider any brochures, videos, websites, or articles that it has produced. Software, too, can often be protected by copyright. If these materials are important to your business, and you would not want to see a competitor replicate them, it could be worth registering a copyright.

Trademarks: Protections for Brand Identity

A trademark protects various elements of a business's brand identity. Most importantly, this can protect the name of a product (and business), by preventing other businesses from selling a product under the same name (or operating under the same business name themselves).

Having a unique and identifiable name for a product is an advantage for a business. Trademark law seeks to protect consumers from confusion or deception by preventing other businesses from using the same or a confusingly similar name for their products. In addition, trademarks apply to logos, images, and other identifying aspects of a brand.

Being the first to use a name or logo is important to protect the continuing right to use it, but filing is important for enforcement purposes. The first step in filing for trademark registration is performing a trademark search. Taking this important step could prevent you from investing a lot in the promotion of a product under a trademark that's already in use. An attorney who practices in the area of intellectual property can help with a trademark search and application.

To register your trademark, visit the U.S. Patent and Trademark Office's website, and read its guide to registration. You typically do not need a lawyer to register a trademark, though speaking to one experienced in brand protections can often be helpful.

Trade Secrets: Protection for Processes

A final form of intellectual property that could be important for your business is trade secrets. Trade secrets may consist of any formula, pattern, physical device, idea, process, or compilation of information that (1) provides the owner of the information with a competitive advantage in the marketplace, and (2) is treated in a way that can reasonably be expected to prevent the public or competitors from learning about it, absent improper acquisition or theft.

In other words, a trade secret could include any information that aids your business or position in the market that is not publicly disclosed and is kept private. Examples of trade secrets are easy to find. They include secret formulas for foods or drinks; marketing or advertising strategies; survey or research methods; and secret customer or client lists.

An important element of trade secrets is that the business must maintain them as confidential. If Coca Cola put their secret formula for Coke on its website, that recipe would no longer be a trade secret. Thus, to prove that you have a trade secret, you must take steps to keep it secret. These might include password protections, locks on certain doors, and/or having employees sign nondisclosure agreements as a condition of employment.

Unlike patents, copyrights, and trademarks, trade secrets are not registered with any government agency. Rather, they exist in the common law by virtue of how they are used. Again, if you believe that trade secrets are critical to your business's success, it might be wise to speak with an experienced intellectual property attorney about methods to ensure that their secrecy would be enforceable in court in the event that an employee or competitor attempted to steal them.

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