Law Office Report - Summer 2008
Understanding Intellectual Property
Attorney Keith J. PilgerMost businesses have some form of intellectual property. Intellectual property can consist of trademarks, copyrights, patents, or trade secrets. Understanding the differences between these types of intellectual property is essential to making a determination as to what types of intellectual property are unique to your business, the best ways to protect them, and the best ways to utilize them to increase your bottom line or gain a competitive advantage.
Trademarks. A trademark is a word, a slogan, a name, a design, a picture or any other symbol used in trade in connection with goods to indicate the source of the goods and to distinguish them from the goods of others. A service mark is the same as a trademark, except that it is used in connection with a service instead of goods. A business obtains trademark rights simply by using its trademarks in the marketplace. However, if trademarks are being used in interstate commerce, they can also be federally registered with the U.S. Patent and Trademark Office. Once registered, rights accorded such marks can be used to prevent others from using a confusingly similar mark across the United States.
Copyrights. A copyright is a federal right owned by every author of a work that enables the author to exclude others from doing any of the following activities in connection with the copyrighted work: (1) reproduction of the work, (2) adaptation of the work, (3) distribution of the work to the public, (4) performance of the work in public, or (5) display of the work in public. Original works of authorship are properties protectable by copyright and include literary works, other written materials, computer programs, musical works, dramatic or theatrical works, motion pictures and other audiovisual works, and architectural works.
Patents. A patent is a grant by the federal government of the right to exclude others from making, using, or selling an invention in the United States or importing the invention into the United States. A patent can be obtained by any person who invents or discovers any new and useful process, machine, manufacture, or any new and useful improvements thereof. In order for an invention to be patentable, it must be useful, new, and not obvious to one of ordinary skill in the art to which the technology pertains. Providing all maintenance fees are paid, the term of a patent is 20 years from the date it was filed.
Trade Secrets. A trade secret is defined as any formula, pattern, device or compilation of information, which is not generally known or reasonably ascertainable, that is used in one’s business that gives it an advantage over competitors. Unlike patent protection, which has a limited term, trade secret protection can be of unlimited duration. A prime example is the formula for Coca-Cola, which has been a trade secret for over 100 years. A trade secret does not have to meet the high standards of uniqueness required for patent protection. As a result, the subject matter protectable as a trade secret is extremely broad. However, for a trade secret to remain protected, there must be stringent secrecy protocols to protect trade secret status. These protocols will vary depending upon the industry involved, the company’s size, and its long-term strategy or goals.
Conclusion. Intellectual property is not generally thought of as a major asset of a company. However, depending on its form, intellectual property can yield huge profits for a company either through maximizing its use within the company or through licensing agreements to third parties. If you are interested in realizing the full potential of the intellectual property associated with your business, you should contact our office to discuss the best way to do this based on your particular situation.