Innovation is critical to global economic success. Our ideas and inventions help make society in general, and businesses in particular thrive. In fact, as intellectual property (IP), these ideas and inventions are often considered business assets and must be protected if you as a business or person want to receive their full benefits. When protected, you have certain rights to your IP, including remedies when a person or entity infringes upon those rights.
At Gallium Law, our intellectual property professionals help clients protect their IP. There are different types of protection for different types of IP. The process, however, to ensure proper protection is cumbersome and can create confusion. Below, we share some of the most common questions we receive on this issue. To get smart, specific legal guidance, contact us at 651-256-9480 today to schedule a Free and Confidential Consultation. We want you to have a good working understanding of IP rights and processes so that you make informed decisions for yourself or your business.
What is Intellectual Property?
The U.S. Department of State provides a good working definition of intellectual property as the embodiment of “unique work reflecting someone's creativity and is all around us, manifested through miracle drugs, computer games, films, and cars.”
When a person or entity creates something new, it is the product of their creativity, knowledge, and thought process. As such, it is their intellectual property. It can be a tangible product, a type of service, or even a new process. Whichever or whatever it is, if it meets certain criteria, it is entitled to protection. This protection nurtures an environment of creativity and creates a system of rights and responsibilities.
What are the Benefits of Protecting Intellectual Property?
Protecting your IP offers advantages regardless of whether you are doing so as an individual or business entity. Common benefits of IP protection include:
- Profiting from your idea or invention
- Increasing your company's market share or market value through the sale, commercialization, or licensure of IP
- Increasing brand awareness
- Raising or securing funds by using IP as debt collateral
- Developing a competitive advantage in the market
These and other benefits are dependent on the type of IP and the protection you secure for it. Some types of protection are automatic while other types require a process to qualify.
What are the Main Types of Intellectual Property Law?
There are four main types of IP. Below is a brief description of each.
The United States Patent and Trademark Office (USPTO) defines copyright as “a form of protection provided by U.S. law to the authors of ‘original works of authorship' fixed in any tangible medium of expression.”
This definition is broad and covers different types of materials that can be subject to copyright, like:
- Music and sound recordings
- Paintings and sculptures
- Architectural works
Copyrights are not applicable to ideas alone.
According to the USPTO, a patent grants an inventor property rights to their invention. These rights include the ability to exclude others from “‘making, using, offering for sale, or selling'” the invention.
There are three different types of patents:
- Utility patents, which cover how an invention is made or functions;
- Design patents, which cover an invention's ornamental or non-functional features; and
- Plant patents, which cover newly discovered plants.
A trademark is defined by the USPTO as a “word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others.”
Popular examples of trademarks include:
- McDonald's® golden arches
- Walt Disney's Mickey Mouse
- Nike's swoosh logo and Just Do It® slogan
It is possible for a trademark to cover a group of products.
A trade secret is an intellectual property right that belongs to a particular entity and has value because it is not common knowledge. Something that is public knowledge cannot be considered a trade secret.
Ways in which trade secrets materialize include but are not limited to:
- Engineering information
- Methods, processes, and knowledge
- Business and financial information
- Business plans
- Methods of calculating costs or pricing
- Customer and supplier lists
- Internal marketing and development strategies
- Computer programs (e.g., source code)
- Pending or unpublished patent applications
- Products or services in research and development
- Means to collect data
Popular examples of trade secrets include:
- Coca-Cola's recipe
- Eleven herbs and spices used in KFC's fried chicken
- Google's algorithms
- Criteria used for New York Times's Best Seller List
How Do I Protect My Intellectual Property?
A person or entity should take steps to keep IP protected. By doing so, they help protect their own interests and ability to keep their IP safe from others.
Some steps to protect IP include:
- Filing for the appropriate type of IP protection (i.e., patent, trademark, copyright, or trade secret)
- Keeping detailed documentation of ideas and content (i.e., records, descriptions, drawings, dates, etc. that prove you conceived and developed the idea or invention and not someone else)
- Keeping private ideas and secrets confidential
These three steps sound easier than they are. Taking these steps, however, will help in maintaining your IP rights.
One additional step to help ensure you properly and timely protect your IP is speaking to an IP lawyer. They will help you ensure all the necessary steps are taken to maximize IP protection and the benefits that flow from it.
Can, and if so, How Do I Transfer Intellectual Property?
IP can be transferred between parties. The proper way to complete this type of transfer depends on several different factors, including the type of IP and the agreement between the parties. Sometimes, IP is part of an estate plan, and ownership passes through the estate.
Under certain circumstances, it may be possible to transfer IP through an assignment of IP rights. When considering a transfer of IP, it is always a good idea to seek counsel from an experienced IP attorney.
How Are Intellectual Property Rights Enforced?
The most effective means to enforce IP is through registration. Sometimes, however, especially when IP rights have been violated, other enforcement means are necessary.
When another person or entity infringes upon your intellectual property rights, the most obvious way to enforce your rights is through litigation. Filing a lawsuit may be the best way to proceed in cases where time is of the essence. An injunction, which causes a party to immediately cease a certain action, may also be necessary.
Another way to enforce IP rights includes sending a “cease and desist” letter to the infringing party. Sometimes, when time is not critical, this letter is sent before initiating litigation.
Also, according to the particular circumstances of the situation, it may be a good idea to make a report to the appropriate authorities for criminal prosecution.
What to Do if Accused of Violating an IP Right?
When accused of violating an IP right, the best first step is to contact an attorney, specifically one specializing in intellectual property infringement defense. They will help you determine (1) whether or not you have actually violated an IP right, and if you have, (2) the best way to remedy the situation with the least disruption to you.
Gather any and all information you have regarding the allegation made against you for your attorney to review.
What Do Intellectual Property Lawyers Do?
IP lawyers wear several different hats. First, they can help determine whether or not something is indeed IP and needs to be protected. If so, the attorney will determine what type of protection is needed and file the appropriate paperwork to obtain the patent, trademark, or copyright. Once the protection is obtained, an IP lawyer will help their client if any other party attempts to infringe upon their rights.
IP lawyers are also integral to the development of IP strategies. Building a strong working relationship with an IP attorney can act as a competitive advantage in your industry and help you gain a larger market share.
Contact an Intellectual Property Attorney Today
Intellectual property is critical to growth, and IP protection is critical to ensuring you receive the benefits of your ideas and hard work. At Gallium Law, our IP professionals are here to help you get the IP protection and strategies you need. Contact us today by either filling out the online form or calling us at 651-256-9480 to schedule a Free and Confidential Consultation.