Intellectual property is a form of intangible property that includes creations of the mind, such as literary and artistic works, discoveries, inventions, words, symbols, and names.
Intellectual property rights are defined as the exclusive rights of an individual or company to use, produce, and sell an idea. This includes patents, trademarks, copyrights, industrial design rights, trade secrets, and more. Read more in detail here: intellectual property rights.
Disclaimer: The material in this article is meant to be general in nature, and nothing in it should be construed as legal advice. Before making any intellectual property or other legal choices, please get legal advice.
Do you have any intellectual property in your company?
You are not alone if you say “I don’t know” or “I doubt it” when someone asks whether your company has Intellectual Property (IP).
Many new companies first concentrate on activities such as establishing an organization, reserving a domain name, enrolling in online accounting services or employing an accountant, and, in certain instances, meeting with a company lawyer. Furthermore, solitary inventors or creators sometimes wear all of the hats and operate in a DIY manner without consulting anybody.
Your valuable intangible assets may also be at danger if you are among those who are aware that they have IP but are unable to define or create an IP listing with protection measures. It’s rare to find yourself in a company scenario where there is no IP worth recognizing and preserving.
How many times have you heard someone use the words “intellectual property,” “ideas,” and “patents” interchangeably? Many technology companies are aware of IP problems, but they are primarily concerned about patents. Copyright, Trademark or Servicemark, Patent, and Trade Secrets are the four types of intellectual property that must be understood.
IP is more than a legal problem.
Not only may a lack of knowledge of your IP result in the loss of your IP or business, but it can also lead to significant mistakes while attempting to move your company to the next level. When it comes to financing, due diligence for an exit or acquisition, or recruiting staff and contractors, having a comprehensive IP inventory and a plan to monetize and defend your IP is essential.
Simply stated, correctly recognized and secured IP improves your company’s financial worth.
IP rights provide businesses with a competitive advantage by excluding competitors from a market, generating revenue through licensing or cross-licensing, improving the market’s perception of a product or brand, and, in some cases, using IP offensively to seek injunctions, sue for damages, or prevent counterfeit knockoffs.
Intellectual property is a critical commercial problem. In the 1990s, IBM, for example, made $1 billion by licensing technology that were unrelated to their main business. Many people are shocked to discover that Texas Instruments’ licensing money from unused patent rights exceeds the company’s normal revenue.
Copyright and trademark definitions
The ancient saying “a little knowledge is harmful” may readily be applied to intellectual property. Copyright and trademark (or service mark) are often misunderstood or used interchangeably.
A trademark is defined by the United States Patent and Trademark Office (USPTO) as:
Any term, name, symbol, device, or combination used or intended to be used to identify and differentiate the goods/services of one seller or provider from those of others, and to designate the source of the goods/services, is referred to as a brand name; a trademark or service mark.
The trademark’s purpose is to protect customers from brand confusion. To put it another way, the product is associated with a certain brand.
When you purchase a Pepsi product, you know you’re getting a Pepsi product, not a generic store brand cola or Coke.
Copyright is defined as follows by the United States Copyright Office:
Original works of writing fixed in a physical medium of expression are protected under the United States Constitution and by law.
You have “fixed in a physical medium of expression” and have copyright protection once you type, draw, write, text, or otherwise produce anything that can be seen by others, such as video.
For example, copyright protects the words in this article as they are written and shown on a computer screen. It may be perplexing since a phrase is protected by copyright when written or shown in an advertising, yet it can also be trademarked. However, one cannot be used in place of the other.
Make use of it first—and then prove it!
Suzanne, an entrepreneur from the United States, learnt the hard way how to establish a brand without first utilizing or obtaining a trademark. She established a Limited Liability Company (LLC) under the brand name, but she failed to register it with the state or the USPTO.
Suzanne was startled to find a very identical trademark application in process when she tried to trademark her business name with the USPTO. Unfortunately, she had revealed her brand name to the same organization that had submitted this trademark registration the previous autumn.
If the trademark or name is utilized in commerce in the United States, the “TM” may be added after the name. The company therefore enjoys common law trademark rights as of the date of use, without having to file with the State or the USPTO, as long as continuous use in commerce can be shown.
If a company has not yet used the brand or name in commerce, it may submit a “intent to use” application with the USPTO, thereby reserving the name or brand. In all cases, you should check to see whether the name is already trademarked by someone else before using it.
Suzanne had initially utilized the brand in the autumn as part of her company’s early promotion. Unfortunately, that usage did not precede the date of the competitor applicant’s initial use in commerce. Suzanne might have shown that she was the first to use the brand name in commerce before the other company. She would then have been able to sue the competitor for trademark infringement or submit her own trademark application with an earlier date of use.
The conclusion is that Suzanne should have filed a trademark when she first thought of the brand, and certainly before informing anyone about it. Suzanne has also realized the importance of keeping track of the date when the brand name was first used in commerce.
Suzanne contemplated publishing a book using the brand name as the title, which posed copyright issues. It may seem reasonable to assume that once a book title is written down, it will be protected by copyright. The competing applicant, on the other hand, may send Suzanne a cease and desist letter, requesting her to stop using the name. Customers may be confused and believe a book with a similar title is from a competitor. Suzanne is now unable to use her original brand name due to a lack of trademark or copyright protection.
Understand your legal rights.
The following scenario benefited a young entrepreneur, yet the final outcome should never have occurred.
Lexie established a pool business years ago and registered it with the state under the name “Crystal Clear Pools.” For a nineteen-year-old, she had collected around 30 pool patrons and was doing well.
Lexie was approached by a local rival who demonstrated that he was operating under the identical business name without any state or USPTO registration or usage of the TM mark. For the last ten years, his Crystal Clear Pools has serviced over 300 pools.
Lexie negotiated an annual payment for his firm to continue to use the “Crystal Clear Pools” brand, using her state’s “doing business as” name registration as evidence of ownership. She eventually sold her business to him.
Regrettably, he was unaware of his rights. He had been using Crystal Clear Pools in commerce even before Lexie had graduated from high school, and therefore possessed a common law trademark. Lexie’s subsequent State registration should have overridden the common law trademark protection. This is an excellent illustration of why getting legal advice when these problems occur is so important.
The next post in this series will address some more trademark misunderstandings. Following sections will cover typical misconceptions about patenting your IP, IP ownership methods, unique copyright issues while creating software, and patents vs. trade secrets. However, always contact an attorney if you are unsure.
Intellectual property is a concept that has been around for centuries. It is an idea that people can own their ideas and creations as long as they have not been shared with the public. In recent years, this idea has been challenged by those who believe that intellectual property should be shared more freely. Some of these people have even gone so far as to call it digital commons. Reference: do you agree with the idea that someone can “own” intellectual property?.
Frequently Asked Questions
What is intellectual property for dummies?
Intellectual property is a type of property that can be protected by law. It includes intangible creations, such as ideas, inventions, and artistic works.
What are the 4 key rights of intellectual property?
The 4 key rights of intellectual property are the right to copy, use, distribute and create derivative works.
What are the 4 types of intellectual property?
The 4 types of intellectual property are copyrights, patents, trademarks and trade secrets.
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