Intellectual Property Protection

Intellectual Property Protection

Intellectual property law is designed to support innovation. This is done by striking a balance between rewarding the creators of intellectual property and creating a large public domain from which future creators can draw. The extent of intellectual property protections provided to a creator depend upon the nature of the intellectual property created. In general, the four types of intellectual property are copyrights, trademarks, patents, and trade secrets.


What is a copyright?
Copyright is the legal protection provided to the creator of a work that is an original, fixed, non-functional expression. “Original” means that the work is independently created by the creator (e.g. not copied from another work) and has a creative component to it. For example, a phone book that only uses alphabetical categorization is not considered a creative work and is therefore not “original.” “Fixed” means the work must be stored in some form of medium, such as written on paper, saved on a computer drive or recorded on film. Unrecorded spoken words are not copyrightable. “Non-functional” means that the portion of the work determined by pragmatic, constructional and technical requirements is not protected. For example, although architectural work may receive copyright protection, the individual elements determined by function (e.g. presence of doors and windows; compliance with building codes) are unprotected. Finally, “expression” means that ideas, facts and discoveries are not copyrightable; only the manner in which they are expressed or compiled.

How do I get copyright protection?
The law automatically grants copyright protection to any work meeting the requirements. You can register your work with the U.S. Copyright Office. Advantages of registering a copyright include (1) the right to sue for infringement, (2) conclusively proving the validity and ownership of the copyright and (3) being able to obtain punitive damages and attorney’s fees. Registering your copyright is relatively cheap and quick.

What are the benefits of copyright protection?
The owner of a copyright has the exclusive right for a limited (but long) period of time to make and distribute copies of the work, the right to make derivatives of the work and the right to publicly perform and display the work. The rights granted to a copyright owner are subject to numerous exceptions, the most noteworthy being “fair use”. Fair use allows the public to make limited use of a copyrighted work for purposes such as education, research or reporting. Commercial uses of copyrightable work are less likely to be considered fair use.


What is a trademark?
A trademark is any name, symbol or device used in commerce to identify and distinguish goods or services. Examples include the word “McDonald’s”, and the Nike swoosh. In order for your mark to receive full protection, however, it must be distinctive, which means it does not generically describe the goods and services and is not confusingly similar to any existing marks in the relevant jurisdiction.

How do I get a trademark?
As soon as you start using your mark in commerce, you obtain certain common law rights to use the trademark. However, many individuals elect to register their marks with the United States Patent and Trademark Office. Advantages of registering your mark include nationwide protection, conclusive proof of the validity and ownership of the mark, the ability to sue in Federal Court for infringement and the right to certain statutory damages and attorney’s fees. Registering your trademark can typically be done for under $1,000 and takes approximately nine months to complete.

What are the benefits of owning a trademark?
A trademark owner has the right to use the mark, and the owner of the registered mark can compel others to stop using confusingly similar marks.


What works can be patented?
A work must be novel, useful and non-obvious in order to be patentable. “Novel” means the work must be new to the world. “Useful” means the work has some practicable application and is not merely creative. Finally, “non-obvious” means the work cannot be of such low order of creativity that it would have been obvious to someone in the relevant industry.

How do I get a patent?
In order to get a patent, you must file an application with the United States Patent and Trademark Office. This process is generally expensive and time-consuming.

What are the benefits of owning a patent?
A patent gives the owner the exclusive right to use, license or create the patented good for a period of time, typically 14 years.

Trade Secrets

What is a trade secret?
A trade secret is information that has economic value because it is kept confidential. Examples include customer lists, business methods and recipes, and the most famous example is probably the formula for Coca-Cola.

How do I get a trade secret?
As soon as you create information that fits the definition of trade secret, the law protects the information as a trade secret. There is no requirement that you register the information (registering the information would in fact defeat the purpose of a trade secret). Importantly, the owner of a trade secret must take steps to ensure the information is kept secret. Typically, this means that the information should be identified and secured and that anyone with access to the trade secret (e.g. customers, employees) should have a contractual obligation to keep the information confidential.

What are the benefits of owning a trade secret?
The law does not give you the exclusive right to use a trade secret. Instead, other parties are prohibited from wrongfully accessing the trade secret. You can be entitled to damages and injunctive relief if you can show that someone has misappropriated one of your trade secrets.

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