As marketing—and all other business activities — have become increasingly reliant on technology, protecting intellectual property has become a top priority for successful companies. That’s why every marketing team must understand the basics of intellectual property law.
What is Intellectual Property?
The American legal system provides certain rights and protections for owners of property. These rights and protections even extend beyond our borders through trade agreements. Intellectual property can be any product of the mind that the law protects from unauthorized use by others in commerce.
Intellectual property — including inventions, business methods, processes, creations, business names and logos — can be among the most valuable assets of your business. As a business owner you have to understand that protecting your intellectual property is as important as securing any other asset on your balance sheet. You must understand the rights and responsibilities associated with optimizing and monetizing your intellectual property.
Using IP Law to Protect Your Intellectual Property
There are four basic types of intellectual property: patents, trademarks, copyrights, and trade secrets.
If you’ve developed a proprietary technology, federal patent protection grants your company the exclusive right to make, use, sell or import the invention or discovery for a limited time. So long as your technology is novel, useful and nonobvious, you can be given exclusive rights to its use that will continue for the duration of the patent.
Filing a patent can be an arduous and lengthy process. The United States operates under a first to file, not a first to create system, which means that the inventor with the earliest filing date will get the rights to the patent. This makes the timing of your filing critical. To preserve an earlier filing date, many businesses choose to first file for an easier-to-secure provisional patent. This gives them a year to complete a non-provisional patent application.
It’s important to recognize that a patent issued by the United States Patent and Trademark Office (USPTO) only applies in the United States. If your company competes abroad and needs patent protection in other countries, you must apply everywhere you want protection. The Patent Cooperation Treaty makes this easier with procedures to file a single international patent application simultaneously in 148 member countries.
As any marketing professional knows, trademarks are a vital way to protect a company’s brands. Trademarks protect any distinctive marks, such as a logo or brand name, that distinguish your brand from others in the market.
Simply using a trademark in commerce can lead to common law protection. Still, registering your marks with the USPTO not only ensures that you are fully protected, but also increases the set of remedies available to you if someone infringes on your trademark. Registration therefore provides significant benefits for companies, including constructive notice to the public, the exclusive right to use the mark in connection with the particular classes of goods or services listed in the registration, and a federal cause of action for any infringement.
Marketing a brand inherently involves the creation of original works, whether in the form of advertising images, editorial copy or even something as seemingly simple as a social media post. These types of work can be protected by copyrights. A copyright is a form of protection provided under Federal copyright statute for “original works of authorship” fixed in a tangible medium of expression. This can include both published and unpublished intellectual works such as poetry, novels, films, and songs, as well as advertising copy, graphic art, designs, computer software, and even architecture.
The copyright holder can prevent others from selling, performing, adapting, or reproducing a work without permission—even substantially similar works used for a similar purpose. It’s important to note, however, that copyrights only protect the form of expression, not the underlying facts, ideas, or methods of operation.
Generally, copyrights automatically attach to the creator of a new work at the time of its creation, but you can also choose to register them formally with the United States Copyright Office. Registration provides significant advantages, including having a public record of the copyright, certain presumptions of validity, and the right to bring a lawsuit for infringement and collect possible statutory damages and attorney’s fees. Registration with U.S. Customs also allows you to prevent the import of infringing copies of your work.
- Trade Secrets
Another category of intellectual property that is important to protect is your company’s trade secrets. A “trade secret” is defined as confidential, proprietary information that provides your business with a competitive advantage. This can include anything from customer lists to manufacturing techniques to procedures for analytics.Trade secrets are largely protected by state law, which is generally modeled after the Uniform Trade Secrets Act. The Act considers your proprietary information a trade secret when:
- The information is a formula, pattern, compilation, program, device, method, technique, process or other protected instrument;
- Its secrecy provides the company with actual or potential economic value by not being known or readily ascertainable; and
- The company takes reasonable efforts to maintain its secrecy.
Trade secrets are protected indefinitely until public disclosure of the secret occurs. All companies must therefore avoid inadvertent disclosure. Implementing non-disclosure agreements (NDAs) with employees and third parties is the most common legal method of protecting your trade secrets. These agreements set out the rights and duties relating to confidential information, and give you leverage in case of misappropriation of your trade secrets.
Misappropriation occurs when the trade secret is acquired either by improper means or through a breach of confidence, and is actionable in court. How extensively your company has used NDAs may be a factor that a court uses to ascertain whether you took “reasonable efforts to maintain secrecy,” so it is vital to ensure that your company is using well-crafted NDAs for the sake of your IP protection.
An Experienced IP Attorney Is Your First Line of Defense
In today’s competitive environment, it is imperative for your company to fully understand its intellectual property assets and protect them properly. An intellectual property attorney can help your company maximize your competitive advantage through a comprehensive IP protection strategy.
Your IP attorney is your first line of defense against others using or abusing your IP. Whether you partner with a qualified outside attorney, such as through the Priori Network, or hire full-time in-house counsel, an IP lawyer is best-equipped to keep your IP the competitive advantage it should be.