Greg M. Popowitz | Assouline & Berlowe
If you own a business or are starting a new business, you are selling a service or a product. If those sales enter the United States market, you want to make sure to protect your business’ Intellectual Property. But what is Intellectual Property and why should you protect it?
Intellectual Property is often referred to as a bundle of rights regarding trademarks, patents, and copyrights. This bundle of rights help protect certain aspects of a business by stopping others from copying its Intellectual Property.
First, trademarks are source identifiers. That means when a consumer sees the Nike brand, the consumer knows it is the Nike company that is producing the quality products or services showing the Nike brand. Commons types of brands are a character mark (the term Apple), a logo/design (the Apple graphic), and slogans.
One of the key aspects of trademark law in the United States is that a brand must be used in business to receive protection. The business must be offering services or selling products in the United States market. If a brand is registered through the United States Patent and Trademark Office (USPTO), the owner of the brand will have rights to protect the brand throughout the United States. A unique fact is that a business owner can use the TM or SM designation for any mark they consider their brand (TM for products, SM for services). The business can only use the federal registration symbol (the circle R) once the brand is formally registered with the USPTO.
Trademark protection is critical in business. As a business owner, you spend a lot of money and resources to acquire customers and make the connection between your brand and your services/products. You do not want a competitor to copy your brand, or a slight variation, and start offering similar or identical services/products in the United States. Securing a federal trademark registration allows you to enforce your trademark rights in the United States and seek injunctive relief and damages for infringing activity.
Second, patent rights protect new, useful, and non-obvious products and processes. Once you have a patent application on file with the USPTO, you can use the phrase “patent pending” on the product or product packaging to put the public on notice that there is an active patent application on file.
The two most common types of patent applications are design patents, which focus on the appearance or shape of the product, and utility patents, which focus on the functional aspects of the product. For utility patent applications, there is a placeholder application (called a provisional patent application) that allows the applicant to formally disclose the details of the invention to the USPTO without all of the required elements of a full, non-provisional patent application. However, a provisional patent application lasts one year and a non-provisional application would need to be filed to preserve the filing date of the provisional patent application.
Another key factor for patent rights is that once the invention is disclosed publicly, sold, or offered for sale, the applicant only has one year to file for patent protection. If a patent application is not filed within a year, the subject matter enters the public domain and the applicant is precluded from seeking patent rights on that specific subject matter. If you are going to a trade show or presenting the invention to potential investors or business partners, preserving your rights through a patent application is important.
Similar to trademarks, securing a patent will enable you to stop competitors from copying your invention and selling the product in the United States. The life of a patent varies based on the type of patent secured, but is typically 15 years from issuance of a design patent, or 20 years from the application filing date for utility applications. While patents have a defined enforcement term, trademark rights are different and can last indefinitely if the brand is still being used.
Lastly, copyright law protects original works of authorship in a fixed/tangible form. Examples include books, articles, videos, and website content. In the United States, the author owns the copyright interest upon creation. However, to initiate litigation for copyright infringement, a registration from the Copyright Office is required. There are incentives to seek registration within three months of the initial publication of the work. This can be critical if someone has copied photographs you use for your business.
Protecting your Intellectual Property can provide an invaluable tool to stop others from copying your mental creations. As your business grows, other people may try to copy your Intellectual Property. You want to have the protection in place to stop potential infringing activity and minimize the financial impact to your business from lost sales due to infringement.
Greg M. Popowitz (gmp@assoulineberlowe.com)
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