Whether it is a brand name, a new product, or a play or novel, we are oftentimes asked “how do I protect my idea?” The answer lies in Intellectual Property law. Intellectual Property is a collection of laws that protect intangible property such as inventions, artistic expressions, company secrets and/or brand identifiers. However, it is important to understand that each area of the law offers its own unique form of protection.
Patents: Patents give a patent holder the right to prevent others from making, using, selling or importing an invention. There are three basic types of patents – utility patents, design patents and plant patents. Utility patents cover new or improved processes, machines, manufactured articles, and other manufactured products such as chemical and biological formulations. On the other hand, design patents protect new and original ornamental designs for tangible goods and products. In addition, plant patents protect new plants that were invented or discovered and asexually reproduced. It is important to understand patent law is not supposed to protect an idea, but the manifestation of an idea, i.e. an invention. Patents are tools that inventors can use to monopolize their creations as part of a larger plan to turn the invention into a profitable enterprise.
Copyrights: Copyright law protects original, creative expressions such as books, plays, movies, songs, even architectural designs. Generally, a copyright holder has a bundle of rights including the right to control reproduction, distribution, performance, public display and the creation of derivative works. Generally copyright is said to exist when the author creates the work and fixes it in tangible form. Copyright exists independent of whether the work is registered with the U.S. Copyright Office; however, registration provides a number of benefits including statutory damages, the presumption of ownership and access to federal courts. In the case of copyrights, you must register your work with the U.S. Copyright Office prior to filing suit for copyright infringement.
Trademarks: A trademark is any device that is used by a person to identify and distinguish their goods and to indicate the source of those goods. A service mark is a trademark used to identify and distinguish services. Both are generally referred to as “marks” or “trademarks”. Marks can be words, names, symbols, sounds, and even scents and can be a business name and/or a brand name. Trademarks and service marks gain significance through their use in conjunction with offers to sell products and services to their intended customers. Trademark rights arise out of such use, but registering a trademark gives competitors notice that you are claiming a particular mark and prevents others from registering the same mark for the same type of goods and services. Trademarks can be registered at the federal level with the United States Patent and Trademark Office or at the state level through the North Carolina Secretary of State.
Trade Secrets: Trade secrets consist of business information that is valuable as a result of not being known to your competitors and that you have taken reasonable steps to keep secret. Trade secrets can be business methods, formulas or recipes, manufacturing techniques or any other information as long as it is valuable because your competitors cannot easily reproduce the information. This area of the law is designed to protect your investment of time, energy and money in developing information that is useful in running your business. Two points are worth noting here. First, trade secrets are planned – you should not wait until an employee leaves on bad terms to start worrying about them using information they learned while working for you to compete with you. Second, trade secrets must be subject to reasonable efforts to maintain secrecy which is to say there is no specific formula you can follow to make sure your information will be protected as a trade secret. Strategy and planning are the only practical ways to protect trade secrets.
It is important to have an understanding of how these areas of the law function if you want to use them to protect the fruits of your labor. In the end, each of these forms of protection should be considered a tool that can be used as part of a broader strategy to capitalize on the products of your intellectual endeavors. Please contact the firm to schedule a consultation to discuss your individual needs.