Regardless of your type of business, intellectual property can be one of your most valuable assets. Intellectual property is any unique creation and expression of the mind. Whether your business is technology-, consumer- or professional service-based, protecting your intellectual property, such as trade secrets, can be key factors to your success. For that reason, investing in the protection of your intellectual property is an important part of your business operation. Failure to police and defend your intellectual property rights could ultimately result in a loss of financial gain. Certain laws have been put into place to help protect your intellectual property, such as trade dress, copyrights, patents and trademarks.
Trade secrets include things such as formulas, practices, processes, designs, instruments, patterns, or a compilation of information that is not generally known or easily attained. Using trade secrets, businesses obtain an economic advantage over competition. In order to have a trade secret, companies must take steps to protect the secrecy of their information. Exposing a trade secret means competitors can have access to that knowledge, which could impair that company’s market dominance or market position.
One of the easiest and most basic steps your company can take to protect your trade secrets is to require employees, contractors, and any companies that may be exposed to your trade secrets to execute confidentiality or non-disclosure agreements. Failure to enter into these types of agreements may result in the exposure of your trade secrets and, in effect, the waiver of trade secret protection.
Trade dress refers to the distinctive look of a product or its packaging. Trade dress law is the legal protection for trade dress protected by statute. In order for trade dress to be considered protected under trade dress law, the protectable features must clearly identify a product, much like the Tiffany blue box. The features must also be nonfunctional, not affecting the product’s cost, quality or a manufacturer’s ability to effectively compete in a non-reputational way. The public policy behind trade dress is to protect innocent consumers from purchasing an inferior good or service because of confusingly similar trade dress to a trusted brand.
Copyright laws protect a creative expression fixed in a tangible medium. Copyrights do not protect ideas, but may protect the expression of an idea. A work is protected by copyright the moment it is created and fixed in a tangible form. While not mandatory, copyrights may be registered with the federal government to receive the highest protection possible. The safest course of action is to file for copyright protection to guarantee the highest protection of the work and to save time in the event that you would need to bring a lawsuit for infringement.
A patent is a set of exclusive rights granted by a state to an inventor for a fixed period of time in exchange for a disclosure of an invention. The rights granted to a patentee exclude others from making, using, selling or importing the invention. Obtaining a patent can help you protect your unique invention from infringement by a party unrelated to your business.
A trademark is a word, group of words or design that indicates the origin of goods or services. State and federal statutes protect trademarks in a special area of law called trademark law. If your business intends to use a trademark, it is a good idea to file an “Intent to Use” application to secure your trademark. Filing such an application will help protect your trademark ideas against infringement from competition. In contrast, if your business already uses a mark, filing a “use based” application will protect the intellectual property you already use as part of branding your business.
The success of your business may rely heavily on a technology your company created, or even on a secret family recipe that has been passed down through several generations. Whatever your company’s intellectual property is, protecting it can be vital to maintaining your unique share of the marketplace. Taking these basic steps to ensure your intellectual property remains yours may help you avoid litigation, or in the event that litigation arises, may assist when seeking an injunction or protective action in the interest of your business.
