There are three main types of intellectual property:

  1. A trademark is anything that represents a brand. Words, logos, and slogans are common trademarks.
  2. A copyright protects works of authorship, including novels, poetry, art, and music.
  3. A patent protects aspects of an invention, which can include both functionality and design.

1. Trademarks

So what is a trademark? A trademark is anything that represents your brand to consumers.  The most common trademarks are business and product names, logos, and slogans, but non-traditional trademarks can be registered as well.  Anything from a color scheme to a sound or even a smell can become a registered trademark if it represents your business in the marketplace.

A strong federal trademark will help to build brand recognition and protect you against infringement, both intentional and unintentional.  While you will have some common law protections simply by using your trademark, it’s important to know that these protections are extremely limited.  For instance, they will only protect you against disputes that arise in the small geographic region where your business is located.  It will also be more challenging to fight infringement in legal proceedings.

To obtain full protection for your trademark, you will need to register with the United States Patent and Trademark Office, or USPTO.  The date you apply will become your priority date, which means anyone looking to file a similar mark after that date will likely be rejected.  If you find possible infringement, work with your attorney to take legal action.  Often, a cease-and-desist letter is all that is needed to put the infringer on notice, but in some situations, more formal legal proceedings are needed.  As long as you continue to use your mark and meet renewal deadlines, a registered trademark will never expire! As a trademark owner, you should be aware of the renewal requirements on your trademark registration.

2. Copyrights

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A copyright protects a work of authorship.  Creative works like books, paintings, plays, photographs, and even websites can receive copyright protection.  While trademarks protect owners against any mark that may be confusingly similar, copyright protections are limited to exact works of authorship or very close replicas.  Ideas and concepts themselves are not protected, but rather how they are expressed.  For example, the concept of painting water lilies is not protected, but Claude Monet’s famous interpretation is.

As a copyright owner, you have exclusive rights to your work.  You have the sole right to reproduce the work, distribute it, or present it in public, through display or performance.  You can authorize the transfer of these rights for any reason, but unauthorized use would be a violation of your copyright protection.  Copyright protections are given to your work the moment you create it.  While you aren’t required to register your copyright to receive these protections, they are much harder to enforce without a copyright registration.  Work with your attorney to determine what aspects of your business need copyright protections, and register your work with the U.S. Copyright Office.

At Gerben Law Firm, our attorneys offer a full range of copyright services:

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3. Patents

A patent can protect an invention.  To receive patent protection, an invention must be novel, useful, and non-obvious.  The USPTO recognizes three categories of patents:

  • Utility patents protect how an invention is made or how an invention works. How a Bluetooth speaker amplifies sound, for instance, may be eligible for a utility patent.
  • Design patents protect the unique non-functional design or appearance of an invention. The sleek design of a new smartphone or Bluetooth speaker may be protected by a design patent.
  • Plant patents protect new asexually reproduced plant varieties where part of the plant, other than the seeds, is used to generate a new plant, e.g., through grafting or layering. As an example, the honeycrisp apple tree is the subject of a plant patent.

Like trademarks, patents are examined and granted by the USPTO.  When applying for a U.S. utility patent, there are two options, at least initially – a provisional patent application or a non-provisional patent application.  A provisional patent application, if filed, will not be examined by the USPTO, but instead will serve as a placeholder for one year, at which time the application will automatically expire.  Provisional patent applications allow inventors to enter the queue with a priority date as they continue to fine-tune their product.  However, inventors who file a provisional patent application first will need to file a non-provisional patent application within one year of the provisional filing date in order to continue with the examination.

Standard, non-provisional patent applications will be assigned to a patent examiner at the USPTO who will conduct a patent search and examine the application for patentability, e.g., whether the invention is useful, novel, and non-obvious.

Work with an experienced patent attorney, and file a patent application with the USPTO at your earliest opportunity.  If issued, the term of a patent is 20 years from the earliest filing date (for a utility or plant patent) or 15 years from the issue date (for a design patent), subject to other potential criteria, such as patent term extensions, terminal disclaimers, etc.

Protect Your Intellectual Property

You’ve worked hard to create your intellectual property.  Whether you’ve written a screenplay, developed a new skincare product, or opened a coffee shop, you likely have intellectual property that needs protection from infringement.  Work with an experienced IP attorney to determine what aspects of your business need protection, and then register them with the proper office.  For trademarks and patents, submit an application to the USPTO.  Copyright registration is granted by the Copyright Office.  Once you’ve registered your intellectual property, monitor its use and take immediate action if a potential infringement is found.  Contact an intellectual property attorney today to learn more about how to protect your trademark, copyright, or patent.