By Lindsay J. Nakagawa, Attorney
Your greatest business assets may be the ones you most often overlook. Intangible assets like copyrights, trademarks, patents and other intellectual property often hold more value than tangible assets such as machinery and inventory. Thus, protecting these assets is essential to your business. But, what are your intangible assets, and how can you protect them?
A copyright is a legal right of ownership in an original creative expression. Such creative expression can be literary, dramatic, musical, graphic, or visual. A copyright grants the owner the exclusive right to sell, reproduce, distribute, display, create derivatives of, and publicly perform the work. Copyright protection of the work lasts for the duration of the author’s life, and an additional 70 years. Pseudonymous, anonymous, and works made for hire will generally be protected for 95 years after publication or 120 years after creation, whichever is shorter. Copyrightable materials include books, articles, poems and other written material; music and other audio compositions; motion pictures, television shows and other graphic or visual works; and paintings, sculptures and other artistic expression. Even the selection and arrangement of data in a database, or the layout and design of your website may constitute copyrightable material.
To protect your original creative works, first add a copyright notice to such works, where possible, to provide notice to the public of your copyright. A copyright notice should include the copyright symbol © or the word “Copyright”, the year of creation and the name of the copyright owner. Some notices identify that the owner reserves all rights. However, such reservation of rights is inherent in copyright ownership and thus is unnecessary. For example, the copyright notice for this article would appear as follows:
© 2016 Lotus Law Center, APC
Next, register the work with the Copyright Office by submitting an application and the appropriate fee. Copyright protection is inherent in creative works, regardless of whether such works have been registered with the United States Copyright Office. You always hold the common law copyright rights to your original works. However, registering a work with the Copyright Office provides numerous benefits otherwise unavailable, including (i) a legal presumption of validity and ownership in the work; (ii) constructive notice to the public of your ownership in the work; and (iii) the availability of statutory damages without having to prove actual harm in the event of an infringement lawsuit. Every business owns some copyrightable material. Misappropriation of your original works could have a substantial effect on your business. Talk to your attorney about what material you should copyright.
A trademark is a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods or services of one party from those of other parties. An example of a well-known trademark is the brand Nike, or the Nike “swoosh” logo. A trademark identifies a brand of goods, while “servicemark” is sometimes used to refer to a brand of services. However, for the sake of this post, we will use “trademark” to refer to goods or services.
A trademark represents the goodwill of a business. Common law rights to your mark arise from use of the mark in connection with the public sale of goods or services. However, those rights are limited to the geographic region in which the mark is used. Registering your mark with the United States Patent and Trademark Office provides additional benefits, including the possibility of recovering statutory or treble damages prevent the registration of confusingly similar marks, and in certain cases, providing actual notice of your use of the mark. Trademark protection generally lasts as long as the mark is used in commerce, with certain renewal requirements. Federal registration for a trademark is made by submitting an application, a sample of your use of the mark, and the appropriate fee to the USPTO.
To protect your mark, first determine if your mark is already in use by another party. If not, affix the common law trademark “™” symbol to your mark. Next, file an application with the USPTO for federal registration of your mark. Once your mark is approved, you may replace the ™ symbol on your mark with the ® symbol, indicating your mark is a registered trademark.
As a trademark owner, it is your responsibility to monitor use of your mark, or confusingly similar marks, and police any infringing activity. Trademark infringement can have a drastic effect on the value of your mark and the goodwill of your business.
A patent is an exclusive ownership right in an invention granted by the United States Patent and Trademark Office. A patent grants the patent holder the right to exclude others from making, selling, using or importing the invention without authorization of the patent holder. In order to receive approval by the USPTO, an invention must be new, useful and non-obvious, and must describe a process, machine, manufacture or composition of matter. Patents are not granted for mere ideas, but rather for the execution of the idea. Well known patents include the light bulb, electric motor, and, believe it or not, sliced bread.
The term of a patent is 20 years from the application date. With the adoption of the America Invents Act in 2011, the United States switched to a “first inventor to file” system, meaning the right to a patent is granted to the first person to file an application with the USPTO. Inventors that fail to file a patent application within one year of disclosing the invention to the public risk losing the rights to their invention. Therefore, inventors of a patentable process or machine are encouraged to file for a patent prior to public release of the invention or any machines or processes that incorporate the invention.
As a patent, by definition, indicates registration with a governing body, common law patent rights do not exist. To protect your invention, you must register for a patent with the USPTO. Contact a patent attorney for assistance with the process.
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