When most people think of intellectual property (IP), they think of patents, copyrights, and trademarks. These three stand out because the United States government permits the registration of patents, copyrights, and trademarks on a national register. There are also private registries where, for example, a party can purchase and register a domain name. In addition, proprietary property exists in many other forms, such as trade secrets, business processes, or confidential information. It has a value that would be diminished if it were publicly known. Efforts can and should be taken to ensure that all forms of intellectual and proprietary property are protected against infringement.
The most straightforward type of protection is through the registration of IP on a national register. This is appropriate for patents, copyrights, and trademarks, with the United States Patent and Trademark Office (USPTO) being the register of choice. Many states also maintain registries, but registration with USPTO provides protection throughout the United States.
A patent is an exclusive right granted for an invention of a product or process that provides a new way of doing something. We typically think of patents issued for a piece of equipment or machinery, but they can also be secured to protect a process. Securing a patent is usually a complicated and extensive process best handled by an attorney with technical training and patent application experience.
A trademark can be a word, phrase, symbol or design, or a combination thereof, that identifies the source of goods or services. The term trademark is used to identify both trademarks and service marks. Many people believe that securing a trademark gives the mark owner an exclusive right to use the mark; this is not true. The granting of a trademark provides the owner an exclusive right to use the mark only when associated with the specific goods or services claimed with the mark’s registration. While a trademark application is less complicated than a patent application, the USPTO recommends that an attorney be utilized due to the complexities of the application process.
A copyright is a form of protection provided by U.S. law for original works of authorship. These include literary, dramatic, musical, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. Simply put, a copyright is a means of protecting an author’s work. A copyright is secured automatically when the work is created, fixed in a copy, or phonorecord for the first time. While copyrights do not require registration to secure ownership rights, registration is highly recommended to ensure that time, date, and ownership identity are accurately recorded. In addition, registration avails the copyright owner of potential statutory damages against an infringer that may not otherwise be available.
Other forms of IP, such as product and domain names, can be registered on non-government, private registers. There are multiple services that can assist with securing domain name registration, and each charges a fee, typically associated with the desirability of the specific name.
Trade Secrets and Other
Finally, IP that cannot be registered, yet may be extremely valuable, is often in the form of trade secrets or confidential information. An often-cited example is the formula for making Coca-Cola. The formula is a trade secret that is allegedly locked away in a safe that only a few select individuals can access. Confidential information such as product formulas and processes or even customer lists can be extremely valuable to a business. While currently, no national registration or database exists for trade secrets, a rightful owner whose trade secrets have been misappropriated without consent may be able to bring a claim for damages and, or injunctive relief.
Virtually every organization has IP worth protecting. It is important to know what IP you possess, how to protect it, and how to respond if it has been infringed upon or misappropriated.