Protect Your Intellectual Property

Nina L. Kaufman, Esq.

Nina L. Kaufman, Esq.

Nina L. Kaufman, Esq., owner of Ask The Business Lawyer, is an award-winning business attorney, speaker, and Entrepreneur Magazine online contributor. She saves consulting and professional services companies time, money, and aggravation by serving as their outsourced legal counsel.

Posted on September 21, 2014 in IP & Social Media

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Here are 5 ways to prevent others from making money off your products or your image.

I’m often asked, “When’s the best time to protect my intellectual property?” The answer (and timing) are the same as they are for installing a burglar alarm: “Right before someone wants to steal your stuff.”

Intellectual property,” or things created as a byproduct of your intellect, can become your largest single asset category, worth millions of dollars . . . if handled and protected carefully. So let’s take a quick look at its different forms and the ways you can protect them from others’ prying eyes (and hands).

  1. Patent. Have you invented something new, useful and non-obvious? The U.S. Patent and Trademark Office grants you the exclusive right to make, use or sell an invention for a specified period. This means that as a patent holder, you can stop third parties from making, using or selling the invention for a certain number of years (depending on the type of invention). Kinds of patents include combination patents, design patents, process patents and utility patents.A lot of money can be made during that period of exclusivity (about 20 years). Just look at the way generic drugs flood the market after a patent expires. However, you’ll have to disclose your detailed plans for how the invention works. If your competitive edge depends on keeping this information secret, consider trade secret protection instead (see No. 5).
  2. Copyright. Have you written an article, created a video or made a podcast? You’ll want copyright protection. Copyright protects original works of authorship, provided they are “fixed” (expressed in writing, recorded or otherwise captured). In other words, you can’t protect an idea floating about in the ether. But once you have created the work, you have the exclusive right to reproduce, adapt, distribute, perform and display it.However, copyright covers only the way you expressed a particular idea, not the subject matter overall. Write all you like about home-based businesses–you can’t prevent anyone else from writing on the topic. Consider filing a copy of your work with the U.S. Copyright Office, or you may have a difficult time bringing a lawsuit should you learn that someone ripped off your magnum opus.
  3. Trademark/Servicemark. Got a logo or tagline you want to use? Look into trademark protection. Trademarks help distinguish your tangible products from others’ products. They also aim to protect consumers from deception by other businesses that use the same or a confusingly similar “mark.” Consider a trademark as a commercial substitute for your signature. Servicemarks provide the same protection for intangible things such as services.To receive federal trademark (or servicemark) protection, a trademark must be:
  • Distinctive rather than merely descriptive.
  • Affixed to a product (or used with a service) that is being sold in the marketplace (interstate commerce)
  • Registered with the U.S. Patent and Trademark Office.
  1. Trade Dress. Love your 100 percent recycled content packaging? You may want to protect your “trade dress” (a particular kind of trademark). It covers the overall appearance and image of a product (through the packaging) or a commercial enterprise (design and décor). Think of the Tiffany blue box or the bakery areas in a Fuddruckers restaurant.
  2. Trade Secret. Got a secret sauce that enhances all your food products? If you don’t want the recipe blabbed all over the place, protect it as a trade secret. However, this information needs to have an economic value from not being generally known (or readily ascertainable), and you need to have taken reasonable efforts to maintain its secrecy. You can protect this information by using confidentiality/non-disclosure agreements with anyone involved in the sauce-making process. That includes vendors who help develop the product, employees and investors. This is your “top secret” information. Handle it like the CIA does: Make sure that the amount and timing of disclosure are on a need-to-know basis only.

If you’re investing money in your intellectual property and want it to distinguish your business, protecting it should not be a do-it-yourself project. There are too many registration rules, renewal regulations and enforcement obligations that come with launching it in the first place.

Also, many intellectual property laws give the right to the person who created the work–so you want to be sure that those rights are signed over to you in a way that’s enforceable. This area of law is highly nuanced, so don’t rely on your sister-in-law who’s an estate lawyer. Speak to an attorney who specializes in intellectual property protection so that you can maximize the value of your precious assets.

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