Protecting Your Intellectual Property
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There are four main areas of intellectual property that any company or individual must protect because it is so easy to do so and can save you a great deal of money and time on litigation.
Copyrights
Copyrights are defined as tangible form of expression. Copyright law requires that there be a modicum of creativity and that such creation be a in a tangible medium such as recording, paper, online. As soon as such work is created, you have copyrights. However, it is important that you register such work with the Copyright office in order to have a broader scope of protection and to get higher statutory damages in the event someone infringes on your work.
In order for the party to infringe on your work, the work has to be protectable, and there must be substantial similarity between the two works. Substantial similarity is a term of art that is defined by case law as to how in each specific case, the court determined there to be such similarity to constitute an infringement. The defendant may still win if they can succeed in proving a defense.
What to do to protect your work?
1. Register it.
2. Sign the right agreements with people involved in the creation process to assure you own copyrights to the material.
Trademarks
A trademark is anything you use to identify and distinguish your goods and services from competitive goods and services. For example, McDonald's name and golden arches is a clear identification of McDonald's that gives it a competitive edge. One of the ways to assure protection against others using your mark is to establish priority in use. You can do this by registering your mark with the USPTO. That way everyone is put on notice that you own the trademark. You can also allege a higher damages in the event of infringement by registering your mark. Finally, in cases of concurrent use of the mark by two holders, the one who has registered wins.
However, what constitutes a trademark can be tricky. Generic terms are not protectable. Merely suggestive of a quality or characteristic maybe protectable (i.e., Sure Deodorant is protectable.) Descriptive terms are protectable only if the public uses them to distinguish your goods or services. The most protectable trademark is fanciful or arbitrary in that it has no relationship to the product or services. For example, Apple computers, Exxon gasoline, or Camel cigarettes are highly protectable.
For an infringement claim to prevail, the plaintiff must prove the following: 1) the mark is protectable, 2) the mark has a priority, 3) defendant's mark is likely to confuse the public into thinking defendant's goods or services are affiliated with plaintiff. However, the defendant may nevertheless win by proving a defense.
What to do to protect your work?
1. Register it.
2. Assure proper agreements are in placed to assure you own the trademarks.
Patents
An invention only needs to be novel, useful, and non-obvious to be patentable.
What to do to protect your patents?
Businesses should have all knowledge employees assign all inventions to the business. Otherwise, employee owns the invention unless he is hired to invent.
Licensing agreements allow companies to make profits off the patents.
Trade Secrets
Trade secret is is a formula, practice, instrument, pattern, design, process, or compilation of data and information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers. Trade secrets are often violated, when an employee leaves the company and starts using the company trade secrets for a business venture that directly competes with the former business.
In order to prevail in a trade secret case, plaintiff must timely prove (1) a trade secret existed, (2) defendant learned it through a confidential relationship or improper means, (3) defendant used or disclosed or will inevitably disclose it without plaintiff’s authorization, and (4) defendant profited from or plaintiff was damaged by defendant’s use or disclosure.
What to do to protect your company's trade secrets?
Even though there is an implied agreement that trade secrets are not to be disclosed by employees, having proper non competition and confidential agreements assures that this promise is honored.
Conclusion
Trademarks: Make sure your proposed mark is protectable and not owned by anyone else. Protect valuable marks with a federal trademark registration.
Copyrights: Get the author's written agreement that you own the copyright. Put a copyright notice on everything that might be copyrightable. Register if it might be important.
Patents: Get everyone's written agreement that you own all patent rights. Quickly file inexpensive provisional applications.
Trade Secrets: Get everyone's written agreement that you own everything and that they should keep your information confidential.
ABOUT THE AUTHOR: Dorisa Shahmirzai, Esq.
IP Law Click, located in Glendale, California, is a team of young entertainment industry professionals who believe in innovation providing clients with the best possible service. We have extensive experience in the areas of intellectual property law, entertainment, and corporate law.
Copyright IP Law Click, PC
More information about IP Law Click, PC
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
Copyrights are defined as tangible form of expression. Copyright law requires that there be a modicum of creativity and that such creation be a in a tangible medium such as recording, paper, online. As soon as such work is created, you have copyrights. However, it is important that you register such work with the Copyright office in order to have a broader scope of protection and to get higher statutory damages in the event someone infringes on your work.
In order for the party to infringe on your work, the work has to be protectable, and there must be substantial similarity between the two works. Substantial similarity is a term of art that is defined by case law as to how in each specific case, the court determined there to be such similarity to constitute an infringement. The defendant may still win if they can succeed in proving a defense.
What to do to protect your work?
1. Register it.
2. Sign the right agreements with people involved in the creation process to assure you own copyrights to the material.
Trademarks
A trademark is anything you use to identify and distinguish your goods and services from competitive goods and services. For example, McDonald's name and golden arches is a clear identification of McDonald's that gives it a competitive edge. One of the ways to assure protection against others using your mark is to establish priority in use. You can do this by registering your mark with the USPTO. That way everyone is put on notice that you own the trademark. You can also allege a higher damages in the event of infringement by registering your mark. Finally, in cases of concurrent use of the mark by two holders, the one who has registered wins.
However, what constitutes a trademark can be tricky. Generic terms are not protectable. Merely suggestive of a quality or characteristic maybe protectable (i.e., Sure Deodorant is protectable.) Descriptive terms are protectable only if the public uses them to distinguish your goods or services. The most protectable trademark is fanciful or arbitrary in that it has no relationship to the product or services. For example, Apple computers, Exxon gasoline, or Camel cigarettes are highly protectable.
For an infringement claim to prevail, the plaintiff must prove the following: 1) the mark is protectable, 2) the mark has a priority, 3) defendant's mark is likely to confuse the public into thinking defendant's goods or services are affiliated with plaintiff. However, the defendant may nevertheless win by proving a defense.
What to do to protect your work?
1. Register it.
2. Assure proper agreements are in placed to assure you own the trademarks.
Patents
An invention only needs to be novel, useful, and non-obvious to be patentable.
What to do to protect your patents?
Businesses should have all knowledge employees assign all inventions to the business. Otherwise, employee owns the invention unless he is hired to invent.
Licensing agreements allow companies to make profits off the patents.
Trade Secrets
Trade secret is is a formula, practice, instrument, pattern, design, process, or compilation of data and information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers. Trade secrets are often violated, when an employee leaves the company and starts using the company trade secrets for a business venture that directly competes with the former business.
In order to prevail in a trade secret case, plaintiff must timely prove (1) a trade secret existed, (2) defendant learned it through a confidential relationship or improper means, (3) defendant used or disclosed or will inevitably disclose it without plaintiff’s authorization, and (4) defendant profited from or plaintiff was damaged by defendant’s use or disclosure.
What to do to protect your company's trade secrets?
Even though there is an implied agreement that trade secrets are not to be disclosed by employees, having proper non competition and confidential agreements assures that this promise is honored.
Conclusion
Trademarks: Make sure your proposed mark is protectable and not owned by anyone else. Protect valuable marks with a federal trademark registration.
Copyrights: Get the author's written agreement that you own the copyright. Put a copyright notice on everything that might be copyrightable. Register if it might be important.
Patents: Get everyone's written agreement that you own all patent rights. Quickly file inexpensive provisional applications.
Trade Secrets: Get everyone's written agreement that you own everything and that they should keep your information confidential.
ABOUT THE AUTHOR: Dorisa Shahmirzai, Esq.
IP Law Click, located in Glendale, California, is a team of young entertainment industry professionals who believe in innovation providing clients with the best possible service. We have extensive experience in the areas of intellectual property law, entertainment, and corporate law.
Copyright IP Law Click, PC
More information about IP Law Click, PC
View all articles published by IP Law Click, PC
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
