When it comes to running an online business, few things can get as overwhelming as legal.
And as a trademark attorney, I see a huge source of confusion in the different types of intellectual property.
“Do I have to register a trademark in order to have rights to use it?”
“Do I automatically have copyright for materials I produce?”
“Are patents important for business owners?”
There are a lot of valid questions surrounding the BIG 3: Trademarks, Copyrights, and Patents.
And because these are all available to protect your various business assets, it can literally pay to have at least a basic understanding of each type of intellectual property and how they can potentially serve you.
**Real quick before we jump in:
Everything I share is legal education and information. It’s not business, financial, or legal advice, and it doesn’t create an attorney-client relationship between us.
Please chat with an attorney in your area to make sure you’re protecting your business.**
What is Intellectual Property?
Intellectual Property (IP) is an umbrella term defined as “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.”
This includes the Big 3.
- Trademarks, which act as identifiers for specific products or services;
- Copyrights, which protect original works of authorship, and;
- Patents, which protect innovations and inventions.
While all three areas provide unique protections for different types of intellectual creations, they all share a common thread:
Protecting the creations of a person’s individual ownership.
Trademark: The legal protection for brand identifiers
A trademark is protection for a word, phrase, graphic (or some combination of these things) that identifies a brand in the marketplace so consumers aren’t confused by businesses that sell similar goods or services.
You automatically have a trademark from the time you start using your word, phrase, graphic, etc., but that protection is very limited–and won’t prevent you from being on the receiving end of another brand’s cease-and-desist letter if they also want to use the same mark.
Unless, of course, you apply for federal registration.
But before you apply for registration, you’ll want to conduct a thorough trademark search.
You can start the search yourself by browsing the Secretary of State database for corporations and trade names, social media sites (including LinkedIn), Google, domain hosting sites, and the U.S. Patent and Trademark Office (USPTO) database.
An attorney will have additional insights into anything that may cause a likelihood of confusion (a common reason for registration rejection).
While it costs more to have an IP attorney conduct your TM search, if you opt to skip this step and file without it, no one is going to refund your fees when your trademark application gets rejected because a proper search was not done to identify a conflict.
Federal rights for a successfully registered trademark are extensive and provide 10 years of statutory protection, which you can continue to renew in perpetuity so long as you stay on top of your filings.
And, while you can use the ™ symbol from the beginning as notice that you intend to enforce trademark rights, you can only use the much more powerful ® once you actually have a registered trademark.
Copyrights: The legal protection for original works
Copyrights are legal protection for an original work of authorship fixed in any tangible medium of expression.
This means that copyright laws apply to everything from your blog posts to e-course materials to your photographs and your website copy at the moment of their creation.
What copyright laws do not protect are ideas.
There has to be some physical act of expressing your idea for copyright protections to apply.
Despite the fact that copyright law is extremely fact-specific in the United States, copyright owners have the following 6 exclusive rights to their work under the Copyright Act of 1976:
- The right to make reproductions or copies of the copyrighted work;
- The right to prepare derivative works based upon the copyrighted work;
- The right to sell or transfer the copyrighted work (including commercial licensing);
- The right to publicly perform the copyrighted work;
- The right to publicly display the copyrighted work; and
- The right to publicly perform the work by audio transmission (in the case of sound recordings).
Also important to note–copyright law in the United States is an opt-out system.
This means that once an idea is physically manifested, copyright rights apply without requiring you to attach any formalities or magic words to it.
Previously you were required to include a copyright notice (i.e., © 2023, [Your Company Name]) for copyright protection. Now it’s just a recommended practice to put people on notice that you’re claiming your copyright rights…which is why you see it everywhere.
And while copyright rights are automatic, it’s still a good idea to register your work with the United States Copyright Office to protect yourself from copycats.
Registration is also required to enforce your copyright rights and obtain things like statutory attorney’s fees and statutory damages.
Generally, copyright rights last for the life of the author plus 70 years, and once those rights expire, the work enters into public domain.
Works are considered “public domain” if they are not protected by intellectual property laws. Those works are free for anyone to use without needing permission. (Think royalty-free stock images from websites like Unsplash.)
Patent: The legal protection for inventions and designs
A patent provides you with the right to exclude others from making, using, offering for sale, or selling any products that embody the patented invention in the United States, or from importing such products into the U.S.
But, as with copyright law, an idea is not patentable.
In fact, a patent requires a written description.
And not every invention or design will be approved. To qualify for a patent, an invention must be useful, new, and nonobvious to a person having ordinary skills in the area of technology related to the invention.
There are 3 types of patents:
- Utility patents
For a new and useful process, machine, article of manufacture, composition of matter, or new and useful improvement thereof.
Examples: Business processes, software, new makeup formulation
- Design patents
For new, original, and ornamental designs for an article of manufacture.
- Plant patents
For invented, discovered or asexually reproduced plants.
Example: Hybrid rose bush
NOTE: An invention cannot be patented if it was in public use or for sale in the U.S. more than 1 year before the patent application was filed.
You may want to explore a provisional patent if you think you have a patentable concept (these are simplified applications that are valid for 12 months following the filing date).
A provisional patent allows you to use the term “Patent Pending.”
And, if a patent is on your radar, it’s important to know that only attorneys registered to practice before the U.S. Patent and Trademark Office (USPTO) are permitted to represent inventors.
Using the different types of Intellectual Property in your business
With a basic understanding of the 3 main different types of Intellectual Property, you can make an informed decision about which one(s) you need to protect your business assets.
Once your legal rights for IP are secured, you can focus on growing your business and stop looking over your shoulder, worried you’ll eventually be forced to rebrand or that your blood, sweat, and tears will be exposed to exploitation or fraud.
And remember that you don’t have to do any of this alone.
That’s what IP attorneys are for.
You can contact Nicole Cheri Oden Law for your trademark consultation.
And if you’re ready to learn even more about protecting your business, join the list of exclusive listeners of the Uncomplicating Trademarks podcast.