Own Your S&*%: Navigating the Complicated World of Intellectual Property

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Own Your S&*%: Navigating the Complicated World of Intellectual Property

August 7, 2019 | Education

The world of intellectual property is becoming ever more complicated; in our modern times, we have a vast, constantly-diversifying media landscape, a higher new-business rate than ever before, and big, difficult-to-solve global problems with inconceivable tech solutions on the horizon. 

In short, there are many more ideas in the market and a lot of ways to appropriate them. And, as business owners, our ideas are our biggest assets. Formally protecting our ideas is how we retain market share and show investors that we have a unique proposition worth safeguarding.

It will come as a surprise to literally no one that despite engaging in innovative activities at a similar rate to men, women are still less likely to hold intellectual property rights. According to the Institute for Women’s Policy Research, only 18.8 percent of all patents granted have at least one woman inventor listed, and The National Women’s Business Council reported although the number of women who successfully applied for a trademark has doubled since 1980, we still only own 33 percent of all registered trademarks. 

What are the different types of intellectual property?  

  • Trade Secrets
    Trade secrets is a secret device or technique used by a company in manufacturing its products. It’s less formal than a patent but more difficult to legally enforce. A trade secret could be the ingredients of a much-loved recipe, a software algorithm, or a formula for a winning product. It has no time restrictions. 
  • Trademarks
    A trademark is a symbol, word, or words legally registered or established by use as representing a company’s brand or product. It could be a logo, emblem, sign, stamp, or device. Unlike patents and copyrights, trademarks do not expire after a set number of years. 
  • Copyrights
    Copyright is a law that gives the original creator of a text–like a book, movie, image, or song–the right to say if and how other people can use is. This allows the person who made a piece of work the ability to sell it. Copyright protection lasts for the life of the author plus an additional 70 years.
  • Patents
    A patent is the core legal protection for inventors and their inventions. The purpose of a patent is to provide enough protection for the inventor to have the time to make, use, and sell their invention without the threat of competition. 

You might sometimes see trade secrets, trademarks, and copyright referred to as ‘soft intellectual property.’ That’s not a term entirely accepted in the legal profession, but is a more broad way of encompassing new ideas that aren’t covered by those expressions. 

How do I protect my creative work with copyright?

Your work will be copyrighted as soon as it’s “perceptible either directly or with the aid of a machine or device.” This means that copyright automatically exists from the moment the work is created and published. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. The Copyright Office has some more guidance on whether registration could be right for you. 

I’ve just spent a lot of money rebranding, should I trademark my new logo?

Like copyright, a trademark is ratified when the name, symbol, logo, or tagline appears in the public sphere. However, registering your name and logo with the Trademark Office gives you extra protection than common-law trademark rights. Registering means that no one else can steal a domain name that could be mistaken for your company, allows you to bring infringement lawsuits to federal court, and gives you more geographic control over where your brand can be protected. Registering a name is fairly straightforward, but a logo can be a bit more complicated. Anticipate a six-month wait to lock it in. Legal Zoom advises:

  1. Check that your logo is available
    To be registerable, your design must be unique. Start by searching the logo trademark database of the U.S. Patent and Trademark Attorney’s Office (USPTO).
  2. Obtain ownership
    If you want to own your logo beyond common-law rights, you can register a trademark for your logo with your Secretary of State where you’ll be using it. For country-wide ownership, you can file a trademark application with USPTO. You’ll need an attorney or specialized service.
  3. Set up a system for monitoring the logo’s use
    While you can do this casually yourself, there are special attorneys and services that can check to be sure no one else is using your logo.

Why should I get a patent? It’s so expensive–technology could move on by the time it comes through. 

Running a business is a series of cost/benefit analyses, and you don’t need us to tell you to allocate your funds where you think they’ll have the most impact. Patents generally cost anywhere from $8,000 to $16,000, depending on how complex the invention is, and can take 1 – 2 years to receive. However, Martensen IP Law suggests ten financial benefits to making space in your budget and workload for a patent: 

  • Stronger market positioning – your ability to prevent others from using your invention curbs competition and helps place you as the market leader
  • Protection of the investment you’ve already made – stop your competition from benefiting from the research and development you’ve invested in.
  • The right to license – you have the legal rights, which you can sell or license to make money
  • Better bargaining power – having a patent, or even a patent application, dramatically enhances your bargaining power from potential licensing partners or investors. 

Read the other six

When should a person go for a trade secret over a patent? 

If you have an exciting new product or method, you should always consult a professional IP lawyer for help keeping it under wraps and free from competition. But here’s a quick run-down of the main pros and cons of choosing a trade secret over a patent.

Pros

  • Trade secrets last forever
    We love a woman in it for the long game! If you need protection for over 20 years, a trade secret might be preferable to a patent
  • It’s more affordable
  • You might be able to create a marketing buzz around the mystery of your product
    Don’t you want to know KFC’s recipe or Google’s algorithm?

Cons

  • It only applies to unlawful breaches
    Competitors can reverse engineer your product, and there isn’t much protection for that
  • There’s nothing stopping a competitor filing a patent for a very similar product
  • Effort and care must be taken internally to retain the secret

What should I do if someone’s using my intellectual property?

You should first contact the person who has infringed on your intellectual property. You or your intellectual property lawyer can send a cease and desist letter, requesting that the person or brand stop using your work. Send the message by certified mail, including: 

  • Your name and address
  • The type of infringement 
  • Information about the work that has been infringed
  • What you want to happen next, and a timeframe for action
  • A return receipt request. 

If the infringer persists, you may be able to seek damages. You can file a civil case. Apart from an injunction of the theft, you might also be able to claim for payment for your losses, the infringer’s profits, attorneys’ fees, and punitive damages. 

Some cases of intellectual property theft can be handled in federal court if you have a registered trademark. Consult a lawyer for advice.

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