Do I Have It? How Should I Protect It?
Published on November 15, 2014 | By Mark NeJame - Trial Attorney and Legal Analyst
We’ve all heard of intellectual property, but hey – do we really know what that stuff is? Do you own any? Is it protected? The answers to these questions can be complex, but an overview of the basics may trigger that “ah-ha” moment…perhaps just enough to be able to ask informed questions and begin the process of protecting, or at least know when you should.
Intellectual property is many things. It’s the intangibles. IP can be ideas, designs, formulas, codes, programs, databases, stories, articles, songs, slogans, symbols. We’ve all heard the buzzwords “copyright” “trademark” and “patent.” These are just some of the ways in which intellectual property is protected; these protections are readily available to you – just pick up the phone and call your attorney.
In legal world, a patent is what’s known as a negative right. If the United States Patent and Trademark Office grant your patent, the U.S. government is endowing you with the exclusive right to exclude others from making, using or selling your work. A patent is a form of protection that enables you to enter your product or idea (we will call it a widget) into the marketplace with some assurance third parties will not try to claim it as his or her own. There are three types of patents: utility (which covers function), design (which covers aesthetics) and plant (which covers plants of the botanical variety). In the wake of the medical marijuana boom, plant patents may be an up-and-coming topic.
Determining if your widget has commercial viability and creating a prototype are the most important first steps. Perhaps your widget is similar to many other widgets out there – if this is true, the United States Patent and Trademark Office obtaining meaningful protection may be difficult.
Once an application is filed and the widget is “patent pending,” there may be some back-and-forth (or patent prosecution) between your patent attorney and a patent examiner. Applications can take up to five years from filing to granting. Be careful not to wait too long to file for patent protection, but don’t file too soon, either. Under U.S. law, once you publicly disclose your invention, you have one year to submit your application or else you may lose the right altogether.
Registration of trademarks is governed by Florida Statutes, Chapter 495. Trademark law means providing the IP owner with exclusive right to use a symbol or mark that distinguishes the goods or products of one person from another. It could be a word, phrase, design or logo used to identify a company or product. A service mark is the same as a trademark, except it identifies the source of services. Trademarks are valuable assets, which generate repeat business due to recognition and familiarity.
Registering your trademark has the effect of preventing competitors from using a mark to which they are not entitled. The trademark owner has “good will” in the company; consumer goodwill is earned by a business over a period of time and has intrinsic value. Trademark law also protects consumers from deception. Not only can a trademark owner prevent someone from using its exact mark, but using marks that are “confusingly similar” to a trademark can be legally prohibited.
Unlike rights in a patent or a copyright, an owner’s rights in a trademark can last in perpetuity as long as the mark is in use and registration is regularly renewed.
Intellectual property such as original writings, music, designs and other works of expression are protected under federal copyright law, which gives the author exclusive rights to use the works. Copyright generally terminates seventy years after the author’s death.
It may be a familiar concept that “copyright is automatic when a work is created,” which is in a sense true, but the key to protecting and enforcing is copyright notice and registration.
Copyright notice, or © used in conjunction with the first year of publication and the name of the author/owner, puts the public on notice that the work is protected. Registration isn’t required, however if an author/owner wishes to bring an infringement lawsuit, registration is a necessary condition precedent. A copyright can be registered through the U.S. Copyright Office at the Library of Congress.
So to all the inventors, the entrepreneurs, the aspiring authors and artists, the internet has provided a global marketplace to share your talents with those across the world, but don’t underestimate the value of a good idea. Keep it under lock and key until your intellectual property is protected; you’ll never again utter the words “Hey! That was my idea…”
Orlando Trial Attorney and Legal Analyst