Intellectual Property and Your Business — What You Need to Know
Guest authored by Nina W. Gusmar
Q. I just started my own business. Should I be concerned about trademarking?
A. Yes. Savvy business owners know that intellectual property, such as trademarks, are a core, strategic asset. Business owners use trademarks to identify and distinguish their products and services from their competitors. Anything that identifies and distinguishes products and services in the marketplace can function as a trademark, such as a word, symbol, distinctive phrase, design, product shape, or even a sound or a smell. Undoubtedly, business owners looking to distinguish their product/service from others in the market should seek trademark protection. Only trademarks which are used in interstate or foreign commerce may be registered with the United States Patent and Trademark Office (USPTO). Other marks may qualify for state trademark protection.
Q. Do I need to worry about copyright or patents?
A. Possibly. Identifying existing or potential intellectual assets that have value in the competitive marketplace is essential to protecting and leveraging such assets. Copyrights, patents and trademarks are often confused. Although there may be some similarities among these types of intellectual property protection, they are different and serve different purposes. There may be occasions when multiple forms of protection are desired with respect to the same business endeavor.
Copyright law protects the way authors and artists express facts and ideas (but not the underlying facts and ideas). You can obtain copyright protection for a variety of original expressions, including art, sculpture, literature, music, songs, choreography, crafts, poetry, software, photography, movies, video games, videos, websites, architecture and graphics.
Patents protect novel and non-obvious inventions, processes or methods. There are three types of patents: utility patents (for new useful processes), design patents (for new ornamental designs for an article of manufacture) and plant patents (for new varieties of plants). A registered patent gives an inventor the right to exclude all others from making, using, importing, selling or offering to sell the invention for up to 20 years without the inventor’s permission.
Q. What could happen if I do not protect my intellectual property?
Just like other kinds of property, intellectual property needs to be protected from theft and misuse. If someone uses your same business name and does a lousy job, your reputation could be tarnished. Also, without protection, someone could steal your idea or business concept and start the same business in your geographic footprint.
Q. How much will it cost?
A. The registration processes for copyright, trademark and patents are entirely different. For copyright, the filing fee is small, the time to obtain registration is relatively short, and examination by the Copyright Office is limited to ensuring that the registration application is properly completed and suitable copies are attached. For trademark, the filing fee is more substantial, the time to obtain registration is much longer, and examination by the USPTO includes a substantive review of potentially conflicting marks which are found to be confusingly similar. The cost of your trademark work will depend on several factors, including how many types of goods and services your business offers. A fixed-fee price schedule can be provided upon request. Patents are significantly more costly to obtain. If you desire to patent an invention, we can refer you to an outside patent attorney who will assist you with the process.
Q. Do I still have rights to a name or ideas prior to filing with the USPTO? What happens if I do not file at all?
A. You do not have to register a trademark to have trademark rights. In the United States, trademark rights spring automatically by using the mark in connection with a good or service. However, registration does provide the business owner with additional benefits, such as evidence of ownership, presumption of validity, jurisdiction in federal court, the right to use the ® symbol next to the mark, the ability to preserve use of the mark throughout the U.S. against any users of a confusingly similar mark, and the right to acquire incontestability status after five years of continued use of the mark. Federal registration is also a prerequisite for bringing an infringement lawsuit under any federal trademark or copyright laws.
Q. Will a fictitious name filing with the state corporation’s bureau reserve my right to use a business name in a state?
A. A fictitious name is any assumed name, style or designation other than the proper name of the entity using such name. Registration of a fictitious name does not provide the business entity with exclusive use of the name. There are no trademark or ownership rights to a fictitious name, and the name is not protected against use by anyone else. As such, the same fictitious name can be used repetitively by different business entities.
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This blog post does not represent legal advice and merely touches on some of the issues that need to be addressed. No one should rely on the information provided within this post without discussing their individual situation with a lawyer.
