Intellectual Property Basics

Businesses in Florida own many different types of assets including real property, personal property and intellectual property. It is commonly understood that real property includes real estate and anything attached to it, such as an office building or residential home. Personal property includes all other physical assets such as equipment, desks and inventory. However, many people are unclear what constitutes intellectual property.

Intellectual property is defined by Black’s Law Dictionary as “a category of intangible rights protecting commercially valuable products of human intellect.” Intellectual property includes ownership rights over names, logos, works of art, literary works, ideas, inventions, computer code, and more. Just as you can own real or personal property, you can also own intellectual property. These ownership rights are protected by federal and state law which were designed to help the creation and use of ideas in our economy. These laws separate intellectual property into copyrights, trademarks, patents and trade secrets, and understanding which one applies to your property is the first step to protecting it.

What is a Copyright?

A copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. If you write a book, for example, you would apply for a copyright to protect your rights to the content of the book. Copyright protection is provided by Title 17 of the United States Code and all copyrights are registered in the Copyright Office of the Library of Congress. A copyright gives the owner the exclusive right to reproduce and distribute the protected work. This includes displaying art or performing musical or literary works in public. A more recent development is the protection of computer software with copyrights.

Copyrighted material is often marked with the © symbol. The term of copyright protection depends on several factors including when or if the work has been published. As a general rule, if the work was created after January 1, 1978, the copyright is valid for the life of the author plus an additional seventy years.

What is a Trademark?

A trademark protects a word, phrase, symbol, or design that identifies and distinguishes the source of the goods of one party from those of another. Trademarks are used to create brand recognition. You likely recognize famous trademarks such as Nike’s “swoosh” or Apple computer’s apple with the bite out of it. Trademarks must be distinctive and the applicable laws are designed to prevent other businesses from using a similar mark that might confuse consumers.

A service mark is a similar mark that identifies and distinguishes the source of a service rather than a good. The Mastercard logo is an example of a service mark. Because trademarks and service marks are treated essentially the same procedurally and legally, the generic term “trademark” is commonly used to refer to both types of mark.

Trademarks are created by registering them with the United States Patent and Trademark Office (the “USPTO”). The owner must file an application which is either accepted or rejected by an examiner based upon certain criteria. Trademarks and service marks are marked with a “TM” or “SM”, respectively, while their application with the USPTO is pending, and a “®” after the mark that has been accepted and registered. Trademark protection is valid for an initial term of five years, at which time you must show continued use to extend the term.

What is a Patent?

A patent provides protection for a new invention or innovation. Specifically, a new product, mechanical or industrial process or computer program can be protected with a patent. Owners must submit an application with the USPTO who determines whether the invention is original and novel. If accepted, others are precluded from using, making or selling the protected item without the express consent of the owner. Patents are valid for seventeen years from the date of grant or twenty years from the date of filing the application, whichever is longer.

What is a Trade Secret?

A trade secret is information, including a formula, pattern, compilation, program, device, method or technique that is not known by the public and provides a competitive advantage as defined in Chapter 688 of the Florida Statutes, commonly referred to as the Uniform Trade Secrets Act. Some examples of trade secrets include a company’s marketing plan or list of clients; a recipe for a popular product or plans for a product under development; computer software being developed or used by a company; or how a certain manufacturing process works.

Basically, any information may be considered a trade secret if the disclosure of the information would take away the competitive advantage of the company or business that created the proprietary information.

Trade secrets do not have to be registered. Instead, the law protects the unauthorized taking or dissemination of any information that falls within the definition of a trade secret. Trade secrets are commonly protected by contracts such as non-disclosure agreements.

Recommendations

As a business owner, you have undoubtedly invested a considerable amount of time, effort and resources into establishing your business. Building your brand and developing a competitive advantage is critical. Protecting your brand and your advantage is equally important.

LegalStandard.com.com strongly recommends that our clients consult with one of our experienced attorneys to make sure their intellectual property is adequately protected. We offer Branding, Trademark and Infringement conferences for $295.00. We also offer trademark packages with a trademark search and analysis for $1,050.00 and a trademark application for $2,495.00.