3 Intellectual Property Tips for New & Emerging Businesses & Creatives

By: Attorney India Rios 

1. IDENTIFY YOUR INTELLECTUAL PROPERTY;

2. SECURE THE BRAND NAME & LOGO; AND

3. MAKE ALL COLLABORATORS ASSIGN THEIR IP RIGHTS TO THE COMPANY.

1. IDENTIFY YOUR INTELLECTUAL PROPERTY

There are three types of intellectual property (1) Patents, (2) Copyrights, and (3) Trademarks. 

Patents 

            Patents protect new inventions or modifications to existing inventions by granting the inventor a limited monopoly. Most patent registrations will last for 20 years from the date of the application.  The United States Patent and Trademark Office ("USPTO") processes all US patent applications. Patent registration is authorized for new, useful, and non-obvious things, including processes, machines, articles of manufacture, the composition of matter, and the improvement of any of the items mentioned above.

Copyright

            Copyright protection is granted for original works of authorship that are in a fixed tangible form of expression. Copyright protection may be used for paintings, books, movies, music, and more. The bar for copyright registration is pretty low. Works are original when (1) a human creates them, and (2) they possess a minimum degree of creativity. Copyright protection provides the copyright owner with the following rights:

            1. Reproduce copies of the work;

            2. Create derivative works;

            3. Transfer ownership by lease, license, or sale;

            4. Perform the work publicly; and

            5. Display the work publicly.

            More importantly, a valid copyright registration will allow the owner the right to restrict or prohibit another's use of the work. 

Trademark

            Simply put, a trademark can be anything used as a source designator in the marketplace. The official definition is "any word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others." The trademark regime's primary purpose is to protect consumers from confusion. Trademark rights may be used to prevent others from using a slogan, word mark, logo, packaging, or service that is confusingly similar to yours. If you choose to your mark prior to registration you should use the ^TM symbol to show that you are claiming common law trademark rights in the item. This will offer some protection until your trademark is registered and you are authorized to use the ® which is used to identify registered trademarks.

2. SECURE THE BRAND NAME & LOGO

            You don’t truly own your brand until you have registered and received a trademark. Having a registered trademark will prevent others from using a confusingly similar mark. More importantly, a valid registered trademark can add significant value to your business overall. Owning a valid trademark creates an opportunity for you to franchise your business and expand your brand by issuing restricted licenses. Lastly, having a registered trademark will provide you with many benefits and methods for enforcing your trademark rights. One example is the right to obtain a court order to seize counterfeit goods from illegitimate sellers; another is the ability to gain enforcement assistance from the US Customs and Border Patrol. Customs Agents seize millions of counterfeit goods as they attempt to enter the country. These are just a few of the many benefits of trademark protection. 

3. ASSIGN OR RESIGN

            It's no secret that teamwork can help spearhead innovation and creativity. Another well-known fact is that innovation without a formal agreement can lead to litigation, a court-imposed loss of ownership, or a division of ownership. To completely avoid a potential loss of ownership, it is best to have all contributors and collaborators sign the appropriate release. It is essential that the agreement clearly outlines how collaborators will be compensated even if their labor will be compensated with equity. More often than not, when the proper paperwork is not in place, a court or jury will be forced to decide who owns what. This problem can easily be avoided by having all collaborators sign either a release, assignment, or work for hire agreement. Furthermore, asking third-party collaborators to execute these agreements early on will allow you to weed out potential contributors looking for more compensation or ownership than you are willing to give.