Every business in the United States owns some form of intellectual property, often times without being aware that this ownership exists. Businesses should take proactive steps, a few of which are listed below, to create, maintain and profit from their intellectual property. Otherwise, they risk compromising and not being able to fully benefit from their intellectual property. Forms of intellectual property include trade secrets, trademarks, copyrights and patents.
Most businesses own some form of trade secrets which include information that is economically valuable due to its secrecy and is the subject of reasonable efforts to maintain the information as a secret. For example, customer lists, manufacturing processes, preferred suppliers may all be trade secrets. Trade secrets are not created by a registration process but are created when businesses take proactive steps to maintain the secrecy of valuable information . Such proactive steps may include stamping all documents relating to a manufacturing process as “CONFIDENTIAL INFORMATION” and restricting access to the information.
Trademarks are another form of intellectual property. A trademark is any word, phrase, symbol, design or combination thereof that identifies the source of a company’s products or services. Like trade secrets, local trademarks rights do not have to be registered to receive protection. Trademark protection is created upon providing goods or services in conjunction with the mark. However, such use-based protection is limited to the geographic area of use.
Registering a trademark with the state(s) and/or federal government extends trademark protection beyond the localized areas of use. State registration covers the entire state. In California, an application for a state trademark may be obtain at http://www.ss.ca.gov/business/ts/ts_formsfees.htm. An application for federal trademark covers all 50 states and may be filed at http://www.uspto.gov/.
Businesses may also own copyrights which protect an original work of authorship. For example, menus, catalogues and software are copyrightable material. Copyright protection exists without registration, and is immediately obtained upon fixation (e.g., putting pen to paper or saving a word document).
Registration may provide the additional benefits of statutory damages and recovery of attorney’s fees from infringers. Registration of copyrights may be made by filling out the appropriate form at www.copyright.gov/register/ and paying a $30 fee.
A patent is the most expensive form of intellectual property. Unlike the other forms of intellectual property which are created upon certain acts (e.g., sale of product for trademark, efforts to maintain secrecy for trade secrets and fixation for copyrights), patents require registration and approval by the Patent Office (USPTO). Obtaining a patent is more costly compared to obtaining other forms of intellectual property but may provide a business with a competitive edge by permitting the business to exclude others from practicing the invention defined by the patent claims. Businesses may apply for a patent by submitting an application for patent with the USPTO at http://www.uspto.gov/, but the disclosure requirements are complex and critical. Also, if you wait too long to file an application, patent protection may be unavailable.
To ensure the requirements for each type of protection are met and to ensure the protection is suitable, it is advisable to seek the assistance of a qualified attorney. Protection is often easily obtained, but a business must take the necessary steps to create, maintain and profit from their intellectual property.