Intellectual Property 101

What is intellectual property?

Copyrights are not the same thing as trademarks, which are not the same thing as patents. These are different forms of protectable intellectual property and are not interchangeable.

Intellectual property, or “IP” for short, is an umbrella term for a group of intangible personal property rights. The core four main types of IP are copyrights, trade secrets, trademarks, and patents. There are other rights, such as trade dress, mask words, unfair competition, and publicity rights, but this article is going to focus on the primary core four.

The type of IP rights a company should focus on will depend on its product or service. For ultimate protection, many companies simultaneously use a combination of the four. McDonald’s, for example, may be protected by:

Copyrights, for the information contained on its website.
Trade secrets, for any secret recipes or special sauces.
Trademarks, for slogans and the names associated with meal bundles.
Patents, for its methods of preparing/ cooking food, equipment used in cooking food, and packaging.

Copyrights

A copyright protects original artistic or literary works that are fixed in a tangible meaning of expression. This means that the work must be permanent enough to last for more than a transitory period of time. Think, for example, books, photos, music, fine art, websites, recordings, etc.

To be eligible for copyright protection, the work must be original. Originality simply means the work be independently created and possess a minimal degree of creativity.

From the moment a work is created in a fixed tangible medium, copyright protection exists. Registering a work for copyright protection with the US Copyright Office is optional but gives the owner the additional exclusivity and the ability to obtain monetary damages and attorney’s fees should they be successful in litigation.

Trade Secrets

Trade secret protection is essentially what it sounds like, information that you (a) reasonably attempt to maintain as confidential; and (b) is valuable because of its confidentiality. Think, for example, technical data, formulas, customer lists, programs, methods, presentations, and other similar forms of information.

Unlike the other types of intellectual property discussed in this article, there is no official registration process needed to obtain trade secret protection, and information can remain protected indefinitely under trade secret law so long as the owner takes reasonable steps to keep the information confidential.

Trademarks

A trademark is any word, name, symbol, device, or combination of such that identifies and indicates the source of a good or service. In the US, the simple use of a mark, without registering it with the US Patent and Trademark Office (“USPTO”) does provides some protection, but federal registration of the mark affords the highest level of protection possible.

Registration of the mark gives the owner the exclusive right to use the mark and may exclude use of the mark by others throughout the United States or prevent others from obtaining registration.

The ® symbol is used to signal a mark is federally registered. The ™ symbol is used to signal a mark is considered an identifying mark by its owner but is not yet federally registered.

Patents

Patents, at their most basic, are new inventions. Under US patent law, a patent registered with the USPTO gives its owner the right to exclude others from using, making, selling, or importing the invention for as long as the patent is valid. After the patent expires, the invention is then free game.

There are 3 main types of patents:

“Utility Patents” are the most common type of patent and are afforded to a new item or process. This type of patent gives the inventor control of the invention for 20 years from the date of application.
“Design Patents” are given to an inventor that adds a distinctive element to a manufactured item that either introduces an ornamental feature or creates a completely new design. This type of patent lasts 14 years and cover only the item’s appearance.
“Plant Patents” are the rarest type of patent and are given to special plants that a person can reproduce asexually. The holder of the patent decides if, and when, others can reproduce the plant. This type of patent lasts 20 years.

For an innovation to be eligible for patent protection, it must be novel, have utility, consist of a non-obvious design that a layperson in the applicable field doesn’t already know, and remain undisclosed prior to the application date.