Intellectual property might seem esoteric, but it’s important to protect it like you would any other asset. To do so, you’ll need to understand some basics about intellectual property rights first.
Two of the most common forms of intellectual property protections are the copyright and the trademark. While the two are often confused, they protect very different types of intellectual property. Learning the differences, and how you can use both to protect your own creative output, is essential to securing your assets.
What is a copyright?
The U.S. Copyright Office of the Library of Congress defines a copyright as “a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.” What exactly does that mean?
A copyright extends to any type of creative product that you’ve put down on paper, in design, or elsewhere. In fact, a copyright exists from the moment your work is created, whether you register with the U.S. Copyright Office or not. However, for it to hold up in court, registration is a good idea.
“You must register your copyright if you want to sue for copyright infringement,” said Ruth Carter, owner and attorney at Carter Law Firm. “I also recommend registering your copyright if you plan to license your work.”
Although your work is technically copyrighted at the time of creation, registering it with the federal government is what grants federal protection to your intellectual property. Otherwise, you cannot bring a lawsuit against another party for copyright infringement.
How to register your copyright
Once obtained, a copyright protects works, including literature, drama, music, poetry, novels, movies, songs, software and architecture. If you are concerned that any of these will be used for profit without your consent, you should consider registering them with the U.S. Copyright Office.
“The process to register a copyright requires submitting an application to the U.S. Copyright Office and paying a fee, which you can do online,” Carter said.
Beyond the ability to sue for copyright infringement, registering your copyright within five years of the work’s publication grants it prima facie status in court. Literally meaning “based on the first impression,” this Latin phrase means your copyright will be accepted as fact until proven otherwise.
Moreover, copyright protection extends to many other nations besides the U.S.; the federal government maintains copyright agreements with most other countries worldwide, which essentially state that the governments will respect each other’s citizens’ intellectual property.
Copyright protections expire after the author’s lifetime plus 70, 95 or 120 years, depending on the nature of the work.
What is a trademark?
A trademark, as defined by the U.S. Patent and Trademark Office (USPTO), is “a word, phrase, symbol and/or design that identifies and distinguishes the source of the goods of one party from those of others.” It is also sometimes known as a “service mark” when referring to a service-based business.
“Trademarks protect those things that companies use to help customers connect back to the goods or services they purchased. Things that are trademarked are indications of source,” said Erin Ogden, attorney at Ogden, Glazer and Schaefer. “That can be commonly known trademarks like words (Nike), logos (the swoosh), and slogans (Just Do It). It can also be colors (pink insulation for Owens Corning), sounds (NBC chimes), shapes (the Coca-Cola bottle), [or] anything that helps a customer pick out and remember a good or service and get it again.”
According to Ogden, achieving federal trademark protection allows the holder to use the trademark nationwide with the ability to sue in federal court, potentially obtaining triple damages for infringement and nationwide injunctions to halt others’ use of the trademark.
“By having copyrights and trademarks, you get to control your intellectual property related to those protections,” she said. “That means you can give or withhold permission of others to use your copywritten or trademarked property. That also means that you can give only certain permissions in exchange for money, otherwise known as a license.”
How to obtain a trademark
Much like a copyright, registration of a trademark is voluntary. You can adopt what is known as “common law” rights by affixing a “TM” superscript after the brand or product you consider trademarked. If it is registered with the USPTO, then affixing a superscript “R” within a circle to the end of the brand or product denotes legal ownership nationwide.
To register your trademark, there is an application process and filing fee beginning at $225. Once registered, trademarks never expire.
What is a patent?
The USPTO defines a patent as “a limited duration property right relating to an invention … in exchange for public disclosure of that invention.” Patents include machines, manufactured goods, industrial processes and chemical compositions.
As long as a patent is in effect, it grants the holder the right to “exclude others from making, using, offering for sale, or selling” their invention, or even importing it into the U.S. It is up to the patent holder to enforce the patent by identifying any infringements and taking the responsible party to court. The U.S. federal government does not enforce patents for the patent holders.
How to obtain a patent
There are multiple types of patents you could apply for, so determining which best fits your invention is the first step. There is an application process on the USPTO’s website that must be followed as well as a filing fee beginning at $130 but reaching as high as $3,000 for certain inventions.
Design patents expire 15 years after the date they are issued, while utility and plant patents expire 20 years from the date on which they were filed.
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