In this Think column, Venture Legal attorney Andrew McGhie explores the complex world of intellectual property and how to protect your company. The Think column helps entrepreneurs to stop and think about the various aspects of starting and running a business.
The most valuable assets for startups often include some type of intellectual property.
What protection is available for these assets? It depends on the type of IP you want to protect. Most IP protection falls into one of three well-developed areas of law. Here’s a brief cheat sheet on IP and how to protect your business.
Copyright
Copyright law protects artistic and literary works — such as recordings, manuscripts, books, artwork, etc. — and also computer programs (object and source code). It is important to remember that expressions of ideas are copyrightable, but the ideas themselves are not.
Copyright protection begins as soon as an original work is fixed in a tangible medium and rights extend automatically to the creator unless it’s a work made for hire or the creator has made a contractual agreement to the contrary (such as in a contractor agreement).
Rights protected under copyright law include the exclusive right to produce, distribute, create derivative works, display or perform publicly. Any unauthorized exercise of any of these rights, which usually last for the lifetime of the creator plus 70 years, constitutes copyright infringement.
Trademark
Trademark law protects names, logos, slogans, color schemes, etc., used in connection with the sale of goods or services.
Rights are created as soon as the mark is used in interstate commerce (which courts interpret very broadly) and include the right to prohibit others from using your mark with respect to the specific goods and services offered in connection with that mark. Rights last as long as the mark is used in interstate commerce, provided you do not abandon your mark.
Protection extends only to the geographic area in which the mark is used unless the owner seeks protection from the United States Patent and Trademark Office, which extends protection throughout the U.S.
Any unauthorized use of a protected mark — or any mark confusingly similar to the protected mark that is likely to cause customer confusion — constitutes trademark infringement.
Patent
Patent law protects things like inventions and new and useful improvements of machines, processes, manufactured products or materials, and compositions of matter. There are three types of patents available depending on what is being protected: design, utility and plant.
Patent protection allows the owner to prohibit others from making, selling or using the subject matter of the patent. Design patents last for 14 years from the date of filing, while utility and plant patents last for 20 years.
To get patent protection, an inventor must be the first to file for protection of a patentable subject matter. Patentable subject matter must be useful, new and not obvious (to a person having ordinary skill in the field).
*This article is very general in nature and does not constitute legal advice. Readers with legal questions should consult with an attorney prior to making any legal decisions.
Andrew McGhie is an attorney with Venture Legal, a firm that provides legal services for small, growing businesses. Follow him at @andrew_kcesq.
