Protection of your intellectual property begins locally. Your intellectual property is any creation of your mind. Most countries have laws that allow you to protect these creations. In this post we discuss forms of intellectual property you may already be using in your business and how to protect them.

Courtesy of Microsoft ClipArt

Courtesy of Microsoft ClipArt

Major Forms of Intellectual Property

Trademarks: A trademark can be a word, symbol, and/or design used by its owner to distinguish its products or services. Trademarks and service marks allow a customer know where the goods and/or service came from.  Some customers buy a particular brand because they associate it with quality and/or with something familiar. You do not want anyone else using your mark because your customer may end up buying from your competition instead. A well-known example of a trademark is the Nike swatch.

Copyright: A copyright is the exclusive legal right granted to authors to protect their works. Music, lyrics, books, and art and dance works are just a few examples of the different types of works that can be protected by copyright. A copyright gives you the right to control how your work is reproduced. This article about the battle between Paul McCartney and Michael Jackson to own the copyright to the catalogue of Beatles’ songs shows the importance of this form of intellectual property.

Patent: A patent is the exclusive legal right granted to the inventor or a new product or process to profit from the production and/or use of the invention. Patents focus on the mechanisms behind an invention. Here is a link to the official patents of 101 gadgets from the Game Boy to the electric guitar.

Protecting Your Intellectual Property Locally

The best way to protect your intellectual property is by registering it. Registered trademarks give exclusive rights to the owner to use that mark. They tell the public that a certain mark belongs to you. The internationally-recognized ® after a name or mark indicates a registered mark. Alternatively, it is also possible to use ™ without registering your mark.

A copyright is obtained for the tangible expression of your creative idea or thought. Copyright protects against unauthorized copying, distribution, adaption, performance, display or importation. An item is legally copyrighted as soon as it has been expressed. You can obtain formal copyright through the Copyright Office in your home country. Alternatively, it is also possible to place © and the year of creation on the work or its written expression (e.g. on a piece of music or a website). Going through the formal copyright process makes it easier to defend one’s authorship in the event of unauthorized use.

Registering a patent helps to protect your invention. The United States awards patents to the “first to invent”. Most countries rely on a “first to file” system. Even in the United States, where patent protection presumably exists as soon as the item is invented, failure to register can make it very challenging to establish the chain of events. There is no informal alternative to a registered patent.

Protecting Your Intellectual Property Globally

Registrations of your intellectual property in your home country are not recognized internationally. The best protection is to register in each country where your intellectual property may be at risk. The US Patent and Trademark Office suggests that you take the following steps to determine whether you need to register your intellectual property in a given country:

  1. Investigate the market opportunities and competitive threats in those countries where your products are made and/or sold and/or your services offered;
  2. Analyze the risk or rewards, procedures and costs of securing intellectual property protection in countries where your products are made or sold and/or your services offered;
  3. Investigate the intellectual property environment and protection status of competitive products in those countries where your products are made or sold and/or your services offered.

The Patent Cooperation Treaty (PCT) allows applicants to simultaneously seek protection in up to 148 countries by filing one international patent application.

The Madrid System similarly provides a one-stop mechanism for registering and managing marks in member countries.

There is no international system for copyright registration. However, country signatories to the Berne Convention on the Protection of Literary and Artistic Works have agreed to minimum mandatory requirements for copyright holders and to extend the same level of copyright protection to foreign works as a local work. In addition, various registries have been created to assist authors with monitoring the unauthorized use of their creations.

Some Resources

The choice to register, or not, to protect your mark is ultimately a business decision. Here are Top 10 Reasons you may want to register your mark.

Take the IP Awareness Assessment (courtesy of the USPTO) to find out what types of intellectual property you may be using and to get an individualized awareness and education material package.

Visit the USPTO site for information and resources, including on protecting your rights in other countries.

Contact DevelopTradeLaw, LLC or AMD Law for support.

This post was written by Andrea M. Ewart, Esq. of DevelopTradeLaw, LLC and Aurelia Mitchell Durant, Esq. of AMD Law/Is My Brand Protected?