Like many new business owners, you may find that your most valuable asset is your intellectual property. Unfortunately, that may leave you a bit confused. To help, here’s a quick overview on how to identify and protect your copyrights, trademarks, trade secrets, and patents.
Copyrights generally protect creative works including music, art, dance, and even computer code and business documents. If you create an original work, you’ll own the copyright to that work as soon as you reduce it to a tangible medium. Although not necessary, it is wise to register your work with the United States copyright office. Once protected, you can prevent other people from copying, displaying, distributing, and creating derivative works using your protected work (or anything substantially similar). The length of protection is usually the life of the author plus 70 years.
One of the most important things to keep in mind when copyrights are at issue is who owns the work. Generally speaking, the creator will own the work unless: (1) he assigns it to someone else in writing, (2) it was created for his employer, or (3) he created it as an independent contractor under a written agreement identifying the work as a “work made for hire.” Note: this third option is limited so you should always consider written assignments.
When writing your business plan, you may include the perfect new business name and tagline. Those items, among other things are known as trademarks. They serve to distinguish your goods and services from the goods and services of other people in the market.
You gain ‘common law’ trademark rights the moment you begin using a unique mark in commerce. But it is usually a smart move to file a trademark application with the USPTO to shore up your rights nationwide. Once you have a valid trademark you can usually protect it for as long as you use it in commerce.
Among the many steps involved when starting a new business plan is signing NDAs with multiple parties. The reason NDAs exist, of course, is to protect confidential information. But did you know there are state and federal laws that can help too? Those are known as trade secret laws and they allow you to protect information which you protect as confidential and which provides economic value to your business due to its confidential nature.
The key is you must take reasonable precautions to protect the confidentiality of the information. This usually means only disclosing it to third parties that have a need to know the information and, even then, ensuring they sign an NDA. Further, you should use good data privacy policies such as firewalls and good passwords. For physical items, you should use safes and other protections. To the extent something is a trade secret, you can protect it for as long as it remains a secret.
Patents protect inventions, machines, processes, and similar things and are issued by the USPTO. To obtain a patent, your invention must be: (1) useful; (2) new; and (3) not obvious. An important consideration when you invent things is when to file for patent protection and the general advice is to apply as soon as possible. There are very strict grace periods and, in some countries, you lose your ability to obtain a patent as soon as you disclose your invention to the public. Once you secure a patent, it will usually last for 20 years.
HOW DOES THIS FIT INTO YOUR PLANNING?
This is quite a lot to consider. But it is important for you to think through these topics as you write your new business plan and get ready to launch your business. If you’d like additional help, you can sign up for the free Kauffman FastTrac program at www.fasttrac.org.
CONTRIBUTOR: Chris Brown, Founder and Attorney, Venture Legal