Intellectual property is a bundle of exclusive rights over creations of the mind, both artistic and commercial. When people think of intellectual property, they typically consider the four most important forms of IP which are patents, trademarks, trade secrets, and copyrights, And today, IP touches every part of a business. Intellectual property can touch every employee, from the least technical to the most: professionals in engineering, manufacturing, sales, marketing, procurement, customer service, finance, management, and everyone in between. IP can present serious risks – and massive opportunities – for all of us.
3. Trade Secrets
A trademark is anything used in commerce to designate the source or origin of a particular product or service. It can be a word, a design, a logo, a sound, a color, a scent, a product shape, a symbol, or any combination of these things – provided that it is non-functional, and it indicates the source of a good.
To be enforceable, a trademark must be distinctive, and there are two reasons for this. First, the whole point of a trademark is to uniquely connect the trademarked product or trademarked service to the company that is delivering the product or service into the marketplace. If the trademark isn’t distinctive, there would be confusion as to who owns it, and therefore confusion about the product’s origin. And second, if the trademark were not distinctive, and instead descriptive or generic, it would simply be unfair to give one company exclusive rights to use a descriptive term that everyone in the industry already uses and needs to describe their own related products.
Since trademarks are necessarily tied to products and services, they are equally tied to use in commerce. In fact, a trademark must be used in commerce to be enforceable. And, as long as you keep using your trademark in commerce, your trademark rights can last forever.
One form of trademark protection is known as trade dress, which typically concerns the total image or overall appearance of a product or packaging, such a size, shape, colors, texture, overall environment, or other thematic elements. In some cases, trade dress can even protect things like sales techniques.
A service mark is a form of intellectual property that is essentially equivalent to a trademark, but with one important difference: a service mark designates the source or origin of a service, rather than of a product.
A patent is a government-issued intellectual property right that allows the patent owner to prevent others from making, using, selling, or offering to sell products and services that are covered by the claimed inventive features of the patent. Having said that, a patent does not give the patent owner the right to make, use, sell, or offer to sell products and services that are covered by the claimed features of the patent. In other words, a patent does not give the right to do anything other than prevent other people from doing things. It’s also worth mentioning that a patent is only enforceable in the country that granted it, and only during the specified life of the patent.
There are three basic types of patents, and each offers protection for inventions that fall into different categories. A utility patent protects a process, a method, a machine, a manufactured device, or a composition – or an improvement to any of those things. In most parts of the world, for a utility patent, your invention must be new, useful, and non-obvious. Now, having said that, in patent offices throughout Europe, the non-obvious feature is referred to as an inventive step. A design patent protects the non-functional ornamental design embodied in, or applied to, an article of manufacture. And, a plant patent protects an invented or discovered asexually-reproduced plant.
Generally speaking, a trade secret is proprietary and confidential information that is valuable and provides a meaningful competitive advantage for as long as it’s kept secret. To be a trade secret, the competitive advantage must be meaningful enough that you’re willing to go to greater lengths to keep it secret than you would for other proprietary and confidential information. A trade secret can be a formula, practice, process, design, instrument, pattern, or compilation of information with which a business can obtain an economic advantage over competitors….again, as long as it remains secret. But, trade secret information is only enforceable as a trade secret in the event of trade secret misappropriation if three conditions are met. First, the owner took reasonable measures to keep the information secret commensurate with the value of the trade secret. Second, the trade secret was not known or readily ascertainable by competitors and the general public. And, third, the information derives actual or potential independent economic value from not being made known to the public.
What is the duration of a trade secret? Well, that depends completely upon your ability to keep it secret. Because unlike a patent or copyright, which each have lives of limited duration, if you can keep your trade secret, secret, it can last forever. Now, having said that, there are two common situations where trade secret rights are lost: first, if your competitors can reverse engineer your product and discover your secret, and second, if you do not have a strong enough secret-keeping infrastructure within your company. In either case, regardless of how your trade secret was exposed to the world – by reverse engineering, loose lips, or any other reason – once it’s made public, your trade secret and all the protection/value that went hand-in-hand with your trade secret is lost forever.
A copyright is a form of protection provided to the creators of original works of authorship. This includes literary, dramatic, musical, artistic, and other intellectual works. These can be published or unpublished works. And they can be protectable copyrights as long as they’re fixed in a tangible medium. For example, if you sing a song, it’s not copyrightable unless you record it, but if you do record it, it becomes a copyright asset to you.
Now, do copyrights provide you with protection or exclusivity over your ideas? No. Copyright laws give you exclusive rights to the expression of your ideas; to the visual, or written, or audio embodiment of your ideas. Copyrights protect the way you express your idea, as opposed to the creative or inventive idea itself. If you publish an article describing how to make your newest invention, a copyright cannot be used to prevent people from making, using, or selling your invention, but it can be used to prevent others from copying your article.
So, what does a copyright give you the right to do? A copyright gives you the exclusive right to reproduce your material, prepare derivative works based upon your material, distribute copies by sale or otherwise, and publicly display or perform the work. Put another way, in a more practical way, your copyright gives you the right to prevent other people from doing those things.
What kinds of things do copyrights protect? Again, copyrights do not protect ideas, but instead protect the oral, written, or visual expression of those ideas. These include original literary, dramatic, musical, and artistic works, such as poetry, novels, images, movies, songs, computer software, and architecture. Copyrights do not protect facts, ideas, systems, or methods of operation, although they may protect the way these works are expressed. For example, if you have a cookbook, your copyright would not prevent others from making the recipes in the book, but it could prevent others from copying the book itself. So, how does this apply to your business? Well, copyrights protect software code, white papers, marketing material, graphic images used in packaging and promotions, videos, blogs, web pages, and other material that you might find useful to advance your business objectives.
So, why should you care about intellectual property? Simply, intellectual property rights allow you to protect your products, your processes, your ideas, and the way you express your ideas. Trademarks enable you to prevent others from copying, trading on, or diluting your brand. Patents enable you to prevent others from making, using, or selling, or offering your patented technology for sale. Trade secrets enable you to prevent others from misappropriating the business secrets that give you a competitive advantage in the marketplace. And copyrights enable you to prevent others from copying the written, visual, or audio embodiment of your ideas.
Intellectual property is so important that you can’t afford to ignore it. But, navigating the field can be tricky, so, to protect yourself and your business, your best bet is to enlist the help of an attorney who is an intellectual property expert.