Intellectual Property: How to Protect What Is Exclusively Yours

Intellectual Property: How to Protect What Is Exclusively Yours

Often, what makes your company stand out from others are its intangible assets: its unique technologies, secret formulas, brand identity, packaging, proprietary software, etc. Each of these differentiators is considered intellectual property, and that property can be among your company’s most valuable assets. By helping to set you apart, it may give you a considerable edge in the increasingly competitive marketplace.

The challenge of intellectual property (IP) is knowing how to put appropriate protections into place so that you have exclusive rights to benefit from its value. No one should be able to use your IP without your express permission.

Here’s a brief look into what qualifies as intellectual property, along with tips detailing how you could go about protecting it.

What is intellectual property?

Intellectual property is any intangible business asset created by human thought and effort. It can include ideas, inventions, processes, methods, literary works, designs, symbols, names and other creations that may give a company an advantage over its competitors. IP may be very obvious — think the Nike swoop or the “Snap! Crackle! Pop!” slogan — or not so obvious, like a proprietary algorithm that tracks brand sentiment and enables a personalized customer experience to help boost sales and mindshare.

While many assets may be classified under the IP umbrella, they are not all automatically protected from a legal standpoint. Intellectual property rights — the legal power to stop others from using your IP — may be secured through a copyright, trademark or patent, depending on the type of asset under consideration. In the case of trade secrets, it’s your efforts to keep the information confidential, rather than any formal legal mechanism, that may offer protection if those secrets are stolen.

Patent, trademark, copyright — or trade secret?

As you look into securing your IP rights, you can start by exploring the legal mechanisms available to you: patents, trademarks and/or copyrights.

Patent. A patent protects a company’s exclusive rights to a new invention, device or technical process for a set time period, typically 15 to 20 years from the date of filing. Patents are granted by the U.S. Patent and Trademark Office (USPTO) when the subject meets certain criteria for novelty and usefulness, and when it is not a modification of existing ideas that would be obvious to someone skilled in that technical field.

Trademark. Brand identity assets — names, logos, symbols, colors and other unique differentiating assets that help distinguish a company and its products or services — may be protected by a trademark. Registration with the USPTO lets the public know your brand is federally protected and provides you with substantiation of your IP rights should another company try to use any of these assets.

Copyright. Copyrights protect written content, design files, videos, software code and other creative works from being plagiarized or repurposed for use by other companies. Copyrights are automatic, taking hold as soon as an original work is fixed in a tangible medium — committed to paper or saved to a digital file, for example — but there are limits to the power of an unregistered copyright. You cannot file a copyright infringement lawsuit with a federal court, nor claim statutory damages or attorney fees, unless you have registered with the U.S. Copyright Office (USCO).

A note about trade secrets: Trade secrets — confidential, proprietary business information such as formulas, recipes, techniques, processes or client lists — are not protected by federal safeguards, but you can protect them by putting policies in place that restrict physical and digital access to the data. You can also mandate that employees and vendors who do have access sign confidentiality contracts. Consult your attorney to ensure your trade secret protections are adequate.

Where to begin

If you haven’t yet protected the IP that helps your company excel in the marketplace, it may be time to take stock and take action. These steps are designed to help.

Identify which of your business assets are intellectual property. Bring your key leaders together to discuss what you own that may qualify as IP. The USPTO offers an online tool — ipidentifier.uspto.gov — to help. You may want to consult your attorney or business advisor for insights as well.

Categorize your IP assets. Determine which of these assets require registration with either the USPTO or USCO. If you’re planning to register for a trademark (or multiple trademarks), first search the USPTO’s online trademark database to see if someone has already registered that trademark or one that is similar enough that your application may be rejected.

Understand the costs. Once you know how you’d like to protect your IP, check with the appropriate registration office to see what costs may be involved. Add to that any attorney fees you may incur if you plan to seek legal assistance. (While registering for a copyright or trademark is generally a straightforward process, securing a patent can involve complexities that may require external support.) Note, too, that maintenance of a patent may require annual or other regularly scheduled fees.

Be prepared to wait. It may take several months for your copyright or trademark application to be reviewed and approved, so be aware of the timeline. You can check the status of your application every few months using the USPTO’s Trademark Status and Document Retrieval tool or USCO’s Electronic Copyright Office registration portal. Due to their complexity, patent approvals can take considerably longer, often two to four years.

Protecting your intellectual property may require time and effort, but having safeguards in place can be important when you want to ensure that what’s yours remains yours.

This article is for general information purposes only and is not intended to provide legal, tax, accounting or financial advice. Any reliance on the information herein is solely and exclusively at your own risk and you are urged to do your own independent research. To the extent information herein references an outside resource or Internet site, Dollar Bank is not responsible for information, products or services obtained from outside sources and Dollar Bank will not be liable for any damages that may result from your access to outside resources. As always, please consult your own counsel, accountant, or other advisor regarding your specific situation.