Last month, we introduced some basic ideas about intellectual property and intellectual property law as it relates to startups. In that post, we focused on ways that the law could protect ideas that people or companies were trying to keep secret. Examples of these kinds of ideas include product formulas, software, a business concept, or any other proprietary ideas that are essential to the way a business is run.  The two concepts that we discussed were non-disclosure agreements and the legal protections afforded to trade secrets by statute. This week, we will discuss ways in which the law can protect ideas once they are made public. Because this kind of intellectual property is readily available, it is in some ways even more important for businesses to employ legal mechanisms to protect it from misappropriation from other parties.

Copyrights and Patents

Copyright gives a person who creates an original work exclusive rights to that work; in this context, “work” means any creative, literary, or intellectual expression of an idea. It is important to note only the expression of the idea, not the idea itself, is protected.  This means that for your hypothetical app idea, only the expression of the idea (i.e. the app itself) is protected, but not the idea for the app.

Patents protect inventions, and give the patent holder the exclusive right to make, sell, or use the invention for twenty years in exchange for public disclosure of the invention. Historically in the United States, patent protection was determined by the first person to invent, rather than the first person to file for a patent. This law is set to change this year, making it all the more important for an inventor to file as early as possible. Learn a bit more about the patent filing process here.

Trademarks

A trademark is a symbol, word, name, or other identifying mark that identifies a company or a product.  People, businesses, and organizations may own trademarks, or can also license them from other parties. For example, if you wanted to start a business selling apparel with your favorite team’s logo, you would need to license that logo from the trademark owner. Trademarks can also be non-conventional trademarks, meaning they could be another type of unique identifier identifying a product as having been made by a particular company. For example, notable shoe designer Christian Louboutin recently won trademark protection for his signature red soles on his shoes in a case against Yves Saint Laurent. According to the federal appeals court opinion deciding the case, it was “the contrast between the sole and the upper that causes the sole to ‘pop’ and to distinguish its creator.” Another example of a color used to identify a particular company is Tiffany & Co.’s iconic blue box, which is also protected as a trademark under U.S. law.

Protect your Intellectual Property

Copyrights, patents, and trademarks all operate to protect ideas from been misused or copied by other people or parties. The underlying purpose of protecting ideas from misappropriation or misuse is to both stimulate innovation by incentivizing invention and also protecting a fraud against consumer while allowing innovators to have a property interest in goodwill they create by creating a superior product. If you are in the process of bringing a product to market or branding a company, you should consult with an intellectual property attorney to make sure you are doing all you can to protect yourself and your business.

For more information on the difference between patents, copyrights and trademarks, visit this post.

- Claire Kalia

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