Intellectual Property rights allow a business to protect economically valuable intangible assets. These rights are often among the most important and valuable rights a family business can own; they allow a business to differentiate itself and they confer competitive advantages by representing the government's recognition that certain aspects of the business are exclusive.
The most relevant intellectual property rights for a family business are trademarks, copyrights, patents, and trade secrets. There are other intellectual property rights, but they are generally related to those four core classes of rights.
- 1. Trademark: Trademark law protects symbols that identify the source of a party's goods and services and distinguish those goods and services from the ones provided by other parties. A trademark can consist of words, logos, slogans, and even sounds or colors: anything can be trademark so long as it serves as a source identifier for goods or services.
Trademark rights in the United States are acquired through use. That is, once a trademark is introduced into commerce, a business has enforceable rights in that trademark. Federal registration does confer additional benefits, such as federal recognition of your trademark rights, nationwide coverage of those rights, or advantages for enforcing trademark rights against third parties. Trademark rights can last forever so long as the mark is being used to sell or distribute goods or services.
- 2. Patent: Patent law protects what are generally referred to as "inventions." That is, patents protect new and useful processes, machines, manufacturing methods, compositions of matter, or improvements to any of these things. Patent rights are only conferred to those who own a patent to the invention.
A patent gives the owner the exclusive right to prevent others from using and exploiting the new invention for up to 20 years. Generally this means the owner is the only party who can use and exploit the invention, unless the new invention relies on patent rights owned by a third party. The invention must be novel and exhibit utility to be eligible for a patent; obvious advancements of previously known technologies or mere theoretical ideas cannot be patented. Patents are also not available for inventions that have already been exposed to the public for a period of time; in the United States, once the invention has been in public for over a year without filing a patent application, it is no longer possible to seek patent protection on that invention).
- 3. Copyright: Copyright law protects an author's expression of an idea, but not the idea itself. For example, anyone can write a story about a boy wizard fighting evil, but copyright law prevents the copying of JK Rowling's expression of that idea in the Harry Potter series. Copyright law covers most types of expression, including literary works, art, music, movies, and building designs. Notably it does not cover clothing. Copyright protection also does not extend to functional aspects of a design such as the tines on a fork.
Copyright rights attach immediately upon creation of a work. However, even though those rights exist, to enforce those rights against a third party in the United States it is necessary to register those rights with the U.S. Copyright Office. Copyright rights exist for a fixed period but will eventually pass into the public domain for use by anyone. There are also limited exceptions where a copyrighted work can be used by a third party at any time, but it typically cannot be used in a way that competes with the copyright owner.
- 4. Trade Secret: A trade secret is information, including know-how, formulas, recipes, product formulations, patterns, compilations, techniques, program devices, methods, techniques, processes or processing techniques, that: (i) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Examples of trade secrets include sale processes, consumer profiles, marketing strategies, social media contacts, and lists of suppliers.
Owners of a trade secret must take reasonable steps to maintain the secrecy of the information they hope intellectual property law will protect. Reasonable steps include having appropriate non-disclosure agreements with employees and third parties with access to the information. A trade secret can be protected indefinitely if its owner takes the appropriate steps.
Understanding the types of available intellectual property can help a family business to protect that property effectively. A DWT lawyer can assist in developing a plan to ensure your intellectual property rights are secured.