Understanding the I & P of your Intellectual Property Rights

Do you think you might have the next great idea, but you aren’t sure who to turn to for help with protecting your Intellectual Property (IP)? Today’s post covers the basics of IP, and what you should know about protecting it. 

Intellectual Property is a broad category of intangible personal property that covers patents, trademarks, copyrights, trade secrets, and other information you may want to protect or keep confidential.  By striking the right balance between the interests of businesspeople, entrepreneurs, innovators, inventors, authors, and the wider public interest, the IP legal system aims to foster an environment in which creativity and innovation can flourish.  

Patents typically last 20 years from the date the application was filed. During that time, your invention is publicly known as your property.  According to the U.S. Patent & Trademark Office (“USPTO”) website, having a patent issued by the USPTO does not necessarily grant “the right to make, use, offer for sale, sell or import,” but instead gives you “the right to exclude others from making, using, offering for sale, selling or importing the invention.”  However, the USPTO does not enforce patents; it only issues them. It is the patentee’s or owner’s responsibility to enforce it. To protect your patent, you will need legal support, and that’s where an experienced IP lawyer can help.  

Trademarks are words, names, symbols, or devices that are used in commerce or business to indicate the source of the goods or services being offered and to distinguish your goods or services from those of others. Popular brands have recognizable symbols or logos that instantly reassure you of where the product or service comes from. Trademarks are an integral tool for any successful long-term business.  Trademarks are registered through the USPTO, and your valid Trademark rights may be used to prevent others from using a similar mark that could confuse your customers. The test for whether trademark infringement is occurring is whether there is a likelihood of confusion between the Trademarks and if your Trademark requires protection, you should consult with an experienced IP attorney.

Copyrights are a form of protection provided to creators of “original works of authorship”, including literary, dramatic, musical, artistic, and certain other works, both published and unpublished. Copyrights differ from a trademark because the work itself earns

protection upon creation. Copyrights are registered by the Copyright Office of the Library of Congress and do not protect the subject matter or idea of the work, but instead gives the author “the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phone-records of the copyrighted work, to perform the copyrighted work publicly, or to display the  copyrighted work publicly.”  It is the copyright holder’s responsibility to protect their property and an attorney is strongly recommended to assist in protecting your rights.

Franchises, under general franchise law, a franchise may exist when the following three principles exist:

1.) Substantial Association with Trademark

2.) Payment of a Fee, often to the franchise owner

3.) Marketing Plan/Community of Interest/Significant Control

It is entirely possible to become an accidental franchise, as many businesses have learned when they face an unexpected regulatory enforcement investigation, a lawsuit by a terminated licensee claiming the protection of franchise laws, or a major glitch in the sale of a company when the buyer’s due diligence uncovers a possible unregistered franchise program.  Legal missteps like these can prove to be costly to any business, but finding proper legal consultation beforehand can reduce your risk. It is also important to note that franchise law varies state-to-state, as can the definition of what is a franchise.  If you own or manage a business that is seeking to expand or you are considering purchasing a franchise, it is in your best interest to seek legal consultation.

Stockwell & Smedley has 27 of experience in Intellectual Property Law and we stand firmly with our clients through every step of the process. If you need an IP lawyer, please Contact Us Today.

Stockwell & Smedley has more than 20 years of experience in Intellectual Property Law and they stand firmly with their clients through every step of the process, from trademarks and

copyright to patents and representing franchisees and franchisors, they have the experience you need to protect your Intellectual Property.

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