Unlike real property or personal (material) property, intellectual property are assets of an individual or organization that are intangible. Intellectual property is the ownership interest a person or company may have in creations of the mind. Intellectual property law grants the creator of intellectual property exclusive rights for exploiting and benefiting from their creation. There are four main types of intellectual property protections – trademarks, copyright, patents, and trade secrets.

 

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Trademarks

Trademarks protect words, symbols, and other “marks” that are capable of identifying its owner. A trademark is a name or symbol or other indicator that identifies your enterprise to the public. With continuous use, rights can last forever. Trademark rights are acquired by using the trademark. Use the TM mark in connection with an unregistered trademark and the ® to indicate a registered trademark. Examples of trademarks include Netflix, Nike, Google, Apple logo, etc.

Trademarks do not create monopoly rights. They are acquired in connection with particular goods and services. For this reason, there could be more than one party with the same mark for different, unrelated services. Trademarks are also not all created equally. Some are stronger than others with stronger rights attaching to arbitrary or made-up words than to words that are highly suggestive of the goods or services covered or even descriptive of such goods or services. Generic trademarks are not protectable at all.

  • Registration: Registration is available at the state and federal level. (Note: your corporate name registered with the state is not the same as a trademark and does not give you proprietary rights to a name.) The owner of a federally registered mark acquires additional statutory rights and enforcements by the courts. A federal registration grants nationwide rights even though the trademark may only be used in as few as two states.
  • Corporate name: Your corporate name is not automatically a trademark. Your corporate name can be a trademark if you register it. The first to use a trademark in connection with particular goods and/or services has prior rights.
  • Domain name: A domain name is also not a trademark, though domain names arguably serve an identifying function. Domain names are not acquired in the same way as a trademark nor are treated as a trademark. However, it is possible that a portion of a trademark may be incorporated into a domain name and the domain name itself may be used or registered as a trademark.
  • Use: A trademark should be used consistently throughout the organization. Improper use of a trademark could lead to erosion or weakening of the mark and sometimes loss.

Patents

Patents protect new, non-obvious useful inventions. Utility patents last 20 years. Patents must be registered for rights to attach. A patent attorney should be consulted if you believe you have an invention that qualifies for protection.

Trade secrets

A “trade secret” is information that is confidential to the business and held in secret. There is no registration process, and trade secrets remain protected so long as the information is held in confidence. Intellectual property counsel should be consulted regarding best practices to ensure information is protected as a trade secret.

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