Small Business Questions & Answers


Filed under Start Up

Ask About Intellectual Property

by Patently Ignorant | May 25, 2012

Subject :Business Law

Dear Toolkit,

Can you give us a short course in "intellectual property?" I can never keep all those little symbols straight.

Patently Ignorant

Dear Patently Ignorant,

Good question! As piracy becomes more pervasive in our global economy, this body of law will take on ever increasing importance to the small business person as well as to the captains of industry.

Patents, trademarks, and copyrights are collectively known as intellectual property and generally refer to the rights associated with intangible knowledge or concepts. Intellectual property may be a concern if your business is developing (or has developed) a product, process, or concept that you are going to market.

Here's a short description of some of the issues pertaining to patents, trademarks, and copyrights, which should help you get a better feel for what they are:

Patents. A patent is a grant of a right to the inventor by the U.S. (or some other) government. The right embodied in a patent allows the inventor of the right (or the patent holder, if the patent has been assigned) to exclude others from making or using the invention for a period of time, usually 20 years. Patent searches can be conducted to find out if someone else already has a patent on a product, process, or concept that you're going to build or market.

This is possibly the most complex legal specialty, and you should look for help from a qualified patent attorney. You should sooner defend yourself for murder than take a chance on a do-it-yourself patent. Don't send in the second team to represent you on a patent matter! Your patent needs to be iron clad to protect you from the 'knock-offs' you may have to do battle with down the road.

Trademarks. A trademark is the right to a name, word, phrase, symbol, logo, color, design, or a combination of these elements, such as the Nike "swoosh" or the Ford logo - something that identifies your product and distinguishes it from others. (A service mark (sm) is similar but is used to identify a service business.)

Like a patent, a trademark right allows the owner to exclude others from using the trademarked identity or from using an identity that is similar enough to cause confusion in others. If you have a logo or some other item that you plan on using as a symbol of your business, you may want to have a trademark search conducted to make certain that your logo or other item isn't already restricted. And when you register your trademark, you can use the trademark symbol (an "R" inside a circle) to show the world that you mean business.

Trademarks are kind of like muscles. You use them or lose them. Not only should you use your trademark consistently to distinguish your brand from others but you should be vigilant about seeing to it that others respect its exclusivity. If you don't, your valuable identity mark may go the way of escalator, kerosene, zipper, yoyo, and aspirin - into generic limbo. Your role models should be Coke, Xerox, and Kleenex - militant protectors of their marks. They always make sure their trademarks are used as adjectives.....Kleenex brand tissues, Xerox brand photocopiers.

Here's an interesting side note: trademark law was actually created to protect the consumer from confusion or deception about the origin of a product, not to protect the owner of the mark from infringement.

Copyrights. A copyright is the right to reproduce a certain work if the work is in fixed form. A copyright is secured automatically when the work is created and is identified by the copyright symbol (a "c" inside a circle). A copyright term is for the life of the creator plus 70 years. Copyright infringement can be avoided by showing that the work in question was created independently of the copyrighted work.

Copyright law is an increasingly lively field since the advent of the Internet. The potential for abuse of copyright protection for online content is enormous. For example, if you are teaching a class and want to use some great information you found on the Net, you can paraphrase it and relay it to your students or, as an alternative, you can give them the URL of the site you found so useful, but you cannot simply print the site content and hand it out to your class. That would be a breach of copyright law. The Napster debacle was a copyright breach issue and the international exposure to the theft of intellectual property is enormous. Napster pointed out the audio problems and now YouTube and the others like will point out the video vulnerabilities.

Here's some copyright trivia: this body of law was created by our Founding Fathers to foster creativity for the common good. A creative person was given a kind of limited monopoly on his creation through a section of our Constitution. Note that, as in trademark, copyright was designed to benefit the public and only encourage the creator.

I hope this has shed some light on the complex body of intellectual property law.