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The second part of our Introduction to Intellectual Property (IP) Series continues the dialogue on types of IP. Many of you may be familiar with patents as a foundation tool for technology companies but may not be familiar with the other three types of IP: copyrights, trademarks and trade secrets (Oh, my! My apologies to Judy Garland). We plan to cover the key pieces to each and describe what differentiates them here.
What are copyrights? How do I know if something is copyrighted?
Copyrights are reserved for original works, including anything literary, dramatic, musical or artistic. Examples of copyrighted materials are software programs and architecture, poems, songs, movies, websites and other content created by a person or organization.
Defining whether something is copyrighted is relatively simple. According to the United States Patent and Trademark Office (USPTO), a copyright exists from the moment the work is created — regardless of whether the word copyright is affixed to it. Copyrights must not be registered for protection, but registration is encouraged for works that may be very public and require documentation to prove their ownership. Bear in mind that any time a document is created, a website published, a presentation given or a piece of unique code written, it is protectable as copyrighted material.
What is a trademark? What is a service mark? How do I register either?
Trademarks tend to be a little more clear cut than the other types of IP in that they cover a word, phrase, symbol, design or logo. Imagine anything that your marketing or advertising team has created that is branding your company as something that can be trademarked. It is important to remember as you start a company or create new branding identities that you review what already exists in order to reduce your risk for trademark violations.
A service mark (SM) is a form of trademark IP that exemplifies how you use or do business. For instance, a service mark would be used to describe the services you represent or sell while a trademark (TM) would be used for the products. In general, a service mark is a type of trademark.
Searching for and registering a trademark is simple. There are dozens of tools and resources that exist, but it is always important to consult an attorney as you begin this process. The USPTO should be your second stop, as it possesses and maintains the database of all registered IP.
The process of applying for a trademark is not as simple as letting the USPTO know that you want to register. You must clearly define the scope of products and services you sell as well as they key markets they apply to in order to for others to understand where a violation would occur.
What is a trade secret? How does it differ from a patent?
A trade secret is a process, chemical composition, formula, design, pattern or sequence of information that a company desires to keep secret through a series of internal processes.
Three important things must occur for a trade secret to be in place:- First, what is kept secret must not be known in the general public.
- Second, possessing this secret must lend some economic benefit to the holder of the trade secret.
- Third, the holder of the secret must have made reasonable effort in maintaining secrecy. Examples of maintaining internal secrecy are non-compete and non-disclosure agreements (NDA).
The protection of trade secrets does differ quite significantly from other forms of IP, which are protected under federal law. Trade secrets are governed state to state by the Uniform Trade Secrets Act with the exception of a few states (Texas is an exception). The difference in the laws in Texas is not significant, and Texas does impose civil liabilities (and, in some cases, criminal penalties) for those who misuse trade secrets. We encourage further discussions with attorneys to understand the differences in law.
Where can I go to learn more about the four types of intellectual property?
It is important to discuss your own needs and organizational needs with an intellectual property attorney. There are dozens of large and small firms in North Texas that can help you out. Further, the U.S. Patent and Trademark Office is a go-to resource for understanding the types of IP and the respective processes for registering them.
