IP 101: Types of Intellectual Property

  • By:Rachel V. Brenke, Esq.

Understanding how intellectual property is classified and the associated laws is extremely important to business owners.  Like real property and personal property, intellectual property provides the rights holder with certain exclusive rights. 

In general, intellectual property does not protect ideas in the abstract, but ideas fixed in some form.  The general policy presumption with intellectual property is that the public has an interest in offering a limited monopoly to the rights holder.

Let us take a look at the different types of intellectual property so you can best determine which types you business has and needs protection for.

 

Copyright

Copyright is affixed to an original work of authorship fixed in a tangible medium of expression that is capable of being perceived by a human being (such as logos, images, text, etc.).  Copyright is a set of rights given to authors/creators as to the ownership and use of their creative works, and is subject to protection based on Article I, section 8, clause 8 of the U.S. Constitution, and Acts of Congress relating to Copyright in Title 17 of U.S. Code.

  • Originality = sliding scale of whether a copyright claim is strong or weak
  • Tangible Medium = the idea can’t stay in your mind – it must take tangible form to be copyrighted.
  • Rights of a copyright owner include = reproduction, derivative works, distribution, performance, display, digital display.
  • Duration = life of the author plus 70 years; 120 years if corporate authorship.

While copyright attaches at publication, we highly recommend registration protection for enhanced legal argument and strength to protect your intellectual property.

 

Trademark

Trademarks are a word, symbol, sound, color or other device identified with a product or service (such as brand name, slogan, logo).  A trademark is a creature of state and federal law, with the federal government exercising authority under Congress’ authority to regulate interstate commerce.  There is also federal protection under the Lanham Act.

Unlike copyright, it is important to note that a trademark is a source indicator – a consumer need not know what particular business provides the good or service, simply that it comes from a single source.  A trademark is viewed as reflecting the goodwill of a company and expressing to the public the quality or other characteristics of a good or service with which it is associated.  Protection exists if the mark is distinctive. There is a well-known black letter test to determine inherent distinctiveness, based on a spectrum of protectability:

  • Generic marks (never protectable) – the base name of a good or service.
  • Descriptive marks (protectable if it acquires secondary meaning; never protectable initially) – a description of the goods or services, usually using known terms of quality (“best”), geography, and source (such as surnames).
  • Suggestive marks (protectable) – The mark suggests a quality or characteristic of the good or service, but not expressly so, requiring a logical leap of the mind.
  • Arbitrary marks (protectable – strong) – a known word with no existing association with the good or service.
  • Fanciful marks (protectable – strongest) – made up words that did not exist until used as a trademark.

 

With an indefinite duration, the rights holder may exclude others from using confusingly similar marks or from causing actual confusion in the marketplace.  However, the rights holder must also comply with the requirement of policing their trademark or they could lose their registration.

 

Trade Secrets

Trade secrets provide an indefinite duration of protection for confidential business information that gives an advantage over competitors.  The value of trade secrets protected today is estimated at $5 trillion in the U.S. alone.  State-to-state trade secret laws vary but most state laws (40 states) are based on the Uniform Trade Secrets Act (USTA).

This act defined trade secrets as:

  1. information, including a formula, pattern, compilation, program, device, method, technique, or process
  2. that derives independent economic value, actual or potential, from not being generally known to or readily ascertainable through appropriate means by other persons who might obtain economic value from its disclosure or use; and
  3. is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

 

In 2016, President Obama signed into law the Defend Trade Secrets Act, which for the first time grants federal protection for trade secrets in a manner similar to the protection under the USTA.  Fortunately, trade secret protection is not dependent on registration or licensing of any kind, but simply how able the company is to protect the secret.

The key is subject of efforts of reasonable secrecy.

 

Patents

Patents protect new and useful technological inventions (utility, design, and plants).  They are subject to protection based on Article I, section 8, clause 8 of the U.S. Constitution.

In order to file, the type of subject matter that can be patented must be:

  • useful;
  • novel;
  • nonobvious; and
  • full disclosure to the public.

 

Conclusion

We hope this helps you have a better understanding of the different types of intellectual property.  Our firm actively works in the areas of trademark, copyright and trade secrets – and we’d love to assist you.

 

Rachel V. Brenke, Esq.
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Rachel V. Brenke, Esq.

Partner & Attorney at Connors and Brenke
Rachel Brenke is a Virginia and Texas business attorney focusing her practice in intellectual property law, contract law, business law, technology law, and civil litigation. Her Virginia law firm, Connors and Brenke, provides legal counseling and representation to businesses throughout the Commonwealth of Virginia and State of Texas.
Rachel V. Brenke, Esq.
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Posted in: Copyright, Intellectual Property Law, Trade Secret & Appropriation, Trademark