Intellectual property is part of many businesses, even when owners do not think of it in those terms. A company name, logo, website content, product design, software, photograph, invention, or internal process may involve intellectual property rights.
Understanding the basic types of intellectual property can help business owners recognize what they may own, what they may need permission to use, and what may need additional protection.
What Is Intellectual Property?
Intellectual property generally refers to creations of the mind that can receive legal protection. Different types of intellectual property are protected under different laws and serve different purposes.
The main categories business owners commonly encounter include trademarks, copyrights, patents, and trade secrets.
These categories are not interchangeable. A trademark protects something different from a copyright, and a patent serves a different purpose from a trade secret.
Trademarks
Trademarks can protect names, phrases, symbols, designs, or other identifiers that distinguish the source of goods or services.
For a business, this may include its company name, product name, logo, or particular branding elements.
Trademark rights can arise through use, but federal registration with the U.S. Patent and Trademark Office can provide additional legal benefits in qualifying circumstances.
Before adopting a new business or product name, it is useful to check whether similar marks already exist. A business can otherwise invest heavily in a name only to discover that its use creates a trademark conflict.
Trademark protection can also vary depending on the goods or services involved and the geographic scope of the rights.
Copyright
Copyright protects original works of authorship that are fixed in a tangible medium of expression.
Businesses may encounter copyright in website text, photographs, videos, graphics, software, marketing materials, articles, and other creative works.
Owning a website does not automatically mean the business owns every piece of content appearing on it. For example, content created by an employee, independent contractor, photographer, designer, or other third party may involve separate ownership or licensing considerations.
Businesses should understand who owns the content they use and whether they have the necessary rights to reproduce, modify, distribute, or display it.
Patents
Patents can provide legal protection for qualifying inventions.
Unlike trademarks, which can identify the source of goods or services, patents generally concern inventions and certain new and useful processes, machines, manufactures, or compositions of matter, subject to the requirements of patent law.
Patent protection can be technically and legally complex. Filing decisions may also involve important timing considerations.
A business developing a potentially patentable invention should consider obtaining advice from a qualified patent professional before publicly disclosing the invention or taking other steps that could affect its options.
Trade Secrets
Trade secrets involve valuable information that derives economic value from not being generally known and that is subject to reasonable efforts to maintain its secrecy.
Examples can include certain formulas, processes, methods, customer information, business strategies, or technical information.
Unlike a patent, a trade secret does not require public disclosure of the information. However, the business must take appropriate steps to keep qualifying information secret.
Access controls, confidentiality agreements, internal procedures, and appropriate security practices can be part of protecting sensitive business information.
Intellectual Property Created by Employees and Contractors
Businesses should also consider ownership when other people create intellectual property for the company.
An employee, freelancer, designer, developer, photographer, or other contractor may create content or other work used by the business.
The legal rules governing ownership can vary depending on the type of work, the relationship between the parties, and the agreement involved. A business should not assume that paying someone automatically resolves every ownership question.
Written agreements can help clarify rights and responsibilities, but they should be drafted appropriately for the specific relationship and work involved.
Using Someone Else’s Intellectual Property
Intellectual property issues are not limited to protecting what a business owns.
Businesses also need to be careful when using material created by others.
Downloading an image from the internet, copying website content, using a competitor’s logo, incorporating commercial software, or reproducing someone else’s video does not automatically create a right to use that material.
Licenses, permissions, public-domain status, applicable exceptions, and other legal considerations can affect whether a particular use is allowed.
Intellectual Property and the Online Business
The internet makes intellectual property easier to distribute and easier to copy.
A business may publish its logo, product photographs, articles, videos, software, and other content across multiple platforms. At the same time, competitors or other users may be able to reproduce or redistribute that material.
Businesses should consider where important intellectual property is being used, who owns it, what permissions exist, and how potential infringement should be handled.
Protecting Intellectual Property Is an Ongoing Process
Intellectual property protection is not always a one-time registration or filing.
Businesses grow, introduce new products, change names, create new content, hire employees, work with contractors, and enter new markets. Each change can create new intellectual property considerations.
Maintaining organized records of registrations, licenses, contracts, original files, and ownership information can make these issues easier to manage.
Conclusion
Intellectual property can affect nearly every stage of building a business. Trademarks can help protect brand identifiers, copyrights can protect original creative works, patents can protect qualifying inventions, and trade secret law can protect certain confidential business information.
At the same time, businesses need to respect intellectual property belonging to other people and organizations.
The rules surrounding intellectual property can be complex and fact-specific. When a business is choosing a name, developing an invention, negotiating ownership, or dealing with a potential infringement dispute, advice from a qualified intellectual property professional can help determine the appropriate course of action.
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