If you’re an entrepreneur or aspire to be one, there is a fair chance that you’ve heard about the various parts of intellectual property (IP) law.
This is with good reason, too! IP law is what will help you protect your brand, ideas and products/services so that you are able to compete in the market without fear of being drowned out by cases of infringement.
Though you will likely seek professional help with your intellectual property journey, everyone should know the basics to give them a place to start. Here are the main things to know about IP law!
Why is IP Law Important?
Whether you are an independent entrepreneur or you already have a business that’s been up and running for several years, IP law is critical in making sure you maintain the rights to your original ideas.
Particularly for smaller, newer startups, IP law is absolutely necessary to make sure you survive in an extremely aggressive and saturated marketplace. There are many other companies with way more resources and influence that you currently have, and if they are able to immediately snatch up your idea and make their own version, you will undoubtedly be flushed out due to competition you can’t keep up with.
Having your brand and your ideas protected makes the process of bringing your idea to market far less stressful because it gives you the peace of mind to carry on with business without the fear of your ideas being replicated before you can even establish yourself.
For things like branding, you’ll want to receive overall protection for the entire lifespan of your business. For individual ideas and inventions, you will only receive a set amount of years before other companies will be allowed to mimic and evolve your ideas, but that gives you plenty of time to establish yourself and build a loyal following.
Ultimately, there is a reason that pretty much every business, big or small, seeks out protection for things like logos or inventions. It’s critical to optimizing profit and gives you a fair right to your invention.
What Does IP Law Cover?
The most important thing to realize about IP law is that it is universally applicable – that is, it is relevant to just about any industry in any part of the world since the nature of any business is that it produces something worth protecting.
Even if a business doesn’t do anything that is unique to their venture in terms of inventions that could be patented, they will still have a brand worth protecting. Adversely, even if an entrepreneur isn’t trying to market a brand but rather a specific invention, they will likely want to seek out a patent.
No matter what a venture is looking to protect (branding, inventions, methods of production/business, etc.), there is likely a way that IP law can help, and knowing the basics will make it much easier for you to feel confident when defending yourself and your brand against potential threats of infringement that could harm your business.
The basics to know about what IP law can cover can be separated into four main areas: trademarks, copyrights, patents and trade secrets.
Simply put, the purpose of trademarks is to protect brands, whether that pertain to a word, name, logo, symbol, device or combination. If it is used to definitively identify the source of goods and services to purchasers, it can be eligible to be trademarked.
The ultimate point of trademarks in the marketplace is to give consumers the ability to weigh the reputation of the seller when making their purchasing decisions. For example, many consumers will automatically reach for a brand name cereal that they recognize from advertising and social exposure over a near identical off-brand product even if it is more expensive.
Unregistered trademarks fall under common law, so explicit infringement can be brought to court regardless of how much official paperwork there is.
That said, registered trademarks do enjoy certain advantages under the Lanham Act. These advantages include:
- Legal presumption of your ownership of the mark
- Ability to record your registered mark with U.S. Customs and Border Protection, preventing the import of infringing goods from foreign nations
- Right to use the federal registration symbol, recognized as ®
- Ability to bring action regarding the mark to federal court
- Use of U.S. registration as a starting point to obtain registration abroad
Ultimately, registered or unregistered, trademarks are a form of IP protection that are typically used by any established brand to maintain rights to unique features that define you in the marketplace.
Copyright law specifically pertains to art, whether it be visual art, music, movies, writing or some other creative form.
Since there are so many ways that artists express themselves and produce work, copyright law has a fairly vast domain and pertains to many different creators and individuals, whether or not they are deeply involved in the marketplace.
Under copyright law, the owner of the copyright has the sole right to reproduce and distribute copies of their work. They also have the exclusive right to perform or display it publicly.
To be granted this right, a person must have independently created the work in question and it must possess some form or degree of creativity. To have the copyright, the author does not need to register their work and simply needs to be able to prove (through timestamps, previous evidence of the creation, etc.) that they are the original creator. To sue another party for infringement, however, the creator must go through the registration process.
This law is extremely important to smaller artists in particular since it can be extremely easy for influential acts to pass the work off as their own without much concern of being caught. Also, with the digital age, it is becoming much easier (and more common) for small artists to accuse more influential people of stealing their work since they can garner attention and support through the internet.
This is one of the most basic levels of IP since it is pretty automatic upon physical creation of a work, but it is still one to pay attention to in case an instance of infringement does pop up and you need to think about legal action.
One of the most intensive and sought after areas of IP law is patenting, or seeking protection for an original idea or invention.
This area of IP law is a little more complex because there are many different kinds of patents. Different types of inventions will require different types of protection, so the processes for obtaining these protections will also be different.
The main goal of all patent types is to grant the inventor the full rights (or monopoly) to their invention for a limited amount of time. This gives them a chance to properly compete in the market without having their ideas immediately taken over by bigger competition with more resources, influence and experience.
Patents enforce this protection by protecting the inventor from infringement in the form of making, using, offering for sale or selling the invention throughout the U.S. or importing the invention into the U.S.
Some of the main types of patents are:
- Process patents: Protecting a particular process or method. It is usually laid out in a series of steps, and if the action is not performed in this order, the performer would not be infringing (which makes it difficult to enforce).
- Machine patents: This claims physical features, elements and functionality provided for users and is likely the most popular patent type.
- Composition of matter patents: This covers the molecular combination of elements that make up an entirely new substance (solid, liquid, gas or plasma). This is typically used with pharmaceutical products and inventions.
- Plant patents: Protecting specifically cultivated species of plants. This may seem like a peculiar and specific patent type, but it actually can be common, particularly with the growing legality and popularity of cannabis plants.
- Design patents: Protecting how an invention looks and appears. If the physical appearance of an invention is the main innovation, this patent should be pursued.
- Utility patents: Protecting how an invention functions. If the utility of the invention is the main innovation, this patent should be pursued.
Though an expensive and often grueling process, obtaining a patent is a huge achievement for an entrepreneur and is the foundation of any successful venture. Plus, it ensures that you get official credit for your invention and gives you peace of mind knowing it can no longer be easily stolen or patented first.
Upon receiving the patent, it is then the inventor’s responsibility to enforce as well as to decide if they want to use the patent to market their invention and build up their own business or if they want to sell the rights (a permanent decision) to another manufacturer for a guaranteed, set price.
Lastly, trade secret law protects valuable information that pertains to how you and your venture conduct business and make your products/services.
Whether your company’s methods were found through hard work and experience or through dumb luck, you have every right to want to retain that information and keep it secret. This form of IP law allows you to maintain that secret and possibly even take legal action against any individual or entity that breeches that trust.
Information can be as interesting as a secret recipe or as boring as a vendor list. All that matters is that it is a significant part of a business’s success and day-to-day function.
The best part is that trade secrets remain intact for as long as the secret remains a secret. If that secret is exposed, it becomes public knowledge and will no longer be considered protected.
The Importance of Patent Attorneys
As mentioned, you will almost definitely need professional advice and work during your IP journey, no matter how much research you do on your own.
Having a good, reliable patent attorney when filing for a patent, for instance, can make or break how your application is received. Since patenting is such an expensive process no matter how you go about it, it’s in your best interest to make sure you do it right.
Even if you are looking for simpler protections of things like logos or other forms of branding, a conversation with a patent attorney can be invaluable in knowing how to approach the situation. After all, years of study and professional advice will give them the insight to steer you in the right direction every step of the way.
A good patent attorney can cost around $200-$400/hr when hired, but they are a great resource to have even after having your protection granted. They can give advice on how to sell or enforce your patent as well, areas that you will undoubtedly face once you’ve reached that part of the process.
The good (and affordable) news is that most firms will offer free consultations to give you a basic level of advice on how to proceed with your situation. Taking advantage of these consultations will make it easier for you to not only know whether and how you should proceed with your idea and ambitions but also to make an informed and confident decision on who should represent you in your endeavors.
No matter who you are, if you are trying to market something, there is a fair chance that you may want to look into protecting that idea through IP law.
Depending on your needs, you may want to seek protection through trademarks, copyrights, patents or trade secrets. Many ventures seek protection through all four types for various aspects of their business!
Of course, the most important part of the journey is to make sure you have a conversation with a certified patent attorney so that they can give you advice and point you in the right direction. You may have to spend a fair amount of money to protect your ideas, but it will absolutely be worth it in the long run.