It’s hard to think of a business where intellectual property does not play a role. No matter what the industry or line of business, whether local or global, retail or manufacturing, intellectual property can be essential to business growth and success.
While large companies typically have vast resources dedicated to IP protection, intellectual property is equally important to many smaller enterprises and entrepreneurs. The two most common forms of IP protection for smaller companies are copyright and trademarks.
When a business wants to immediately associate its products or services with the business, the best way is to identify them with a trademark for products or service mark for services. A recognizable trademark is critical to developing brand recognition, reputation and loyalty, and can be an extremely important asset.
While related to the trademark or service mark, branding is not the company logo, corporate colors or advertising tag line. However, a company’s identity is associated with its brand. So without protection, the trademark or service mark encompassing the brand may be copied or distorted, which causes confusion in the marketplace, compromising brand loyalty and the value of the brand. Brand integrity is why companies, like Nike which protects the “swoosh mark,” are diligent in such matters. The importance of establishing, monitoring and guarding trademarks to avoid confusion and protect the brand cannot be understated.
Although federal registration of a mark is not mandatory, it has several advantages, including notice to the public of the registrant’s claim of ownership of the mark, legal presumption of ownership nationwide, and exclusive right to use the mark on or in connection with the goods/services listed in the registration. Trademarks must be used to maintain rights. Abandonment through nonuse can occur when a brand owner stops using the mark.
Good information on the filing of trademarks can be found on the USPTO website at www.uspto.gov. Although not definitive, an applicant can check there for other similar marks prior to filing in order to avoid potential disputes. While not required, most applicants use trademark attorneys for legal advice regarding use of their trademark, filing an application, and the likelihood of success in the registration process, since not all applications proceed to registration.
Copyright protects an author’s original and concrete expression, including not only books, songs and artworks, but also websites, computer programs, manuals, newsletters, technical publications and drawings, building designs, and promotional and advertising materials. An author has a copyright the moment his or her original work is fixed in a tangible medium of expression. A copyright gives the owner the right to reproduce, distribute, publicly display, and prepare other works based upon the copyrighted work. While copyrights do not need to be registered immediately, it is advisable to do so for works of higher importance and potential value. Copyright registration is a prerequisite to bringing a lawsuit for infringement.
The use of a copyright notice is no longer required; however, it is beneficial because it provides notice to would-be users that the work is copyright protected. A good rule of thumb is to include the copyright symbol, the year of first publication, and the name of the owner. If notice of copyright appears on the published copies to which a defendant in a copyright infringement suit had access, then no weight is given to a defense based on innocent infringement in mitigation of actual or statutory damages.
Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed, if the work was properly registered within three months of first publication. In addition, an infringer of a work may be liable for the attorney’s fees incurred by the copyright owner to enforce his or her rights.
An attorney is not necessary to file an original claim to copyright with the U.S. Copyright Office. The website copyright.gov provides information and forms.
Most companies in which employees produce potentially copyrightable work as part of their normal job duties require those employees to sign an agreement that any works they produce while employed by the company are owned solely by it. If an independent contractor produces copyrightable work for the company, a license agreement should set forth exactly what IP rights the contractor is transferring to the company in exchange for payment and exactly what rights are being retained.
Understanding intellectual property is more critical than ever for small business owners, especially since works are so easily copied through the Internet. It’s important to consider the role intellectual property plays in achieving short and long term goals and obtain proper protection to enforce IP rights.