Starting and operating a business requires many substantial investments. In addition to money and time, business owners invest the ideas and plans that they bring into their new venture and that they create once it is underway. The term “intellectual property” covers numerous rights and interests that a business must protect in order to succeed. Federal law protects many types of intellectual property, and state law offers additional protections. Business owners and entrepreneurs can make use of federal and state laws to protect their important business assets.
Before discussing intellectual property, it might be helpful to consider how we define “property” in a legal sense. In short, “property” is anything that someone—a person, business, or other organization—can own, but that is not very helpful.
Owning property implies a set of rights, such as the right to use or dispose of the property. Perhaps the most important aspect of ownership, and therefore of property, is the right to exclude others from using the property. In the case of a motion picture, an owner might have exclusive rights to display or distribute the film, to modify it, to create works derived from it, or to use it for any other commercial purpose.
Protection of Intellectual Property
The World Intellectual Property Organization (WIPO) defines intellectual property as “creations of the mind.” Creative works, such as songs, books, and films, enjoy copyright protection under common law, and common-law trademark protection covers names, logos, and other designs used to signify a product or service. The federal government issues registrations for certain types of intellectual property that are often easier to enforce and that offer additional protections and benefits.
Federally Protected Intellectual Property
The federal government allows registration of certain types of intellectual property:
Copyright: Federal copyright protection is available for “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. This includes music compositions, music recordings, novels and other written works, films, and designs. It does not apply to mere ideas.
Patent: This applies to “any new and useful process, machine, manufacture, or composition of matter,” 35 U.S.C. § 101, which includes many inventions and designs for inventions.
Design patent: While a regular patent covers the functional aspects of an invention, a design patent protects its aesthetic features, known as “ornamental designs.” 35 U.S.C. § 171.
Trademark: A trademark is any name, logo, or symbol used in commerce to identify a distinct product. 17 U.S.C. § 1127. The term “service mark” is used to refer to names and logos for services, but “trademark” often refers to both products and services.
Trade dress: Federal law protects the visual elements of a product or service, such as the red-and-white color scheme uniquely associated with Coca-Cola products, by prohibiting acts that might create confusion as to the source of a product or service. 17 U.S.C. § 1125(a).
Contractually Protected Intellectual Property
Copyright, patent, and trademark laws address intellectual property that a business might want to make public. Information that a business wants to keep to itself is covered by laws protecting “trade secrets.”
In order to qualify for protection under New Jersey law, the information must have economic value to the business, which it would lose if it became more widely known. Additionally, the business must make reasonable efforts to keep the information secret. N.J. Rev. Stat. § 56:15-2. Businesses must take certain steps to safeguard this type of intellectual property, such as by requiring anyone with access to the information to sign a nondisclosure agreement (NDA).
Business law attorney Samuel C. Berger represents businesses, small business owners, and entrepreneurs in New York City and Northern New Jersey. We offer numerous fixed-fee legal-service packages that address a wide range of our clients’ legal needs. To schedule a confidential consultation with member of our team, contact us today online, at (201) 587-1500, or at (212) 380-8117.
More Blog Posts:
Protecting a Business Idea with New Jersey’s Trade Secrets Law, New York & New Jersey Business Lawyer Blog, May 21, 2015
Trade Secrets are Protected Under New Jersey Law, Offering Security for Small Businesses, New York & New Jersey Business Lawyer Blog, August 28, 2013
Five Legal Risks of Social Media for New York and New Jersey Small Businesses, New York & New Jersey Business Lawyer Blog, May 4, 2012