Starting a new business requires extensive planning, with regard to both the product or service that the business will offer and the structure and operations of the business itself. Protecting the new business’ assets is critically important, and this applies not only to its physical assets but its intellectual property as well. The brand names, logos, designs, business plans, and other creative works used by a business are all examples of intellectual property. State and federal laws provide multiple ways to protect a business’ intellectual property rights, but business owners must first understand the different types of intellectual property and the laws that protect them.
It might be easiest to define intellectual property in relation to other types of property:
– Real property includes land and attached structures, such as houses and office buildings.
– Personal property refers to movable property, such as a pencil, coffee mug, computer, car, or refrigerator.
– Intangible property may include financial instruments like securities, although cash is often considered personal property.
– Intellectual property, while also intangible, generally refers to the results of the creative process, such as designs, photographs, written works, and computer code.
A central element of the legal concept of “property” is exclusivity, meaning that the owner of property has the right to exclude others from its use. Similar to a landowner’s right to remove trespassers, the owner of intellectual property has the exclusive right, in most circumstances, to use the property or to license its use by others. They can petition a court to order someone else to cease and desist from infringing on their rights and to award damages for the infringement.
The three best-known forms of intellectual property, based on the type of legal protection available, are trademarks, copyrights, and patents.
Logos, designs, and names directly associated with a business, product, or service are known as trademarks or service marks. For example, the product name Coca Cola and its associated logo are both trademarks under federal law. The U.S. Patent and Trademark Office (USPTO) handles the registration of trademarks.
Copyright protection is available for original “works of authorship,” such as books or articles, songs, photographs, drawings, paintings, and sculptures. In the business context, it applies to business plans and related documents, and it often applies to computer code. Ideas are not, by themselves, eligible for copyright protection. The idea of a movie about two brothers with an affinity for blues music, for example, cannot be copyrighted, but the movie The Blues Brothers can be. The U.S. Copyright Office, part of the Library of Congress, is responsible for registering copyrights.
Patent protection is available for inventions and, in some cases, discoveries of “any new and useful process, machine, manufacture, or composition of matter.” This can include new inventions, significant modifications to an existing invention, and new processes. New computer chip designs are an ongoing subject of patent applications. In some situations, patent protection is available for computer code instead of copyright.
The process of applying for a patent is typically more complicated than those for trademarks and copyrights, since it requires technical descriptions and diagrams, followed by an extensive review—including comparisons to existing patents—by the USPTO.
Business attorney Samuel C. Berger represents businesses, business owners, and entrepreneurs in the New York City and Northern New Jersey area. We offer fixed-fee legal-service packages that cover a wide range of legal matters and allow us to find a way to meet our clients’ needs. To schedule a confidential consultation to see how we can help you, contact us today online, at (201) 587-1500, or at (212) 380-8117.
More Blog Posts:
Federal Administrative Board Dismisses Allegations of Fraud in Trademark Application, New York & New Jersey Business Lawyer Blog, February 4, 2016
How Intellectual Property Law Can Help New York and New Jersey Businesses Protect Their Products and Services, New York & New Jersey Business Lawyer Blog, January 21, 2016
Intellectual Property Rights and Monetary Value of Business Social Media Accounts, New York & New Jersey Business Lawyer Blog, March 27, 2014