A 3-Part Blog Series
As a business coach and licensed attorney, I get a lot of questions about the laws around intellectual property as it relates to how business owners can use information, ideas, and concepts and apply them to their business – legally. In a recent MasterClass session, the topic of intellectual property came up, which prompted me to do a podcast on the topic, and I also wanted to share that information here.
This multi-part article will ultimately answer several common questions I am asked about intellectual property.
Part 1: Intellectual Property 101:
What is intellectual property, and how is it protected?
What is a copyright, and what do I need one for? Do I need one at all?
What is a trademark, and do I need one for my business?
Part 2: Rules Around Using Learned IP
What can I advertise, share, or teach that I have learned elsewhere, legally?
Part 3: Legal Entities 101
I was told to be in a specific entity type, such as an LLC or a Corporation, and I am, but I don’t really know why. What are the differences between them, and why might someone choose one type over another?
What do I need to know as an owner of a specific entity type regarding my taxes?
How do I stay in my entity, and how do I stay protected?
Part 1: Intellectual Property 101
Before discussing specific types of intellectual property and ways to protect it, let’s define the term. Although the term is fairly self-explanatory, I’d like to clarify its meaning a bit further, which requires first briefly defining the three protected property types.
Main Categories of Property You Can Protect
Personal Property
Your personal property refers to all the physical personal items that you own, like your cell phone, computer, vehicle, etc. When relating this to a business, you might think of business equipment, such as company vehicles, printing equipment, construction equipment, office equipment, etc.
Real Property
Real property refers to the physical lawn, dirt, and trees my house sits upon. In this country, we have rights to real property. Again, regarding business, this might mean your office building that you own outright.
Intellectual Property
Luckily, in our country, we can also protect ideas that come from our brains and treat them just like you would personal or real property as long as we follow the rules and laws specifically for the type of intellectual property looking to be protected. The best way to think of intellectual property is to put it in the same category as real property or personal property, each with its own designation within the law. While intellectual property is not always a physical thing, there are four main types of intangible assets (intellectual property) that someone can protect.
Types of Intellectual Property
Some of the core types of intellectual property we talk about in business include the following:
Patents
Patents are property rights for investors that allow inventors exclusive rights to their inventions, which means they can sell, loan, or give the invention away. The invention could be physical or a design, process, or improvement to an existing product.
Trademarks
Trademarks are words, visual symbols, phrases, or other graphic representations that distinguish a product or service from others in the market. Other terms for a trademark are “service mark” or “trade name.” You might also hear the term “trade dress,” which refers to the aesthetic, design, and decor of the overall brand experience, generally relating to retail or restaurant environments. People protect their trademarks so that others can’t use them.
Copyrights
Copyright is neat in that the moment the person who created the thing owns the intellectual property to it. It is automatically protected when you make it. Typically, if someone works for an organization, the organization owns the intellectual property unless there is a specific agreement by the creator that indicates they own the copyright to the property.
Trade Secrets
Trade secrets can include technical information about organizational processes, such as Coca-Cola’s drink formula, client or supplier lists, marketing and advertising strategies, etc. Companies often opt to protect these things, by keeping them secret, so their competition doesn’t know how they do what they do.
Do I Need an Official Copyright?
As stated above, you don’t always need to file and register your copyright paperwork for the information you produce and publish to be protected, such as printed or digital publications, designs, reports, etc. They are protected as soon as you create them.
However, if you have the resources, meaning money, to copyright everything you create officially, you may choose to do so. And, if you are an independent contractor providing intellectual property to an organization, you may create a contract specifying who owns the copyright to the property.
Do I need an Official Trademark for My Business?
The answer is the famous legal answer of “It depends” and is more complex, but ultimately, the answer is…not necessarily. Some questions to consider before investing (money and time) in a trademark include:
1. Do you plan to use this trademark for a long time, or might it get outdated fairly quickly?
2. Are you worried that someone will steal it? Is it worth it to you not to have that happen?
3. Have you always just wanted one?
Let’s say you just want one, or that it makes sense for your business to have one. Here are some things that are neat to know.
You cannot trademark standard or generic words used in everyday language, such as the word “orange” or “table,” by themselves.
Sometimes, trademarks are established and then abandoned, known as “dead marks.” If you find a dead mark while pursuing a trademark, you may consult a trademark attorney to see if it’s possible to purchase the trademark. However, it will likely cost you.
In most cases, trademarks aren’t something you need to worry about, especially if you are a smaller business that will likely undergo many changes over the years. However, if you have goals of growing your organization and want to ensure your business name, logo, and other brand identity aspects are fully covered, you may consider going through the process of getting a trademark.
If you do decide to get a trademark, I highly recommend you reach out and connect with a trademark attorney who can help you with this process. It is not necessarily hard, but it is a detailed process, and you’ll want a professional to guide you.
Stay tuned for Part 2: Rules Around Using Learned IP!
In Part 2 of this article series, we’ll dive into the topic of using things you’ve learned through reading books, taking courses, or attending lectures where someone introduces an idea that you want to use in your business.
Can’t wait for the article? Check out podcast episode 15: The Most Common Trademark and Copyright Questions: Asked and Answered!
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