How Can I Protect My Work?

A question that all creators and makers have is “How can I protect my work?”.  The answer to that questions depends on the type of work you have created.

To give you a little background, I have provided a short explanation of the different kinds of intellectual property, but be careful.  The below does not constitute legal advise and whether you should or could apply for any protection is best to be discussed with an attorney.


So here it goes…
The Basics of Intellectual Property Protection

What is intellectual property?
Anything that the mind creates: (1) patents, (2) trademarks, (3) copyright and (4) trade secrets.

Patents protect invention (federal level), trademarks protect brand names (state and federal level) and copyright protects an artistic work (federal level).Patents last for 20 years and only provide the right to exclude and have the characteristics of any other property right.  Anything under the sun can be patented as long as it is new, useful, unobvious to one with ordinary skill in the process.  Patents do not cover ideas, mental processes, or laws of nature.  Patent protection begins with documentation.  Dates are very important, so document what is done on what dates to strengthen your case.  Having a patent does not automatically translate into value.  A provisional patent application is a less intensive document with a less expensive process in terms of filing and attorney fees.  Once filed, you have one year from the date of filing to complete full application.  This process allows time to test the market to invest in the full patent application process. (surveying, market research, etc)

Trademarks inform consumers of the source of a good or service.  The quality of a product can be inferred from the recognition of the trademark.  Trademarks gain value over time with the development of good will in the marketplace.  The company holding the mark creates its value.  Trademarks obtained by filing with the United States Patent and Trademark Office (USPTO), have to show that you will use the mark.  Otherwise, you can just start using the mark, but it is a good idea to register the mark to provide (1) proof of filing date (in the case of lawsuits), (2) constructive notice that mark has been made and is being used, and (3) proof that you have a valid mark (one that is approved by the USPTO).  Trademark last indefinitely as long as it is still being used in the marketplace.  Pursuing infringers is important because choosing not to do anything about it waives your ability to fight it in the future.  The trademark then becomes diluted, resulting in less value for the mark.  Protection is valid in the specific industry (or like industries) in which it is used or likely to be used.  Search trademark database, but actual approval from USPTO takes 10-18 months.

Copyrights protect works that are in a tangible form of expression; original works of authorship. Writings, graphics, music recordings, expressions of ideas, but not the idea itself, are protectable items.  Rights given under copyright include rights to copy, create derivative work, perform the work, display the work and distribute the work.  Each right is a separate right can be transferred separately.  Copyright protection lasts 70 years after the authors’ death for works created after June 1, 1978.  Registration is not required and protection begins at the time it is created, but there are significant benefits to registering the work.  Registering allows the ability to bring a lawsuit.  Registration can occur at anytime, even after one has found that infringing has occurred.

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