What exactly is IP? No, it’s not your IP address..
For so many, the term “IP” is a part of everyday life, but most Americans may only have the vaguest idea of what the term actually means. No, the IP I’m referring to is not your IP address that identifies your computer network. Be it in news reports, common usage, or in the disclaimers on many products, “IP” impacts our lives on a daily basis and in many ways we don’t even consider. The IP I’m referring to is intellectual property. Intellectual property is an intangible creation that may be protected with a trademark, copyright or patent. When you’re a creator, this is the most important type of protection you may ever need to be concerned with. Below is a brief explanation of the types of intellectual property and where you might see them.
Trademarks
Trademarks are probably the most recognizable type of intellectual property. Trademarks protect everything about one’s brand. Besides a brand name, logo or slogan, a business may also protect any unique services or products within their business. Popular trademarks include names like Hilton Hotels, Pepsi Cola, and other brands that are quickly recognizable to the average consumer. This is how many know, value, and estimate what a product can deliver and the brand’s consumer promise. However, this is not limited to proper names, as slogans and logos are also subject to trademark protection. No matter the trademark, brands have a compelling reason to ensure that their intellectual property is protected. Diluting a brand or allowing competitors to imitate it can lead to a loss of business, dilution of vale, or other negative consequences for the business.
For example, sportswear company Nike has not only trademarked its name, but Nike has also trademarked its iconic “Swoosh” logo, and its perhaps even more memorable slogan “Just Do It.” These memorable marks distinguish its products or services from the competition and are protected by federal law. These are not the only ways in which a business’s identity is protected.
Trade Dress
The iconic red can used by Coca-Cola. A black, red, and yellow color scheme representing a famous cartoon character. Silver, red, and blue colors on the fuselage of a plane. All of these are examples of trade dress, that is, the identifying atmosphere or appearance of a product, service, or location that calls to mind a certain company in the consumer’s mind. As a form of trademark protection, a business or individual can file for trade dress protection to ensure that its likeness is not used in a manner detrimental to them by a competitor.
For many trade dress cases, one of the crucial elements will be how an ordinary consumer distinguishes a potential infringer’s product from that of the original trade dress. There are also other factors at play. For example, brands with prominent labels on their products are probably less likely to prevail given that the name is up front. A soft-drink manufacturer is likely safe using a plain red can and would not run afoul of Coca-Cola as overt branding is such an integral part of their trade dress. Other brands with more discreet logos might be more successful in stopping a competitor however.
Trade Secrets
For many businesses, even more crucial than the branding is the trade secrets which ensure they are able to do what they do. The secret formula for your favorite soft drink? Trade secret. The exact workings of your favorite theme park’s new, state of the art ride? Trade secret. How an airline decides what routes to fly and how to price their fares for difference classes of service? Trade secret. All of these are examples of what a business likely considers their competitive advantage: a way of working that sets them apart from their competition which, if exposed, would harm their business.
However, trade secrets don’t need to be as scientific as a multi-billion dollar soft drink formula. If you own a local calligraphy store and have a method of creating and applying ink so it has a distinctive look on cards or other materials, that can also be considered a trade secret. If you are a screen printer and print on your clothing a certain way, that may be considered a trade secret. On the other hand, even if your business considers something a secret, if the process is in common usage – such as brewing coffee using water and coffee grounds – it likely does not qualify as a trade secret. The secret or distinctiveness would lie in the amount of coffee and water combined or how it is done.
Copyrights
Much like a trademark, a copyright is a legal protection for a piece of work. This is typically referred to generally as “content.” Be it a novel, non-fiction book, pamphlet, treatise, or other document, song, work of art, website content, or other original content of a creative nature, it is all protected with a federal copyright. Copyrights ensure that any person who wishes to use all or part of an author’s work needs the author’s permission and, in some cases, may have to pay a fee or other financial compensation in order to use the author’s work for their purposes. Copyrights are also useful in helping preserve an author’s control over where their work appears in case there are concerns of use by individuals or groups who do not reflect the author’s brand or values.
For example, if a publishing house wished to compile the ten best chapters of fiction from all time into one book, they would have to reach out to each individual copyright holder for each chapter and secure their approval. This is also the case with songs and other works of art which must be licensed in order to be used legally. Again, this often includes paying a license fee to the copyright holder.
Patents
Patents are what many people think of when they think of intellectual property law. There are three types of patents: utility, design and plant. Each type has its own rules for eligibility, and some inventions may fall under more than one type. Patents allow for the legal protection of the first person of an invention. This allows them to, in effect, have a monopoly on the market in exchange for disclosing how their invention works.
For example, many pharmaceutical drug makers enjoy exclusivity in the market for a number of years before generics are introduced after their patent expires. The purpose of this is to reward the inventor for their hard work and allow them to recoup the money they spent on the invention.
Intellectual Property and You
No matter what aspect of IP law impacts you directly, it’s always a good idea to consult with an experienced attorney who can help guide you. Whether it be filing for copyright protection for your brand new novel to help determine whether a competitor is using suspiciously similar content, speaking with a lawyer will help determine your best course of action so your intellectual property can be protected and you can reap the benefits of your hard work.
You can reach Andrea Sager by email – andrea@andreasager.com.
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