Almost any kind of startup company is going to need to concern itself with intellectual property (IP) issues. In fact, some types of companies, such as software companies, live or die on the security of their IP. Entrepreneurs absolutely must understand the difference between the various types of IP and how to protect it. Confusing one type of IP with another can lead to disastrous consequences.
Copyrights protect “original works of authorship.” They may protect books, movies, poems, songs, architecture, and even computer software source code. Remember that copyrights do not protect ideas themselves, but only expressions of ideas.
A science fiction author, for example, might write a novel about time travel, and the novel might be protected by copyright. Another author who writes a novel about time travel would not necessarily infringe the first author’s copyright. That is because it is an author’s particular expression of the idea of time travel, not the idea of time travel, that copyright protects.
What Copyright Does Not Cover
You cannot copyright a scientific discovery. Darwin could not copyright the theory of evolution, for example, even though he could copyright his book on evolution, “The Origin of the Species.”
You cannot even copyright a work of authorship until it is fixed in a “tangible medium”. Telling a ghost story around a campfire, for example, does not confer a copyright until you write it down, record it, etc. Once you do this, copyright attaches automatically, before anyone other than you even knows of its existence. Certain works are considered too generic to copyright--a calendar, for example.
What is trademark protection? Well, the definition of a trademark is a mark that distinguishes your products or services from those of your competitors. McDonald’s golden arches are an example, as is the KFC slogan “finger-lickin’ good.” If you intend to found a startup, you are going to need a trademark to build consumer confidence in your product or service.
Your trademark is a symbol of consumer confidence in your product, and its value can be degraded if someone else uses it. If you protect your trademark, however, and if your product has a good reputation, your trademark will draw in customers who would otherwise pass you by. The following are some aspects of your business that are likely to need trademark protection:
- Brand names
- The name of your company
- Product lines
To ensure maximum trademark protection, you need to register your trademark with the US government.
Your startup business is likely to rely very heavily on patented technology, depending on the industry you are operating in. Patents protect concrete solutions to technical problems. They can protect:
- A process
- A machine
- A design
- A manufactured item
- Software (in certain cases)
To qualify for patent protection, the invention being protected must be new, useful, and non-obvious. Non-obviousness means an inventive step is required that would not be obvious to a technician working in the same field.
How Patent Protection Works
A patent prevents anyone else from exploiting your invention (without your permission) during the duration of the patent, whether or not the person who uses it profits from it financially. A patent grants you a temporary legal monopoly on the use of your invention, In exchange, you must publish its details for the public to see and (someday) use.
What Are the Differences?
Copyrights, trademarks and patents are three distinct varieties of intellectual property rights. The US Copyright Office administers copyrights, while the US Patent and Trademark Office (USPTO) administers patents and trademarks. The differences between these three types of intellectual property rights are stark, and in some cases a single item (software, for example) can be protected by more than one type of intellectual property right.
What Distinguishes Trademarks
Trademarks protect words, phrases, graphic designs, and other features that identify your products from those produced by your competitors.To enjoy protection, you must actually use them in commerce. You can enforce trademark rights in the area where you use them with no need to register your trademark. To enjoy nationwide or international protection, however, you must register your trademark with the USPTO.
What Distinguishes Copyrights
As stated above, copyrights protect original works of authorship. The work needs to be longer than a mere slogan, however. “Finger-lickin’ good” works as a trademark, but it is almost certainly too short to have the originality required for copyright protection. Unlike a trademark, you don’t have to use a copyright in commerce to enjoy copyright protection. You don’t have to register it either, but registration with the US Copyright Office does help you enforce your rights.
What Distinguishes Patents
Unlike trademarks and copyrights, patents protect inventions, not works of authorship or art. A patented work is typically a work of technology, such as a groundbreaking new pharmaceutical. Patent protection typically lasts only 20 years. Contrast that with copyright protection, which typically survives the death of the author by several decades, and trademark protection, which can theoretically last forever as long as you continue using it in commerce.
If you are an aspiring entrepreneur or startup, and you do not know how to protect your intellectual property, don’t panic. Contact Sequoia Legal at 303-993-0932 or contact us online for a free consultation. Our team has decades of combined experience in intellectual property law and in the broad spectrum of domestic and international business law that your startup likely needs.