Patents: Protecting Inventions

Patents generally protect inventions and certain improvements to existing inventions. A utility patent can protect a new and useful process, machine, article of manufacture, composition of matter, or improvement of one of these. A patent gives its owner the right to exclude others from making, using, offering for sale, selling, or importing the patented invention in the United States. This right lasts for a limited period of time in exchange for public disclosure of the invention and is a right to exclude others, not necessarily a guarantee that the patent owner can practice the invention.

Other types of patents include design patents, which protect new, original, and ornamental designs, and plant patents, which protect certain distinct and new plant varieties that are asexually reproduced. Choosing the appropriate type of patent is an important part of protecting an innovation.

Not every idea or invention is eligible for patent protection. Mere ideas, laws of nature, naturally occurring substances, and mathematical formulas generally cannot be patented, and an invention must meet legal requirements such as novelty and non-obviousness.

Trademarks: Protecting Your Brand

While patents protect inventions, trademarks protect the words, phrases, symbols, designs, and other identifiers that distinguish a business and its goods or services in the marketplace. They help consumers recognize the source of goods or services and allow businesses to distinguish themselves from competitors.

Trademark rights can arise through their use in commerce, even without registration. These common law trademark rights are geographically limited. Federal trademark registration provides broader protection and can establish rights throughout the United States and its territories.

Protection is not limited to traditional names and logos. In some circumstances, sounds, colors, and other nontraditional identifiers can also function as trademarks. For example, the distinctive MGM lion’s roar, the Pillsbury Doughboy, and Tiffany blue have all received trademark protection.

Trademark infringement is a form of unfair competition. Federal trademark law generally protects against unauthorized use of the same or a confusingly similar mark in connection with the same or related goods or services when that use is likely to cause confusion about their source.

Copyrights: Protecting Creative Works

Copyright protects original works of authorship, including artistic, literary, and creative works such as:

• Literary, musical, and dramatic works
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Motion pictures and other audiovisual works
• Sound recordings
• Computer programs
• Certain architectural works
• Compilations and derivative works

Unlike patents, copyright protection generally arises automatically when an original work is created and fixed in a tangible form. For example, a songwriter generally obtains copyright protection when an original song is recorded, while an author obtains protection when an original work is written down.

That means registration is not required for copyright protection to exist. However, registering a work with the U.S. Copyright Office provides important advantages and, in general, is required before the copyright owner can bring an infringement action involving a U.S. work. Registration can also provide access to certain statutory damages and attorneys’ fees when applicable requirements are met.

Copyright protects the expression of an idea, not the idea itself, and a work must contain sufficient originality to qualify for copyright protection. A basic shape, common phrase, or other work lacking the necessary originality may not qualify.

Which Type of Intellectual Property Protection Do I Need?

There is no one-size-fits-all form of intellectual property protection. A business may have a logo protected by trademark, proprietary technology protected by a patent, and original website content protected by copyright. In some cases, the same asset may qualify for more than one form of protection.

Different forms of intellectual property can protect different aspects of the same product or property. For example, an iPhone’s design may be protected by design patents, while the Apple name and logo are protected as trademarks. Similarly, Toy Story demonstrates how trademarks and copyrights serve different purposes: the name and associated branding can function as trademarks, while the films, artwork, and other creative works may be protected by copyright.

For that reason, intellectual property protection should be considered as part of a broader business strategy rather than as a single decision about if something can be “trademarked.” Identifying the intellectual property your business owns, understanding available protections, and taking the steps to preserve those rights can help protect some of your business’s most valuable assets.

For more information, or to seek counsel from our Intellectual Property practice group, please reach out to request a consultation or call us at 216-696-1422.

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The information contained in this blog post is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

The post Intellectual Property Protection: Patent, Trademark, or Copyright? appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.

• Trademarks (words, logos, symbols, colors, sounds) associated with the company, product, or service;
• Packaging for a product;
• Creative works (e.g. user manuals, website design, marketing materials, etc.) associated with the company, product, or service;
• Uniforms worn by employees;
• The look and feel of your place of business; and/or
• The design of the product itself.

Branding is critical because it encourages customer loyalty, indicates a high level of quality, and is a source of goodwill and increased value for your business. 

Risks of Not Branding Your Business

Without effective branding, your business and your goods or services are just a generic offering that provides no recognition and does not encourage customer loyalty or repeat business. This often results in one-time transactions, a diminished likelihood of repeat sales, and a reduction in the overall value of your business.

Benefits of Branding Your Business

With the proper branding, consumers come to associate you and your merchandise or services with a particular level of quality. Such “brand association” fosters customer loyalty, encouraging repeat business and boosting referrals. Establishing a brand is an effective way for building a business reputation, enhancing customer awareness and loyalty, increasing the value of your business, establishing credibility and trust with customers, and increasing the effectiveness of marketing efforts.

Establishing a Business Brand

Before you decide on your business brand, you must be certain that it is available for your use. It is vital to reach out to an intellectual property (IP) attorney to research the availability of the brand, as this research can be very nuanced and intricate. If clearance is given from experienced IP counsel, you can feel more confident in dedicating the time, effort, and resources to establish your brand. Establishing your brand may involve securing one or more rights, including:

• Registering a company name with the with the secretary of state;
• Obtaining a trademark registration in your state as well as with the United States Patent and Trademark Office;
• Securing copyright protection for your creative materials;
• Entering business contracts with suppliers, licensees, or distributors to control the branding of the products or services,
• Registering an internet domain name, and
• Attaining a design patent on a product design.

The more of these rights you establish, the better equipped you will be to protect your brand from infringement by others. It is important to engage an experienced intellectual property lawyer who can assist in determining which of these brand-building protections apply to your brand, and can assist in securing the broadest protections possible.

Brand Protection

Once you have established and secured rights in your brand, you now must protect it so that competitors cannot improperly use it and benefit from your goodwill.

The first step in protecting a brand is using it. If you do not use or control the use of your brand, especially for a trademark, you may lose the right to exclude others from using it.

The next step is to monitor the use of your brand (or similar brands) by others. This may include monitoring competitors’ business activities, monitoring trademark applications filed with the USPTO for similar trademarks, keeping abreast of the relevant industry and trends, etc. A trademark watch can be established for this purpose.

The third step is to enforce your rights against infringers. If you do not stop brand infringement, your rights in the brand may be lost with respect to this and other infringing parties. If you find yourself a victim of brand infringement, it is advisable to hire a lawyer to contact the infringing party. Through the counsel of an attorney, a demand to cease the infringement should be made, settlements for any damages caused by the infringement should be negotiated, and if necessary, a lawsuit should be filed.

In summary, establishing and implementing strong branding creates an impactful connection between you and the consumer. This connection not only enables you as a business owner to charge a premium for your goods or services, but it directly contributes to increased profits and the overall value of your business.

If you want to establish a brand, have questions about branding, or if you want to seek counsel from our Intellectual Property practice group, please reach out to request a consultation or call us at 216-696-1422.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

The post Protecting Your Brand From Competition appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.