The Importance of Protecting Your Company’s Intellectual Property

Your business’s intellectual properties are some of its most valuable assets. Intellectual property laws protect your organization’s ideas, concepts, inventions, and more against infringement by others. Though it’s often put on the business law “back burner,” intellectual property should be safeguarded as the critical company asset it is.

Business Law 101: What Is Intellectual Property?

Intellectual property includes copyrights, trademarks, patents, and trade secrets.

Copyrights

A copyright protects original creative works of authorship, including things like books, blogs, computer programs, photographs, and other images, paintings, musical compositions, sound recordings, movies and videos, architectural works, and more.

Some items not considered creative in relation to intellectual property law include names, titles, short phrases, and slogans. Common symbols and mere listings of contents or ingredients are also not considered creative.

In short, a copyright protects expression, not ideas, methods, concepts, processes, or discoveries.

We’re often asked if a company can be a copyright owner. The answer is yes—the law permits company ownership through what’s known as “works made for hire,” or works created by employees within the scope of their employment. The law also applies to certain independent contractors owned by a company.

Some of the exclusive rights copyright law provides include:

• Reproduction
• Derivative works
• Distribution by sale, transfer of ownership, or license
• Public performance or display

Works created on or after January 1, 1978, have a “copyright term of life” that includes the life of the creative author plus 70 years after their death. Works made for hire have copyright protection for 95 years from publication or 120 years from creation, whichever’s shorter. Though it exists automatically, you can enhance copyright protection by registering a work.

Trademarks

Trademarks are how customers or clients recognize your business. They can be any word, phrase, design, symbol, or combination of these things you use to identify your products or services. Most people use the term “trademark” to refer to trademarks and service marks, but, under the law, a “trademark” is used for goods while a “service mark” is used for services.

Once you have a trademark, you can use the symbol that applies to your offering:

• ™ for goods
• ? for services
• ® for a registered trademark

Trademarks have many benefits, including:

• Identifying the source of your products or services.
• Providing a brand’s legal protection.
• Guarding against fraud and counterfeiting.

In general, unique words or phrases are easier to protect and more likely to qualify for trademark protection. For instance, “Nike” is a more unique mark than “Universal Running Shoes Company.”

It’s critical to protect your company’s trademarks by actively pursuing anyone who infringes on them. Otherwise, the mark could become generic in the public’s mind (think “Band-Aid”) and result in you losing the mark.

Patents

Patents are government-granted monopolies to build, sell, and use your invention while preventing others from doing so. The three types of patents you can file for are:

1. Utility patents are effective for 20 years and are granted to anyone who invents or discovers a new and useful process, machine, article of manufacture, composition of matter, or any new and useful improvement thereof.
2. Design patents are good for 14 years and can be granted to anyone who invents a new, original, or ornamental design.
3. Plant patents expire after 20 years and are granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

Once a patent expires, anyone can copy, build, and sell your invention.

You must pay yearly or regular fees to maintain a patent, so they can be expensive. Keep in mind, too, that a patent is only good in the country where it was granted, so you might be obligated to obtain patents in other countries.

Trade Secrets

Most businesses have some level of confidential information, but not all of it is considered a trade secret. Trade secrets are typically:

• Something not generally known to the public.
• Where “reasonable efforts” are made to keep it confidential.
• Confer some type of economic value from the information not being known by another party.

Typical trade secret examples include new business models, marketing strategies, customer and vendor data, and other confidential business information. What constitutes a trade secret varies from state to state; in Florida, a trade secret is defined as:

“Information, including a formula, pattern, compilation, program, device, method, technique, or process that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”

Even if you have plans, processes, or formulae that you don’t want your competitors to have, if the company doesn’t take appropriate steps to keep that information confidential, it can lose the ability to claim such items are trade secrets. For example, if the company has handed out copies of its future marketing plans to customers without any type of non-disclosure agreement in place or failed to label the plans as “confidential,” the plans may not be treated as a trade secret.

Courts generally look at the following factors to determine trade secrecy:

• The extent to which the information’s known outside of the company.
• Measures your business has taken to guard the information’s secrecy.
• Value of the data to your competitors.
• The extent to which the information’s known throughout the company and its partners.
• Money and effort spent by your business to develop the information and how easily others could duplicate it.

The Importance of Protecting Your Organization’s Intellectual Property

Intellectual property protection fosters innovation and allows your company to reap the full benefits of its inventions and other intellectual pursuits. It can be critical to the core products or services your business offers and integral to your company’s long-term viability.

When you have a great idea for a product or service, it’s inevitable someone else will want to duplicate your success and sell your ideas as their own. Protecting your intellectual property under patent, trademark, copyright, or trade secret law ensures you maintain your rightful market share, a crucial element in growing your business.

If you believe your organization’s intellectual property has been infringed upon, it’s important to speak with a business law attorney about your rights and remedies under Florida law.