In the daily aspects of running your business and marketing, intellectual property (IP) infringement probably isn’t at the top of your list of concerns. However, failure to be mindful of copyright infringement can result in an enormous price tag and stress. In this piece, we’ll define the main types of IP and give you a few practical tips on how to avoid IP infringement.

4 Kinds of Intellectual Property

Understanding what IP laws protect can help you avoid infringement. IP can be categorized into 4 main groups: copyrights, trademarks, patents, and trade secrets, each with its own criteria and protections. A single piece of IP can fall into multiple categories.

Copyrights

The U.S. Copyright Office of the Library of Congress defines a copyright as “a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression, [covering] both published and unpublished works.” What this means in more basic terms is a copyright is any kind of creative work that you’ve put on paper or in a digital format. This category covers things like songs, novels, architecture, or movies. To create a copyright, all you have to do is create the work. However, registering a copyright offers more protections. Most often, this is the category that sees the most infringement from businesses.

Trademarks

A trademark “protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others”. These are items that help people recognize a brand as distinct, such as a logo, slogan, colors, or sound. You can create a “common law” trademark by affixing a to the end of something you consider trademarked, or you can register it for greater protection.

Patents

The U.S. Patent and Trademarks Office defines a patent as “the grant of a property right to the inventor, issued by the USPTO”. Any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.” Patents include machines, manufactured goods, industrial processes, and chemical compositions.

Trade Secrets

Lastly, trade secrets are any practice or process of a company that is generally not known outside of the company. For something to be legally considered a trade secret in the U.S. a company must take reasonable measures to keep the information secret, and the secret or its disclosure can give a competitive advantage. These are things like formulas, techniques, programs, or codes.

Ways to Avoid Intellectual Property Infringement

There are a few practices that can help you avoid IP infringement.

When it comes to using images and songs in your products or marketing materials, the best practice is to create your own. However, if you’ve hired someone to produce creative content for your business, make sure you have contracts governing the extent to which both parties can use the material. Some artists and writers may want to use some or all of the elements of a work they create for you in other projects. Clarify from the beginning who owns the work and how it can be used. You also want to make sure whatever materials your designer is using are properly licensed to your company, not the designer.

If a google search brought you to the image or element you’d like to use, beware. Just because you found it online doesn’t mean it’s fair game or fair use. Be aware of royalties, and don’t present it as your own work.

When creating your business name or logo do a trademark search and compare it to others. The standard used for whether or not you’ve violated a trademark is a “likelihood of confusion”. If your logo or slogan doesn’t match another’s exactly, it doesn’t mean you’re free from infringement.

When you hire a new employee, especially one with experience in your industry, be very clear about your expectations regarding trade secrets. Let them know you are not going to reward any violations of a prior NDA, and avoid conversations about previous employer’s practices. Things like customer lists, advertising plans, vendors, and growth strategies can fall under trade secrets. Do not encourage or allow new employees to share any of these from their prior companies.

How We Can Help

This blog is meant to be a general overview of the subject matter to help introduce business owners to IP concepts. Individual circumstances often have a great deal more nuance that require personalized counsel. If you have questions about registering your IP, or what to do if you’ve received a “cease and desist” letter, contact us at 714.456.9118 or send us an email at info@voneschlaw.com. We will help you take the next best steps for the health of your business.

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