Many business people, entrepreneurs, and creatives have an idea but are unsure how to keep it from being taken by someone else. A business owner might have a unique method to manufacture a device. An entrepreneur might have a unique business name they want to turn into a national brand. A creative person might have created artwork or a book. Each of these people has developed valuable content, and each of them is due credit for their work. When someone has taken the time to develop an idea, it can be frustrating and painful if that idea is taken.
When it comes to intellectual property protection, there are four basic strategies to protect an idea. The strategies include a patent, trademark, copyright, and trade secret. Some of the strategies are expensive and others are not so expensive. There are other techniques, strategies, and combinations to protect an idea; the following focuses on describing the four basic strategies.
1. Trade Secrets
Trade secrets are generally the least expensive strategy to keep an idea from being taken. A trade secret only works if your idea does not need to be publicly disclosed or presented. If you had a device you wanted to sell at an exhibit, the trade secret strategy would not work for you. However, if you had a method to manufacture a device you sell at a trade show, your method could be kept a trade secret. Trade secrets are essentially secrets that are kept following legal guidelines. An idea must have an economic benefit and is being actively kept secret to be a trade secret. When the legal guidelines are followed and someone somehow illegally steals the trade secret, a trade secret holder has various remedies, including injunctions and monetary damages. Examples of trade secrets include the recipe for Coke or the recipe for WD-40.
Another related strategy to protect an idea is the use of contractual rights. For example, suppose you have an idea you want to share with another party. In that case, you could use a contract such as a nondisclosure agreement to share the idea if the other party agrees to keep the idea confidential. Nondisclosure agreements are certainly a good practice to follow when disclosing confidential information, but be aware that such agreements can be subverted.
Copyrights are generally the second least expensive strategy to protect a piece of work. if an author was to register a copyright with the U.S. Copyright Office, the author could do it for as little as a $45 filing fee. Hiring an attorney to register a copyright on your behalf can still be relatively inexpensive Copyrights are most commonly used by artists, authors or other content creators.
Copyrights are the right to control the reproduction, publishing, selling, or distribution of work in a matter and form. The work protected with a copyright is some creative form of expression fixed in a tangible medium. Even if you don’t register a copyright with the U.S. Copyright Office, you still have common law rights. Registering a copyright provides significant additional rights to bring legal action against those who illegally copy your work. Examples of copyrights include a book, a rendition of a musical song, or a painting.
Trademarks are generally the second most expensive strategy to protect an idea. Trademarks are the ability to prohibit others from using a name, design or expression that defines the source or the brand of a product or service. The mark must be distinct to be granted a trademark by the United States Patent and Trademark Office. There are four levels of distinctiveness which include: fanciful, arbitrary, suggestive, and descriptive. Merely descriptive trademarks cannot be trademarked. Like copyrights, a person does not need to register a trademark to have limited trademark rights. Examples of trademarks include a business name, a logo or a slogan.
Patents are generally the most expensive and intensive strategy to protect an idea. Trade secrets and patents are similar in that they can protect many of the same types of concepts. For example, a party could choose to either pursue a patent or keep a trade secret on a method. If you expect you cannot keep the idea a secret, then a patent may be the better option. If you can keep the idea a secret, a trade secret strategy may be a better approach. Patents generally last for twenty years, while trade secrets can last forever.
Patents are the ability to prohibit others from making, using, or selling a concept. A person can obtain a patent on virtually (with some limits) any novel and nonobvious concept. The patent application has many other submission requirements, such as properly disclosing the idea and the idea must fall into the parameters of a patent-eligible concept. A few examples of ideas that can be patented include a new type of window, a new method to install a window, a new type of material for window panes or a unique shape comprising the window frame. There are also patent types that cover designs and plants but are much less common.
Fargo Patent & Business Law is an intellectual property and business law firm. We are always happy to talk to you if you have questions about trade secrets, copyrights, trademarks, patents, or other intellectual property issues.
The information provided in this article does not and is not intended to constitute gal advice. All information, content, and material are for general informational or educational purposes only. Information provided may not be the most up-to-date legal information, and it is recommended that readers contact their attorney to obtain advice on any particular legal matter.