One of your largest concerns as a business owner is likely how to protect your business assets. This is especially true for small businesses trying to survive in the shadow of Big Corporation XYZ. These could be a business name or slogan, a food recipe, YouTube show, or anything else the owners have created. A lot of time, effort, and love are invested into building them up.
Too many business owners fall into an all-too-common trap: waiting until they have an issue to protect their assets. We have had a lot of people come to us because there are 20 other companies copying their product or name. It is a lot easier to protect the business and its assets if the protection starts from the get-go.
What tools are available to help business owners in trouble? What can help small businesses protect themselves from poachers? There are a few, and they often get confused with each other. They all fall under the umbrella of “intellectual property”. This post focuses on trademarks, copyrights, and patents, and touches on a few other protections.
A trademark is a word, logo, brand, or phrase that identifies a business. Trademarks can be registered with the US Patent and Trademark Office or can be established by ongoing use. Registering your trademark is one of the strongest ways you can protect your business and brand.
Examples of trademarks: Just do it™, Nike™, Microsoft™, Taylor Nation™
Here are some of the most frequent trademark questions we receive:
Can I trademark my business name?
Yes, as long as you are (or soon intend to be) doing business with that business name. If you are looking to protect your business name, logo, slogan, or other brand name, registering your trademark is the way to go. You can technically get a trademark from continued use, but the protection isn’t as widespread as a registered trademark.
What is a trademark?
A trademark is a word, logo, brand, or phrase that tells consumers where there goods and services come from. So “shoe” isn’t a trademark, but “Nike”® is, because “Nike”® tells you what company made the shoes.
When can I use the “TM” symbol?
You can use the “TM” symbol on any word, phrase, or logo that is considered a trademark that isn’t already a trademark of someone else’s. It doesn’t have to be registered to use the “TM” symbol, but once it is registered, you can use the “TM” and “R” symbols (™ and ®)
Registering your trademark with the US Patent and Trademark Office gives you several rights:
- It notifies the public that you are the owner.
- It gives you the exclusive right to use the mark in connection with your goods and/or services. After registration, if another company comes along and tries to copy your name or benefit from your success, you have a big weapon in your arsenal.
- It gives you a presumption of ownership nationwide (not just where you are using it).
- It gives your company a tangible asset. If you are ever looking for investors or to sell your company, having a registered trademark is a big plus!
One huge bonus of a trademark: Trademark rights can last forever, as long as you keep up with your renewal paperwork. This is different from copyrights and patents, which we will talk about below. If you are thinking about trademark registration, please reach out for a free consultation.
“Copyright” might be the term you are most familiar with. Everyone sees the © at the bottom of most websites and in books, and the “Digital Millennium Copyright Act” warning at the beginning of movies.
Examples of what you can copyright: videos; photographs; literary works (books, poems, articles); performing arts (music, scripts, plays); visual arts (jewelry, artwork); digital content (websites, computer programs, blogs)
We receive a lot of questions about copyrights – here are our answers to some of the most common:
Can I copyright my business name?
No. Business names, slogans, logos, and the like are all trademarks.
What does it mean to have a copyright?
Having a copyright means that your creation is yours, and you have a legal avenue to pursue if someone tries to steal it.
How do you get a copyright?
Copyrights can actually exist automatically! Once you create something “copyright-able,” boom, a copyright exists and you are the owner of it. However, you can register your copyright-able works with the US Copyright Office for greater protection.
When can I use the copyright symbol?
You can use the copyright symbol on any original creations that are copyright-able.
As with trademarks, registering your copyright with the US Copyright Office can help because it puts you on record as the owner. As a side bonus, if someone tries to steal your registered copyright work, you might even be entitled to more money in a lawsuit (for statute damages and attorney’s fees). If you are thinking about copyright registration, or have more questions on how they differ from trademarks, we can help. Reach out for a free consultation.
Unlike trademarks, copyrights don’t last forever. You might have heard about previous copyrights becoming “public domain”. Copyright protection lasts for a specific amount of time (usually the creator’s lifespan plus 70 years). After that point, the copyrighted materials become public domain and others can use them without needing permission.
Patents protect inventions, like machines, industrial processes, chemical compositions, and so on. Unlike trademarks and copyrights, they don’t exist automatically. Patents need to be registered with the US Patent and Trademark Office to exist.
Here’s a quick “question and answer” session for the FAQs we see most frequently with patents:
Do patents expire?
Yes. Patents give the shortest amount of protection – patents only last for 15-20 years. So they can be very helpful for companies to gain their footing with a new invention before Big Corporation XYZ swoops in and tries to copy it. But they don’t protect the new invention for long.
What are examples of patents?
Some classics: the electric lightbulb, the barbie doll, the microwave (patented as the “Method of Treating Foodstuff”). Today, patents frequently come up in cellphone features and similar technological inventions.
How do I find patents?
You can search the US patent database at the US Patent and Trademark Office website
Other Ways to Protect Intellectual Property
If trademarks, copyrights, and patents don’t work for you, or you want extra protection on top of that, here are some other options for protecting your work. These all have to do with keeping your assets a secret, where possible.
Patents require the owner to describe the patent in detail, and they expire after a certain number of years. So, if you register a patent, eventually others will be able to copy you. If you want to keep a tighter grip on your invention, the alternative is to keep it a secret.
Confidentiality Agreements or NDAs (“Non-Disclosure Agreements”)
One of the most straightforward ways to keep something a secret is with an NDA. Have everyone who knows about your specific processes or inventions sign an NDA, such as employees, investors, or even clients.
Non-Competes, or Non-Competition Agreements
If you are in a position where someone is learning your confidential processes, inventions, or other information, it may be worth considering having them sign a non-competition agreement. They are not usually enforceable with employees (except very high-level employees), but they are usually enforceable against business partners.
What Can I Do Now?
Now that you know some of your options, the next step is to start taking advantage of them. Here are some steps you can take now:
- Make sure your business name and branding can become a registered trademark by obtaining a trademark search
- Apply for trademark registration to protect your business name
- Apply for copyright registration to protect any of your copyrightable creations
- Get agreements in place to protect your confidential business information
We at G & G Law, LLC® are here to help! Reach out now to schedule a free consultation.