Intellectual Property 101: Patents and Trademarks

Patents, Trademarks, Servicemarks and Copyrights

Funky-Move Turtles Lohmar v X-Turtles Lohmar - Segway Polo Friendly Match
Segway is protected by a patent, and the makers of Segway would have a solid legal basis for going after an imitator for a lot of money. Bongarts/Getty Images / Getty Images

Ideas are a difficult thing to protect because they are so easily imitated or copied. We don't yet live in the world of Star Trek where you can just have a replicator instantly make you an exact duplicate of physical things like a cup of coffee or some exotic alien delicacy, but we can easily duplicate the ideas of others, such as copying a piece of written material, using a similar brand name, or creating a product in imitation of someone else's product.

Products take time to develop and bring to market. Once a product has been developed, it can be imitated in a fraction of the time. It would be easy for other companies to create competitive products or services within a very short period of time. For example, consider the recent "employee discount" advertising campaigns from the major auto manufacturers. General Motors came up with the idea, but Ford and Chrysler had imitated it within a couple of weeks after the GM campaign started. Advertising campaign ideas generally aren't protectable intellectual property.

On the other hand, consider the innovative Segway transportation device. Once the very first one becomes publicly available, it would have been very easy for someone else to disassemble one, see how it was made, and start building less expensive imitations. That hasn't happened and won't happen anytime soon, because the Segway is protected by a patent, and the makers of Segway would have a solid legal basis for going after such a competitor for a lot of money.

"Intellectual property" refers to those ideas that can be considered "owned" by an individual or company and are therefore protectable under the law. The intent of intellectual property law is to encourage innovation by giving the creators of new ideas ample time to profit from their ideas and recuperate their development costs.

In theory, your intellectual property is protected under the law from the moment you create it, assuming someone else hasn't created it first (and even then in some circumstances). However, making the case in court may be very difficult if all you have to go on is your own records. Intellectual property registration exists so that you can make an official record of your ideas and more easily protect them should a conflict ever arise.

The three basic forms of intellectual property protection are:

  • Patent - Patents protect an invention that is "novel" (new and original) and "nonobvious" (to someone with technical expertise in the field of the invention). This has traditional been primarily used for physical devices (machines, electronics, certain manufactured goods), but has recently been applied to more abstract concepts, such as computer software algorithms or business processes.
     
  • Trademark - Trademarks protect your brand, i.e., the name of your company or a specific product. The scope of trademark protection is just within one field of business, i.e., a computer company could name their new computer "Nike", and it (probably) wouldn't be a trademark infringement upon the athletic shoe company.
     
  • Copyright - A copyright protects the specific form in which ideas are recorded, and is the form of protections used to protect literary (books, articles, poems) and artistic (cartoons, music) works. Anything you write or records, even discussion forum posts, is immediately protected under copyright law unless you specifically place it into the public domain or some other licensing agreement (e.g., Creative Commons or the user agreement of the website on which it's first posted).

The specific laws regarding intellectual property vary from country to country, but the basic principles are recognized internationally, and a patent, trademark or copyright filed in one country does offer you legal protection in other countries under a collection of treaties administered by the World Intellectual Property Organization.

You do not have to have proprietary intellectual property to have a successful business, but if you have spent time and money developing unique intellectual property, you definitely want to take advantage of the laws that allow you to protect those ideas from unfair competition. Take inventory of your intellectual assets and consider what forms of intellectual property protection might be right for you.