By: Komal Agrawal
When embarking on a new business venture, the entrepreneurial mind is bombarded with seemingly endless to-do lists. One of the most important, but often overlooked, item is protecting the creations of the mind i.e. intellectual property.
What are Intellectual Property Rights?
Intellectual Property (IP) rights are a bundle of intangible rights which protect the creation of the human intellect. The category comprises primarily trademark, copyright, and patent rights, but also includes trade-secret rights, publicity rights, moral rights, and rights against unfair competition.
It is essential to identify which type of IP would protect the creations of the entity.
The types of IP that are crucial for an entity vary based on the entity’s products, services, and the competitive environment in which it operates. Frequently, an entity may safeguard its work by multiple forms of IP. For example, software applications (such as software used by OpenAI for ChatGPT) can be protected under copyright, and the name (such as “OpenAI”) can be protected under trademark.
Types of Intellectual Property Protection
IP may be protected under various forms, some of which are:
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Trademark
Trademark includes any word, name, symbol, or device, or any combination thereof which creates a distinguishing ability. For any organization, the name of entity, brands, company logo, logo of the brands, etc. are essential to be protected. Trademark can also include product designs. For example, Coca-Cola's hourglass-shape is a product design which is protected as a trademark.
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Conducting a thorough search is essential before deciding on or applying for a trademark. A prior rigorous trademark search precludes future legal battles, and a secure foundation for the new venture to establish its own unique identity.
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Once the chosen mark, word, logo, etc. to be protected is finalized, file the application for registration.
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Patent
Patent protects four independent categories of inventions or discoveries: processes, machines, manufactures, and compositions of matter. The invention/discovery must be novel, useful, and non-obvious.
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Conduct an extensive patent search (global search recommended). It ensures that the discovery is not already public.
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Determine the type of patent needed – utility patent (e.g. nebulizer device), design patent (e.g. wheel covers of Tesla’s Cybertruck), plant patent (e.g. a chrysanthemum plant named Organdy).
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File the patent application.
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Copyright
Copyright protection applies to original works of authorship (such as music, book, computer program etc.) and protects the author of the work. Authors must apply for registration of copyright to protect their work. The registration establishes a claim and secures the author’s rights.
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Trade Secrets
Confidential information (such as formula, prototypes, programs, and codes) which can be sold or licensed can be protected as a trade secret. To invoke protection as a trade secret, the information must have independent economic value, not be generally known, and be protected by reasonable efforts of security. For e.g., Coca-Cola’s formula is one of the longest kept trade secrets.
Steps to Protect Intellectual Property
A new venture is likely to reach out to multiple organizations for engaging in business, funding, scaling operations, marketing, and/or expansion. Therefore, it is crucial to set up protocols and barriers early on to protect one’s IP, such as:
- Identifying the ownership of IP in creations by agents/employees is crucial, which may be done by capturing appropriate clauses in the employment agreement.
- Invention disclosure agreements keep an eye on the creation of IP by employees/agents.
- Protection may be set in place by entering into non-disclosure agreements (to protect trade secrets), limiting access to the IP, and using IP protection software.
Continual Protection
Keeping track of one’s IP is crucial to ensure no misuse or violation of rights. Periodic searches will weed out infringers and afford the owner with opportunity to bring infringement claims. Continual protection ensures that the entity retains its uniqueness, and is not prey to identity theft.
Conclusion
While creating an IP is genius, protecting it ensures a right to claim (and enjoy associated benefits of ownership) the genius creation. IP is one of the first few assets owned by a company and often leads to value creation. Business owners should do their research, identify their IP, and take the necessary steps to protect it! For case specific information, help identifying and documenting the IP, agreements for protection, or discussing which options are available and best for you, contact the team at Chugh, LLP.
Bilski v. Kappos, 561 U.S. 593, 601, 130 S. Ct. 3218, 3225 (2010)
