As you explore ways to protect your idea, you may have come up against the whole patents vs. copyrights vs. trademarks vs. trade secrets issue. These are four different types of intellectual property, all with varying requirements and protections. In some cases, it’s entirely possible to manage things for yourself. In others, it would be ill-advised to embark on your own. A quick review of the four will help you choose the right option so you can decide if you’ll need legal assistance.
A Primer on Patents vs. Copyrights vs. Trademarks vs. Trade Secrets
There are four major segments of intellectual property (IP) law to consider as you look at ways to protect your idea: patents, copyrights, trademarks, and trade secrets. While it’s not possible to list everything you need to know about the four types, there are some basics that will help guide your decision.
Patents protect inventions. They provide the exclusive right to that design for a period of 20 years from filing. While “invention” may lead one to think of technology, you can patent almost anything provided it is unique, useful, novel, and possible. That means it has to be a design that no one has used before, and differs from existing products in a meaningful way. You must also submit proof that the design is possible, so you can’t patent a concept that’s purely theoretical. The concept must be proven by prototypes, patent drawings, or a detailed listing of its functions.
Copyrights protect creative works. They are designed to protect literary works, music, screenplays, stories, and other artistic efforts. You can also copyright computer software. The copyright exists the moment you create something. However, you need to register it if you want to enforce your copyright. A copyright registered within five years of publication is considered clear evidence of ownership should you need to file a lawsuit or defend your use in court. A copyright lasts for the life of the author, plus 70 years. Items no longer covered by copyright are considered in the public domain.
Trademarks protect brands. They provide protection for distinct symbols, designs, or words that identify your specific product. Like copyrights, you’re considered the owner once you start using it. At the base level, the trademark is only protected in the field where you do business. However, you can register it to gain greater protection and national recognition. To qualify as a trademark, something must be used for business purposes and it must be distinctive. You can’t, for example, trademark a very common word or phrase simply for the purpose of owning it. Trademarks must be renewed every 10 years.
Trade secrets are valuable commercial information not known by the public. There is no certificate or grant issued by any government body. It can cover things like business processes, formulas, designs, or patterns, among others. For information to qualify as a trade secret, it has to be valuable, not generally known to the public at large, and protected by the company that holds it. Common methods of protecting trade secrets include nondisclosure, confidentiality, and non-compete agreements. There is also no expiration date on a trade secret. It stays confidential as long as you keep it so.
Once you know what type of IP protection you need, it’s much easier to decide on the next steps. Obviously, your first and most important decision will be what kind of legal assistance you need—or if you need it at all.
Still not sure? It’s totally understandable; these terms can be difficult to parse. Our Bold Attorneys have spent years in school and in practice discerning these, and we stand ready to help you parse through your business goals and IP to determine which areas of IP you need to secure protection for.
When to Seek Legal Help
If you need a patent, you almost certainly need an attorney. Patent law is complex, and navigating it isn’t easy. In fact, the US rejects more than half of the patent applications submitted every year. That means you’re more likely than not to have your patent refused on your first attempt, and you’ll need to provide legal arguments and amendments to convince the US Patent and Trademark Office examiner that you should get a patent. On top of that, you’ll also have to consider things like patent searches, which should be done prior to filing a patent application, where you need to review thousands of existing applications and publications to ensure that your design is one that fits the requirement. This is a situation in which it’s best to have legal advice from the very beginning.
The registration process for copyrights and trademarks can also be pretty intense. While your work is generally protected from the moment you create it, it may be wise to get input from a legal expert when you complete the paperwork. Plus, you may find that if you didn’t do the research upfront, or seek a legal opinion, your brand or creative work may be infringing a prior user’s.
With trade secrets, what you’re really going to need to worry about is contract and employment law. To protect a trade secret, you must prove reasonable attempts to keep the information you give to employees confidential. If you have relationships with vendors or workers who require access to your secrets, you’ll need nondisclosure or confidentiality agreements to protect it.
Defining your idea as a patent, copyright, trademark, or trade secret is the first step you must take to protect your idea. Making the right choice can be the difference between protection and rejection. With the right legal advice, it will be much easier to navigate this complex area of intellectual property law.
At Bold Patents, we can help you navigate the complexity of patents vs. copyrights vs. trademarks vs. trade secrets. To get an even greater understanding of patents and their role in protecting your design, we offer a free copy of our book Bold Ideas: The Inventor’s Guide to Patents, with every consultation. Reach out to us by phone at 800-849-1913, or visit our contact page for more information.