Intellectual Property Basics: Trademarks, Copyrights and Patents

Intellectual property, often called IP, refers to creations of the mind, such as names, logos, writing, photos, designs, inventions and processes. For many small businesses, intellectual property can be among their most valuable assets. Your brand name, logo, website content, product designs and unique processes all help distinguish your business from competitors. Understanding the basic types of IP protection helps you protect what you create and avoid infringing on others’ rights.

Trademarks

A trademark protects words, names, symbols, logos, slogans and other identifiers that distinguish your goods or services from those of others. Your business name, product names and logo may all function as trademarks. Trademarks help customers recognize your brand and prevent competitors from using confusingly similar names or symbols.

In the United States, you may have some trademark rights simply by using a mark in business, known as common law rights. However, these rights are generally limited to the geographic area where you use the mark.

Registering your trademark with the U.S. Patent and Trademark Office, or USPTO, gives you stronger, nationwide protection. Registration creates a public record of your ownership, provides a legal presumption that you own the mark and gives you the right to use the registered trademark symbol. It also makes it easier to enforce your rights in court.

Before choosing a business or product name, search the USPTO’s trademark database to avoid conflicts with existing marks. Using a name that’s confusingly similar to an existing trademark in a related industry could force you to rebrand later, after you’ve invested in signs, packaging and marketing. A broader search of state registrations, business names and online use can also help.

Trademark registrations can last indefinitely, as long as you continue using the mark and file required maintenance documents.

Copyright

Copyright protects original works of authorship, such as writing, photographs, artwork, music, videos, software code and website content. For businesses, this may include marketing materials, blog posts, product photos, designs and training materials.

According to the U.S. Copyright Office, copyright exists automatically once an original work is created and fixed in a tangible form, such as written down, saved digitally or recorded. You don’t need to register or use a copyright notice for protection to exist.

Registering with the Copyright Office is optional, but it offers important benefits. Registration is generally required before you can file a lawsuit for infringement of U.S. works, and timely registration can make additional remedies available, such as statutory damages and attorney’s fees.

Copyright doesn’t protect ideas, facts, names, titles or short phrases, only the specific expression of ideas. Names and slogans may be protected by trademark instead.

Patents

A patent protects an invention, granting the owner the right to exclude others from making, using or selling the invention for a limited time. Utility patents cover new and useful processes, machines, manufactured items and compositions of matter. Design patents protect new, original ornamental designs for manufactured items. Plant patents cover certain new plant varieties.

Patents are granted by the USPTO and require a detailed application demonstrating that the invention is new, useful and not obvious. The process can be complex, time-consuming and expensive, and it often takes years. Many inventors work with a registered patent attorney or patent agent.

Timing matters with patents. Publicly disclosing, selling or offering to sell an invention before filing can affect your ability to get a patent, so talk with a patent professional before sharing your invention publicly. The USPTO offers resources for independent inventors and small businesses, including pro bono programs for those who qualify.

Trade secrets

Trade secrets protect valuable business information that isn’t publicly known and that you take reasonable steps to keep confidential. Examples include recipes, formulas, customer lists, manufacturing processes, pricing strategies and business methods.

Unlike patents, trade secrets don’t require registration and can last indefinitely, as long as the information remains secret. Protection depends on your efforts to keep it confidential, such as using nondisclosure agreements with employees, contractors and partners, limiting access to sensitive information and using security measures to protect data.

Respect others’ intellectual property

Just as you want to protect your IP, respect the rights of others. Don’t use images, music, videos, fonts or written content you find online without permission or a proper license. Many people mistakenly assume content online is free to use, but most is protected by copyright.

Using others’ work without permission can lead to legal claims, demands for payment and requirements to remove content. Use licensed stock images, music libraries with clear terms, content you create yourself or works explicitly offered under licenses that permit your intended use.

Get help

The USPTO and U.S. Copyright Office websites offer free guides, searchable databases and resources for small businesses. For important decisions, such as registering a trademark, filing a patent application or dealing with an infringement claim, consult an intellectual property attorney. Some law schools and bar associations offer free or low-cost IP clinics for small businesses and entrepreneurs.