Protecting Your Intellectual Property

Last night I went to a class on protecting your intellectual property.  Here are my notes:

COPYRIGHT PROTECTION:

-Copyright protection for a piece of work is the life of the creator + 70 years

-You have protection from the moment the work is created. This gives the owner exclusive rights as to what you can stop other people from doing with your work

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-Copyright notice placement has been repealed, meaning anyone can add the copyright © to a work even if it’s not registered with the Copyright Office (example this post is copyrighted to me). If you are going this route it’s a good idea to add the date the work was created in case disputes arise later on.

Registering a copyright is a good idea for the following reasons:

statutory damages– otherwise you have to prove damages, monetary and otherwise, which can be difficult

attorney fees– If your work is registered then whoever is taking you to court has to pay your attorney fees. This acts as a deterrent for lawsuits.

criminal penalties– seeking damages from someone illegally using your work

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Derivative work is work based on one that already exists. So if you create a piece of work based on pre-existing work, you can copyright it. Beware that the creator of the pre-existing work can come after you.
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When working with creatives such as: photographers, web developers, code writers, artists, bloggers:

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– ALWAYS have a Work For Hire written contract with them expressively stating that you own the rights to the work. Otherwise they can legally claim ownership of the work, regardless if you hired them to do the work for you.

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TRADEMARK PROTECTION:

 

-A trademark is the identifier of source of particular goods or services

– The purpose of trademark law is to protect consumers from confusion

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-A trademark is tied to the industry. For example if a fashion company and a coal
company have the same name there would be no trademark issue because they are different industries

-Most common trademarks are words but can trademark logos, colors, design, phrase

– A Trade dress identifies characteristics of a product like décor (Applebees restaurants), shape of product (Coke bottle). You have to be well-known in the market to attain a trade dress.

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Ways to choose a trademark:
Protectability – fanciful, unique names (zappos, zynga); arbitrary –name has nothing to do with the product (apple, amazon); suggestive (petsmart, the container store);  descriptive (Brooklyn brewery, KFC, TriBeCa treats)

Availability: do trademark searches for available names
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What trademarks can you own?
A logo, where and how a logo is placed, color design, unique features

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How do you protect your marks?

– Register them! Register them so you can avoid the messiness of lawsuits.

Priority in time is when you’ve used a trademark for many years and can claim the trademark even though it was not registered. This however is not a safe bet.

Keep in mind: The US goes by the first to use trademark rule while most rest of the world goes by first to file rule.


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Using the symbols correctly:
TM– when you are claiming trademark. You don’t need to file any paperwork. This puts the competition on notice that you are claiming a mark your trademark
®- ONLY after the trademark is registered with the US government and you have the federal registration certificate

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Protect your mark through proper use. Present marks consistently exactly as designed.
Always use your trademark name as adjective not noun, which makes it generic (I need a tissue vs. I need a Kleenex)

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Monitor your mark– spend once a month searching the web to see if anyone is infringing or using very similar trademark. You can set up google alerts for your name and similar names to help you keep track.

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Keep records of use of your mark – have a file of documents relating to your trademark. This is critical if your trademark is not registered.

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Trade secrets is information kept in secret, ex Coke formula. Trade secrets can include: customer list, unique way of doing business (excel spreadsheet for evaluating sales performances, customers expansion plans, algorithms)

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NDA agreements– the most important part is be SPECIFIC with what you are protecting. Include time periods, descriptive information, for non-competes include specific territory. The broader an NDA is, the harder to enforce.

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Who owns your company’s IP?
It’s important to discuss, determine, and put in writing who owns key intellectual property assets between owners, partners, investors, etc.

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