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“WHY SHOULD I BOTHER?”:
INTELLECTUAL PROPERTY & TODAY’S BUSINESS OWNER
A Doerner, Saunders, Daniel & Anderson, L.L.P. Client Advisory

“Patent this name.” “Copyright this idea.”

Although patents, copyrights and trademarks are all “intellectual property,” these intangible property rights differ from each other significantly.

TRADEMARKS concern commercial origin identifications (they are marks of trade);
COPYRIGHTS concern literary and artistic expressions;
PATENTS concern functional and design inventions.

Know your IP. Each of these types of intellectual property can be an important asset to your company, especially as technology changes. Securing these assets properly increases their value as revenue streams or collateral. Failure to get appropriate protection is an invitation to piracy, and failure to respect the intellectual property rights of others is an invitation to a lawsuit. Here are three basic facts that every executive should know:

Before an expensive marketing campaign is launched, have a trademark search run to avoid infringing on another’s mark
If you didn’t write it, don’t assume you can copy it without permission.
In the U.S., patent protection must be sought within one year of the public use or offer for sale of the item/method on which protection is sought.

Protect your assets. Patents, trademarks and copyrights are all protected by federal law if they are registered properly. Registration for each of these three types of intellectual property is handled by a different federal agency. Here are just a few of the reasons registration is important:

Registration discourages competitors from copying what you’ve worked hard to develop
Registration increases your chances of recovering financially if a competitor does infringe
Registration helps protect your company from infringement accusations
Registration establishes an ownership record useful (and, in some countries, required) for licensing arrangements, which can be excellent revenue sources
Patents, trademarks and copyrights protected by registration carry legal presumptions that make them more attractive to potential lenders and investors. ₪DSDA

IP Summary Table

	Trademarks	Copyrights	Patents
Nature	Commercial identifications such as words, designs, slogans symbols, trade dress.	Original literary and artistic expressions such as books, paintings, music, records, plays, movies, software.	New and useful inventions and configurations of useful articles.
Scope	Protects against creating a likelihood of confusion, and for a famous mark, dilution.	Protects against copying.	Excludes others from making, using or selling the invention or offering it for sale.
Purpose	Protects owners and public from unfair competition.	Encourages and rewards creative expression.	Encourages and rewards innovation.
How to Obtain Rights	Use mark in commerce or apply for federal registration.	Create work and fix it in tangible form. Registration confirms rights.	Apply for grant of patent from federal government.
Principal Advantages of Registration	Nationwide priority rights; possibly conclusive evidence of validity and ownership; U.S. Customs recordation; increased anti-counterfeiting remedies.	Statutory damages and attorney’s fees; prima facie evidence of validity; U.S. Customs recordation.	Protection for non-secret inventions.
Basis for Registration	(1) Bona fide intention to use in commerce followed by actual use; (2) Foreign owner’s country of origin registration or application filed within 6 months, plus bona fide intention to use in commerce; or (3) Actual use in commerce.	Originality, fixation in a tangible medium.	Novelty, nonobviousness, utility.
Notice Requirements	Optional. “TM” or “SM” if unregistered; “®” or “Reg. U.S. pat. & Tm. Off.” If registered. Using notice strongly encouraged	Optional after March 1, 1989. © or “Copyright” with year of first publication and name of owner. Strongly encouraged.	Optional. “Patent applied for” or “pat. Pending” after application; “Patent” or “Pat.” Plus registration number after grant.
Term of Rights	As long as mark is used; registrations must be maintained by filing use declaration during 6^th year and renewal every 10 years.	Creations after January 1, 1978; author’s lifetime plus 70 years, or if anonymous or work made for hire, earlier of 95 years from publication or 120 years from creation.	20 years from filing date (or sometimes 17 years from grant) for utility or plant patents, subject to periodic maintenance fees; 14 years from registration for design patents.
Infringement Prerequisites	Registration optional.	Registration required for U.S. nationals; optional for foreign nationals.	Issued patent required.
Infringement Standard	Likelihood of confusion, mistake or deception as to source or sponsorship.	Unauthorized use or copying (access plus substantial similarity).	Unauthorized use or copying (access plus substantial similarity).
International Protection	Usually registered on a country-by-country basis. European Community Trademark registration available.	Usually protected without registration through international treaties.	Usually granted on a country-by-country basis with centralized filing available under the Patent Cooperation Treaty or European patent Convention.