Intellectual Property: Trademarks, Copyrights, and Patents

Why Intellectual Property Matters for Small Business

Your business name, logo, website content, product designs, and proprietary processes all have value. Intellectual property (IP) law exists to protect these assets. Without protection, competitors can copy your brand, use your content, or replicate your inventions without consequence.

Many small business owners think IP is only for large corporations or tech companies. That is wrong. If you have a business name, a logo, original content, or a unique process, you have intellectual property worth protecting.

Trademarks: Protecting Your Brand Identity

A trademark protects words, phrases, symbols, or designs that identify your business and distinguish it from others. Your business name, logo, tagline, and even distinctive packaging can be trademarked.

What a Trademark Covers

• Business names and brand names
• Logos and design marks
• Slogans and taglines
• Product names
• Distinctive product packaging (trade dress)

Common Law vs. Registered Trademarks

You get some trademark protection simply by using a mark in commerce. This is called common law trademark protection, and you can use the TM symbol to indicate it. However, common law protection is limited to your geographic area.

Registering your trademark with the U.S. Patent and Trademark Office (USPTO) gives you nationwide protection, the right to use the registered symbol, the ability to file suit in federal court, and a legal presumption that you own the mark.

The Registration Process

1. Search first. Use the USPTO's Trademark Electronic Search System (TESS) to check if your desired mark is already registered or pending.
2. File an application. You can file online through the USPTO's Trademark Electronic Application System (TEAS). The filing fee ranges from $250 to $350 per class of goods or services.
3. Wait for examination. A USPTO examining attorney reviews your application, which takes several months.
4. Respond to office actions. If the examiner has objections, you will receive an office action that you must respond to.
5. Publication and registration. If approved, your mark is published for opposition. If no one opposes within 30 days, your registration issues.

The entire process typically takes 8 to 12 months. Plan ahead.

Maintaining Your Trademark

Trademarks can last indefinitely, but you must maintain them. File a Declaration of Use between years 5 and 6 after registration, and renew every 10 years. If you stop using the mark in commerce, you can lose it.

Copyrights: Protecting Your Original Works

Copyright protects original works of authorship. For small businesses, this includes website content, marketing materials, photographs, videos, software code, training manuals, and blog posts.

What Copyright Covers

• Written content (articles, books, manuals)
• Visual works (photos, graphics, illustrations)
• Audio and video content
• Software code
• Architectural works

Automatic Protection

Copyright protection begins the moment you create an original work and fix it in a tangible form. You do not need to register to have copyright protection. However, registration provides significant legal advantages.

Why You Should Register Anyway

Registering with the U.S. Copyright Office gives you:

• The ability to sue for infringement in federal court
• Eligibility for statutory damages (up to $150,000 per work for willful infringement) instead of having to prove actual damages
• A public record of your ownership

Registration costs $45 to $65 per work when filed online. For the legal protection it provides, this is a bargain.

Work Made for Hire

If an employee creates a work within the scope of their employment, the employer owns the copyright. But if you hire an independent contractor to create something, the contractor owns the copyright unless your contract explicitly assigns it to you. This is a critical distinction. Always include IP assignment clauses in your contractor agreements.

Patents: Protecting Your Inventions

Patents protect inventions and give the patent holder the exclusive right to make, use, and sell the invention for a limited time. Patents are the most complex and expensive form of IP protection, but they are essential if you have a genuinely novel invention.

Types of Patents

• Utility patents: Protect new and useful processes, machines, manufactured items, or compositions of matter. Last 20 years from the filing date.
• Design patents: Protect new, original, and ornamental designs for manufactured items. Last 15 years from the grant date.
• Plant patents: Protect new and distinct plant varieties. Last 20 years from the filing date.

The Patent Process

1. Document your invention. Keep detailed records of the development process, including dates, drawings, and descriptions.
2. Conduct a prior art search. Search existing patents to determine if your invention is truly novel. The USPTO database and Google Patents are good starting points.
3. Consider a provisional application. A provisional patent application establishes an early filing date and gives you 12 months to file a full application. It costs $150 to $320 for small entities.
4. File a non-provisional application. This is the full patent application. Filing fees range from $800 to $1,600 for small entities, but attorney costs typically add $5,000 to $15,000.
5. Respond to the examination. The USPTO examiner may issue office actions requiring responses.
6. Receive your patent. The process typically takes 2 to 3 years.

Is a Patent Worth It?

Patents are expensive and time-consuming. Before investing, ask yourself:

• Can my invention be reverse-engineered easily?
• Is the market large enough to justify the cost?
• Can I afford to enforce the patent if someone infringes?

If the answer to all three is yes, pursue a patent. If not, consider whether trade secret protection might be a better fit.

Trade Secrets: The Fourth Category

Trade secrets are confidential business information that gives you a competitive advantage. Customer lists, manufacturing processes, pricing strategies, and proprietary formulas can all qualify. Trade secret protection costs nothing to establish but requires you to take reasonable steps to maintain secrecy, such as using NDAs, limiting access, and marking documents as confidential.

Building Your IP Strategy

1. Audit your IP. Identify all intellectual property your business owns or uses.
2. Prioritize protection. Trademark your business name and logo first. Register copyrights for your most valuable content. Pursue patents only when justified.
3. Use contracts. Ensure all employee and contractor agreements include IP assignment and confidentiality clauses.
4. Monitor for infringement. Set up Google Alerts for your brand name and periodically search for unauthorized use of your content or marks.
5. Budget for enforcement. IP rights are only valuable if you can enforce them. Set aside funds for cease-and-desist letters and potential litigation.