I have worked hard in my career to build a brand around my art. How do I protect my rights in my intellectual property and business information?
The rights to intellectual property fall into four general categories: patents, copyrights, trademarks, and trade secrets.
A patent is a certificate granted by the U.S. Patent and Trademark Office to an inventor that grants the inventor the right to the sole use of an invention for a fixed period of time. Patentable materials include new, useful and non-obvious inventions such as processes, machines, manufactured products, business methods, software, and even pharmaceuticals, microorganisms, and plants. To obtain a patent, an inventor must apply with the U.S. Patent Office to register an invention, and, if the invention meets the criteria for registration, the inventor receives a patent registration certificate that grants the inventor the right to exclude anyone from using that invention without the inventor's permission for 20 years from the date of the application. Once obtained, an inventor may either practice or use the invention, or sell, mortgage, assign or license it to others to use.
Copyrights protect creative works such as literary works, dramatic works, motion pictures, sound recordings, pictorial works, graphic and sculptural works, characters and computer software from copying by others, but do not give the author or artist the exclusive right to use the work. Copyrights exist from the moment of creation of the work, require no special registration, and exist for the life of the author plus 70 years, or, for anonymous works or works made for hire, 75 years from the date of first publication or 100 years from creation. Ideas, catch phrases, mottoes, slogans and short advertising expressions are not copyrightable, but may be entitled to protection as trademarks which are discussed below. While copyrights exist without registration, a copyright owner may register their work with the U.S. Copyright Office, and, in fact, must do so before the owner may sue for infringement of the owner's copyrights. Copyrights can be sold, mortgaged, assigned or licensed to others.
A trademark is any word, phrase, symbol or design, which identifies and distinguishes the source of the goods or services of one party from those of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The purpose of a trade or service mark is to protect consumers from deception, and to protect the goodwill of the business from misappropriation by others. A trademark only entitles the owner to exclusive use of the mark in advertising or identification of the goods or services associated with the mark. It does not permit the owner to prevent others from using words or symbols in the mark in other ways. Rights to a trademark arise when the owner uses the mark to identify their goods or services, and continue as long as the mark remains in use. These rights apply, however, only in the areas where the mark has actually been used. In other words, another person may use the same mark as long as the areas in which they are used do not overlap. A trademark owner may apply to register the mark with the U.S. Patent and Trademark Office, which, among other things, extends the owner's rights to the use of that mark throughout the U.S. and serves as notice to others of the owner's rights in the mark.
A trade secret can be anything that provides a commercial advantage to a business because it is not generally known to others including, customer lists, formulas, recipes, technical data, business methods, blueprints, and business plans. A trade secret requires no registration, and is valid for as long as it remains a secret. The owner of a trade secret has no right to prevent others from using the secret if it becomes known to them through legal and ethical means. The owner may legally seek to prevent someone from using the trade secret, if it is obtained through theft, espionage or other illegal or unethical means. The only requirement to maintain rights in a trade secret is that the owner take reasonable measures to maintain the secrecy of the information such as marking documents as confidential, limiting access to the information, prohibiting copying of documents, keeping documents in a locked location, and requiring non-disclosure agreements with others before allowing access to the information.