Intellectual Property Basics This article provides some basic information about copyrights, trademarks, trade secrets and patents.  It describes generally how intellectual property rights arise and are protected.  Any particular creation of an entity (Company) may qualify for protection under one or more areas of intellectual property law, and may require clearance work to determine whether it infringes upon a third party’s intellectual property rights.  Please contact us if you would like more information, or help identifying or clearing potential intellectual property rights. Copyright A Company holds a copyright in each original work of authorship that is either made by its employees within the scope of their employment, or made as a “work for hire” by a contractor under a written and signed agreement.  A copyright comes into being when the work is fixed in a tangible medium of expression, regardless of whether the copyright is registered with the Copyright Office.  Copyright rights of a Company typically continue for the shorter of 95 years from publication of the work or 120 years from creation of the work. Generally, the owner of a copyright may prevent others from copying, modifying and displaying the work, among other things.  Copyright protects the expression, not the idea expressed.  So, a Company can prevent people from copying its copyrighted works, but copyright law does not prohibit others from independently creating a work that embodies the ideas expressed in a Company’s work. Copyright registration is relatively simple and the filing fees are low.  Registration is a prerequisite to suing for infringement in federal court.  Registration within three months of the date a work is published, or prior to an infringement of the work, preserves a Company’s ability to seek statutory damages for infringement and attorney’s fees.  Remedies for infringement include damages, an injunction and potentially statutory damages and attorneys’ fees. Copyrighted works should be marked: © Year of Publication Company Name.  The required location of the notice depends on the type of work, but it should be prominent.   Works that may be protected by copyright include advertising text and images, computer software, manuals and policies, and website content. Excellent primers and forms are available at: http://www.copyright.gov. Trademark A trademark or service mark is any distinctive word or symbol used to indicate the origin of a good or service.  Trademark rights arise from use and continue for as long as the trademark is continuously used. The owner of a trademark may prevent others from using a mark that is “confusingly similar” to identify goods or services similar to those of the owner.  The test for infringement is the likelihood that consumers will be confused about the source of a good or service.  Before using a trademark, a Company should conduct a search to make sure it is not already being used, and will not dilute a famous mark.   Trademark registration and maintenance is moderately complex and expensive.  Registration provides beneficial presumptions about the mark.  Remedies for infringement include damages, an injunction and potentially attorneys’ fees. Unregistered trademarks should be marked with TM and registered trademarks should be marked with ®. Information about trademarks is available at: http://www.uspto.gov/main/trademarks.htm. Trade Secret Trade secret law varies from state-to-state but, generally, a trade secret is any information or thing that gives a Company a competitive advantage, and that a Company uses reasonable efforts to keep secret.  Trade secret rights continue for as long as secrecy is maintained.  Typical efforts include the use of confidentiality agreements, trade secret policies and security measures.  Employees who develop trade secrets may continue to own them if their employer does not have a contract that gives it title.  A Company can prevent others from using a trade secret if they obtain it improperly or violate an obligation to keep it secret.  The Company cannot prevent others from independently developing a trade secret equivalent to that of the Company.  Remedies for infringement include damages, an injunction and potentially attorney’s fees. Trade secrets can include customer lists, software, processes and methods of doing business. Patent A utility patent may be obtained in any useful, novel and non-obvious invention.  Utility patents are available for software and business methods.  Employees who invent may continue to own the invention if their employer does not have a contract that gives it title.  A patent gives a Company the right, generally for 20 years from the date the patent application was filed, to exclude others from making, using or selling the invention.  Registration and maintenance of patents is complicated and can be expensive.  Information about patents is available at: http://www.uspto.gov/main/patents.htm.