Types of Intellectual Property
As a fundamental step in creating a business, entrepreneurs must be familiar with the different types of intellectual property.
While some believe there are only three types of intellectual property including trademarks, copyrights and patents, there are actually four different types when you include trade secrets.
Four Types of Intellectual Property
Each type of intellectual property has different filing requirements for securing protection and different standards of infringement. The following are the most important aspects you should understand about each type of intellectual property.
A trademark designates the source of goods or services. Trademark registration is focused on protecting a company’s reputation. Businesses use a variety of brand identifiers to indicate the source of their goods and services. This form of federal registration allows an entity to benefit from the goodwill it has established with consumers. Logos, phrases, slogans, names and other types of trademarks help clients differentiate between companies.
While trademarks provide a variety of benefits to the brand that owns them, a primary goal of this type of intellectual property is to protect the consuming public. Nothing can be registered if it may cause a likelihood of confusion among consumers. This ensures they always know what they’re purchasing. When seeking this form of protection, it’s also important to understand the types of trademarks:
These are identifiers that were invented solely to identify a certain brand. These words or images did not exist prior to their trademarked use. Examples include Kodak, Exxon, Adidas and Pepsi. These are inherently distinctive and thus allow consumers to easily distinguish between brands. Fanciful trademarks are the strongest form of trademark protection that a company can get.
While they don’t offer the same level of protection as their fanciful counterparts, arbitrary trademarks are still strong due to their inherent distinctiveness. A name may currently exist in certain languages, but its use in conjunction with a certain product or service can be entirely arbitrary. An apple, for instance, has no connection whatsoever to computers. This is why the brand Apple is so distinct and identifiable.
A suggestive trademark is inherently distinctive, but it still doesn’t have the level of protection offered by fanciful identifiers. These can be words or designs that suggest a relationship to a brand without directly stating it. A company that sells fast cars, for instance, may call itself Jaguar after a cat known for its speed. A bit of thinking is required on the part of consumers to make the connection.
Descriptive and Generic Trademarks
The lowest levels of protection a brand identifier can have are descriptive and generic trademarks. If a word or design merely describes a product – such as Cold and Creamy Ice Cream or Fast Computer Service – it typically cannot receive protection. It must acquire distinctiveness prior to registration. Otherwise, being granted federal protection would unfairly hinder competition.
Generic trademarks simply name the category of a product or service, and they are not registrable. The U.S. Patent and Trademark Office (USPTO) would not, for instance, register the terms blue jeans, cell phones, computers, lawn care or similar generic verbiage. It’s also possible for fanciful trademarks to lose their protection by falling into generic usage – known as genericization.
Other Types of Trademarks
There are types of trademarks other than fanciful, arbitrary, suggestive, descriptive and generic, including:
- Service mark: A trademark that’s used for a brand that provides services rather than products is called a service mark. This is the only distinction between the two.
- Trade name: These identify an entire company rather than specific products or services.
- Trade dress: The appearance, design and other aesthetic features of a product can be protected under trade dress
- Certification mark: These are words and symbols that show a product or service has met certain standards created by a certifying organization. It cannot be used as a brand identifier.
- Collective mark: These trademarks identify membership in associations, unions and other organizations.
There is a fair amount of overlap in these areas of trademark law. This is why it’s important to perform adequate research or seek professional help prior to filing. Getting your application right the first time can avoid the need for submitting amendments or having to reapply altogether. For further information, please see our trademark registration, trademark infringement or trademark litigation pages.
Artistic or intellectual expressions can be protected through copyright registration. For this type of intellectual property to qualify, it must exist in a fixed medium. This means that ideas cannot be copyrighted, but once they’re expressed in any fixed medium, they are automatically protected. Technological advances have expanded the law so that protection exists even for digital formats.
Unlike other types of intellectual property, copyright protection is immediate and requires no federal registration. That said, creators of original works should still file a copyright application with the U.S. Copyright Office. There are a variety of benefits that come along with doing so:
- Registration serves as presumption of ownership.
- If copyright litigation is necessary, registration allows owners to seek attorney’s fees and statutory damages.
- Registration adds value to your original work.
- Registration serves as a deterrent for those who may consider copyright infringement.
In order to secure full compensation related to infringement, your works must be registered with the government. Failure to do this, however, doesn’t necessarily mean you have no recourse. If you file for registration within three months of publication, you’ll still be eligible for attorney’s fees and statutory damages. Filing within five years retroactively establishes your presumption of ownership.
The following are just a few works that can be protected by copyright:
Creators must utilize patent registration in order to safeguard inventions. When an inventor secure this form of protection, they can either manufacture the creation themselves or sell the right of use to third parties. Ideas cannot be patented – it must be something that can be physically produced. Additionally, there are three important requirements that must be met to qualify for patent protection:
- Novel: An invention that’s novel has never been put into the public domain before. It must be substantially different than anything that’s being sold, has previously been on the market or has even been described in publications.
- Non-obvious: Inventions must also be non-obvious to qualify for patent protection. This means the invention could not have been easily perceived by experts within the creation’s industry.
- Useful: Prior to a patent being issued, it must be proven that an invention is useful. Prescription medications that don’t treat a disease and flying cars that don’t fly, for instance, would not receive patent protection.
Each type of intellectual property except for patents affords its owner some protections even when not federally registered. While patent rights were once granted to the first person to create an invention, this changed with the America Invents Act. If you fail to register your patent, anyone can come along and claim ownership of a similar or the exact same creation.
Three types of patents include:
The most commonly filed patents with the USPTO are utility patents. This covers machines, processes, compositions of matter and other materials that are new and useful. Protection may also be sought over improvements to these items that are both new and useful. Examples include novel manufacturing processes, any type of machine, new medications created by combining chemicals, and other new products.
A design patent refers to the ornamentation of a particular object. This form of protection only applies to the appearance. The functional or structure aspects must be registered as a utility patent. This often results in the need for multiple applications.
It’s also possible to file a patent application for new and distinctive plants. Certain types of plants do not qualify for protection, and asexual reproduction of the plant must also be possible (e.g. grafts). Another requirement is that it only be found in a cultivated state.
Registering intellectual property typically provides a wealth of benefits, but the entire point behind trade secrets is that they remain secret – even from the government. Trade secrets can include patterns, formulas, compilations, methods, devices, processes, programs or techniques. Their economic value is derived from the fact that they aren’t publicly known.
This type of intellectual property is very similar to patents – outside of the need for registration. While patent protection grants exclusive rights, it also places the item into the public domain. Once the patent expires, anyone can freely use the invention. There is no expiration on trade secrets, though, so they could theoretically last forever.
To qualify, there are a few requirements that must be met:
- The secret must be valuable to the owner.
- It must not be generally known among the public or industries.
- Active efforts to guard the secret must be taken.
While many trade secrets are patentable, this isn’t always the case. Anything from customer lists to instruction methods could be considered trade secrets as long as the three criteria are met. If misappropriation of a trade secrete occurs, trade secret litigation is an option. About 1000 trade secret lawsuits are filed yearly. This is when the Defend Trade Secrets Act took effect. The number of filings then jumped to 1,134. If you feel your trade secret has been misappropriated, you should seek legal assistance quickly.
Protecting the Three Main Types of Intellectual Property
While trade secrets could potentially provide permanent protection, most individuals prefer the benefits provided by patents, trademarks and copyrights. This is why most consider these the three main types of intellectual property. Preventing and responding to unauthorized use is a necessity, and there are a variety of ways for accomplishing this.
The first step in protecting brand identifiers would ideally be performing a trademark search. This will help to discover if your desired name, logo, slogan or other trademarkable property was already in use. From this point you would file an application and wait for it to be assigned to a USPTO examining trademark attorney. If they find no issues, your application will be published in the Official Gazette.
Once registration completes, there are numerous ways to monitor your trademark. The onus of policing misuse falls on the owner, so utilizing the following methods is ideal:
- Google Search: It’s easy to search for trademarked names, words and slogans on Google. If your brand identifier is an image, you can use this as a search tool as well.
- Industry news: The most likely place that infringement will take place is within your own industry. Monitor related publications for potential misuse.
- Google Alerts: You can set up a notification on Google to alert you when certain terminology appears online. This is much easier than active monitoring.
- Monitor Amazon: Trademark infringement on Amazon has become a serious issue. Conduct periodic searches to see if anyone is improperly using your identifiers.
- Google Ads: People can use your trademarks in Google Ads to target potential clients. The platform will allow you to see who is doing this. These are the brands you should pay special attention to.
For any infringement, you should immediately hire an attorney to send a trademark cease and desist letter.
Monitoring and responding to copyright infringement is sometimes a difficult endeavor. While it’s easy enough to use Google to search for written creations, pinpointing misuse of paintings, sculptures, songs and architecture can be more challenging. When you do discover infringement, though, it’s important to act immediately.
This is because copyright infringement is often undertaken with the sole purpose of profit. If a third party is making money from your copyright, it means you’re experiencing financial loss. Additionally, you may lose the ability to receive compensation if it’s proven that you knew about the infringement and took no action.
Start by sending a copyright cease and desist letter. This simple act is partially responsible for keeping 97 percent of legal disputes out of the courtroom. You can also submit a Digital Millennium Copyright Act (DMCA) takedown notice if you discover infringement occurring online. Even posting pictures of your artwork may be considered misuse, so if you’re not sure infringement has occurred, contact a copyright attorney immediately.
Keeping your invention under wraps prior to registration is essential when protecting a patent. This may require the use of a non-disclosure agreement (NDA). A patent search should also be utilized – which will include industry publications in addition to the USPTO database. You’ll then need to create the claims that make up your patent and submit an application.
Once you’re granted patent protection, you’ll need to take steps for detecting and responding to infringement. It’s important to catch misuse of your patent early on. If you can catch this in the early stages, you’ll have a better chance of avoiding the loss of exclusive rights.
Regardless of the type of intellectual property protection you need, we can help. Please contact us today.