Did you realize that most attorneys can’t even identify the four most common areas of Intellectual Property Law? It’s one of the reasons I get a little edgy when people go to general practitioners for advice on patents, trademarks, copyrights, or trade secrets. Most attorneys are wise enough to steer clear of areas of law they don’t know well, but we all get tempted by circumstances to venture into areas that are better left to experts. Thankfully, Intellectual Property is pretty well known as an arcane backwater of legal practice that your average attorney knows they don’t know and is willing to refer to IP specialists. But I really want all attorneys and non-attorneys to know enough about Intellectual Property to both keep themselves out of trouble and spot issues that they should really take to an IP specialist.
As part of this mission, I spent the day preparing to teach a Continuing Legal Education course through the Oneida County Bar Association in Utica, NY. The theme was similar to other such classes I have taught, giving attorneys who don’t practice Intellectual Property law and overview of what it is all about. Knull P.C. sponsored the seminar at the Radisson in downtown Utica and had a couple dozen local non-IP practitioners show up for, “What Every Attorney Should Know About Intellectual Property.” They were a lively crowd with lots of questions, so it was a fun evening geeking out about IP.
The talk started with a live presentation of “4 Things Every Business Should Know About Intellectual Property.” Hopefully, you are already familiar with that from our YouTube video. Click here if you haven’t watched it yet.
Since I was talking to attorneys, a definition seemed appropriate:
“Intellectual Property” or “IP” refers to a group of legally protected rights related to various intangible assets. They are an attempt to balance the public dissemination and use of intangibles (ideas, images, associations, etc.) with control and economic incentive for creators.
“Intangible assets” is really a broader concept from business management and finance that covers everything that isn’t physical (like real estate, buildings, machines, and inventory) or financial (cash, debt, receivables, securities, etc.) in a business. Opinions vary on whether “intangible assets” includes people (human capital) or not. But it definitely includes the concepts of brand, media, and know-how that are the basis of our Intellectual Property laws.
When Intellectual Property attorneys think and talk about IP, we separate it into four specific areas of law that have distinct purposes and laws governing them.
The Big Four of IP are:
Trademarks protect brand and reputation. You know trademark mostly in the form of company names and logos, and sometimes for product names, slogans, or characters. But trademark broadly covers anything that a consumer might use to determine the source of products or services. It can include sounds (like the NBC chimes), package design (the fluted Coke bottle), building décor (McDonald’s roof design), or even smells or colors. Trademark law includes both Federal law under the Lanham Act and various state statutes and common law related to preventing consumer confusion, misuse, or damage to a company’s goodwill.
Copyright protects media and other creative works. You probably are most familiar with copyright in the context of books, music, and movies, all of which generally include a prominent copyright notice (such as “©2014 Devin S. Morgan, all rights reserved”). You may not realize that those same laws apply to photographs (including all those pictures on your smartphone), fine arts, software, and pretty much anything you write down, from your marketing copy, to Facebook posts, to your third grade English essay. The big idea behind copyright is to give the author or artist control over copying, display, and new works based on an earlier creative work (called “derivative works” such as the movie based on a book). It also sets up the rules for contracts that allow creators to sell or license their works to producers, publishers, record labels, and software companies.
Trade Secret protects valuable know-how. Secret recipes and industrial espionage are what most people think of when they hear trade secret. But trade secret is a broad protection for any business that benefits from knowledge that their competitors or the general public don’t have access to. Sure, it includes secret recipes, formulas, technologies, and manufacturing processes, but it also includes business plans, financial information, customer lists, and much much more. Pretty much any knowledge that has commercial value is fair game, as long as you are taking reasonable precautions to keep it secret. Trade secret law is about compensating businesses for theft or misuse of trade secrets, but be warned that you really can’t put the genie back in the bottle.
Patents protect new technology. Patents protect a very specific sub-category of know-how, namely novel inventions. Patents can cover advances in almost any area of human-made know-how, from machines to chemicals to software to biotechnology. Many people are surprised that even new processes can be the subject of patents, including business methods. Patents are powerful, but also expensive to get and even more expensive to use. They are highly regulated and exist only through a complex application process through the U.S. Patent Office (or an appropriate patent authority in another country). But if you have a patent, it gives you the ability to control who can make, sell, import, or even use your invention.
There won’t be a quiz, but you will do your business and your advisors a service by learning to keep these four areas of Intellectual Property law straight. I hope the attorneys I taught in Utica will take this knowledge back to their clients and maybe point them toward the “12 Things Every Business Should DO About Intellectual Property” videos to really take action and make IP work for their businesses. At the very least, I am confident that they saw the value in sending IP issues to an IP expert.
To help you out with your own IP know-how for your food or beverage business, I will be working on a series of posts comparing the various areas of IP law. Watch for them and, if you haven’t done so already, subscribe by entering your e-mail to the upper right.