Thursday, July 19, 2012

All about: Copyrights, Patents and Trademarks


As a new business owner, you have invested copious amounts of time creating a successful new venture. It’s vital to protect that new product or business to prevent others from using the property you’ve worked so hard to build.

We sat down with Nellie Akalp, CEO of CorpNet.com, to discuss the top ways to protect a new invention or business.

What are the main ways to protect business property?
Your company’s intellectual property – from your logo to trade secrets – can be just as valuable as any physical assets or balance sheet so it is vital to protect them. Here are the three main types of protection for intellectual property:
1--Trademarks: your company name, product names, and slogan
2--Copyrights:  website copy, whitepapers, marketing videos, and computer code
3--Patents: tangible inventions, product design, and processes

What specifically should a trademark be used for?
A trademark is a word, phrase, name, or symbol that that identifies the source of a product or service and distinguishes it from competitors. A trademark would apply to your company name, product names, logos, and taglines.   Trademarks don’t actually have to be registered with the USPTO (US Patent and Trademark Office). If your company creates a logo or name that you want to use exclusively, you can attach the TM symbol and this essentially gives you “common law” rights. However, in case anyone ends up using your name or logo without your permission, you’ve got a much better chance of winning an infringement suit against them if you actually registered your trademark. And with formal trademark registration, it’s also exponentially easier for you to recover your digital properties…for example, if someone happens to using a close variation of your domain name or is using your company name as their Twitter handle. When it comes to Trademarking a business name , logo or slogan, there’s often some confusion surrounding the company name. Many young companies think that once they incorporate or form an LLC, they have registered and protected their name. The act of incorporating does indeed register your business name within your state of incorporation – but that won’t stop someone else from using your name in any of the 49 other states.

How do I go about trademarking a name or logo?
If you decide you want to go ahead and register your business name or logo, you’ll need to file an application with the USPTO  you can file either directly with the USPTO or have an online legal filing service handle it for you. Expect to pay approximately $325 per class in application fees that your mark would fall under and the process can take anywhere from 6-12 months once you submit your application. It’s also smart to perform a comprehensive trademark search before starting the application process to make sure your name is available (you won’t get an application refund just because your name isn’t available).


What about a Patent? What should be patented?
A patent gives an inventor the exclusive rights to manufacture, use, or sell an invention for a certain number of years. Patents cover tangible things, and can include software processes, product design, and other inventions. For example, Twitter has a patent on the "pull-to-refresh" function found in Twitter's iPhone app; Coca-Cola patented the unique shape of its original bottle.   Before applying for a patent, you should ask yourself the following questions: is your product or idea original? Is it useful? And is it not obvious to others with basic skills in your field? For example, Amazon.com’s patent for its one-click ordering system was rejected by the European Patent Office (EPO) for being too obvious and non inventive.   When you register your invention with the government, you get the legal right to exclude anyone else from manufacturing or marketing it. You also get to use terminology like ‘patented technology’ or ‘patent-pending technology’ (for a provisional patent) in your marketing material. And, patents have value they can be sold as assets and are often factored in to a funding or acquisition deals.

How do I go about getting a patent?
Acquiring a patent can take up to six years and hundreds of hours of work. Due to the complexity of the process, most companies turn to an attorney, patent agent, or licensing firm – this can mean approximately $7K-15K in attorney fees. Ideally your IP pro will understand and specialize in your particular market.   Because the investment required to file a patent is so high, many startups struggle to know the right time to apply. While there’s no single ‘right’ answer for everyone, here are some things to keep in mind:

•  You can be too late: When you submit your paperwork to the U.S. Patent and Trademark Office, you secure your priority date. This means that if another company starts doing something similar after your filing date, they’re infringing on your patent (and could be ordered to stop). If you wait – perhaps until your product is ready to launch or your company has more cash flow – you won’t have any case if someone starts doing what your patent is about. And you miss the opportunity to patent the idea or product.
•  You can be too early: In some cases, a company can spend thousands in getting a patent, only to discover that their product is not commercially viable. Or in other cases, by the time the product is finally ready for market, it has gone through so many iterations, that it’s no longer completely covered by the original patent and the company needs to apply for a brand new patent or Continuation-In-Part application.

When does a copyright have to be registered?
A copyright protects “original works of authorships.” For digital startups, this typically means website copy, marketing material, and possibly even computer code. By law, a copyright exists the moment something is written, photographed, drawn, etc. As soon as you write and publish the copy on your website, you automatically own a copyright for this work ¾ and are able to use the copyright symbol © and use the terminology “All Rights Reserved.”   If copyright protection exists without registration, why register? Formal registration is a prerequisite if you decide to sue someone for copyright infringement. That’s because copyright registration gives you a public record of ownership.

How do I register a copyright?
You can register online through the U.S. Copyright Office or have a legal online filing service handle it for you. Registering a copyright is relatively straightforward and affordable. So if it’s important to you to have the ability to take legal action in case someone copies part of your website or whitepaper without your permission, then it makes sense to register a copyright.

Nellie Akalp is the CEO of CorpNet.com, an online legal document filing service, where she helps  entrepreneurs Incorporate or Form an LLC for their new businesses.
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