By Dixie Somers
Starting a new business leaves many entrepreneurs in uncharted waters when they get to the legal side of the company. If you are a business owner and you are planning to make use of intellectual property as either an asset or as part of your product, you are well-advised to consult an intellectual property attorney as soon as possible. Copyrights, trademarks and patents are among the most complicated legal subjects, and competent advice is vital if you want to keep your ideas, property, and products safe. Keep reading to learn about the most important things that new business owners need to know about patents and trademarks before launching the business.
A trademark is any distinctive design that can be used to identify your company or a product. The reason trademarks are legally defensible is because your relationship with your customers depends on them being able to recognize your products.
There are two kinds of trademarks. One is known as a “common law” mark, which is noted with a TM symbol. The other is a registered trademark, which is noted with the circled R.
To make proper use of a trademark for your business, you will need to hire a competent designer. You’ll also want hire an attorney to perform a search on all the names and designs you wish to use. This will ensure that you aren’t infringing upon any copyright, trademarks, or patents. Make sure your designer knows the requirements for a trademarked logo specimen.
While that process is underway, you may choose to claim a common law trademark on anything you consider a distinctive symbol or name of your business. Trademark protection can attach the moment a mark is “used in commerce.” So if you print a logo on your label and start selling soup or party dresses, the mark can be considered defensible from that date.
Note you must use the TM symbol. It is not permitted to use a circle R symbol with an unregistered trademark.
The difference between a patent and a copyright is that a patent can be used to protect an idea. A copyright cannot. Patents can be filed to protect a process, recipe or mechanism.
If you believe you have a patentable idea, your first step will be to immediately stop communicating with anyone other than your attorney or persons subject to an airtight non-disclosure agreement. Your attorney is bound by privilege. Those under NDA cannot use your idea without your permission.
The second step is to assemble a patent application with the help of a patent attorney. Once your application reaches the U.S. Patent and Trademark Office you may qualify for protection.
Patents are required by law to be new and “non-obvious.” Inventing a handle for a box is rather obvious. Inventing a box that can preserve food for a year is non-obvious. The latter would likely qualify for a patent. The first would not.
Patents must also be new. Previous similar inventions are known as “prior art” and can dilute or disqualify an invention for protection.
Intellectual property is a complex field of law. It is always a good idea to obtain competent counsel, especially when you are developing your own product, designs, or methods. In the case of both patents and trademarks, the assistance of a qualified attorney is essential—don’t embark on this path alone. The information for this article was provided by professionals at the Thomas Jefferson School of Law, who offer a masters of law degree.
Dixie Somers is an Arizona-based freelance writer. Follow her @DixieSomers.