Posting your creative genius on the Internet can lead to a host of problems not commonly found in the “real world”. In the days before the proliferation of the world wide web, artisans and designers were lulled into a false sense of security by the lack of “corporate espionage.” After all, we are a community, right?
Wrong.
Your ideas are your ‘wealth’ and if you don’t take the proper steps to protect that wealth, you will feel hopeless and wonder where you went wrong as you watch your competitors benefit from your hard work. Before you start selling your products online, there are IP basics that you should familiarize yourself with and use to your advantage.
I recently spoke with business owners on this very topic and found a common statement in all of their stories; It is something like this:
“I was getting ready to contribute to a sample show and shared ideas for my sample products. Someone in an online community I belong to made the exact same article, including my exact writing and materials, and submitted it to the show before I could.”
Don’t let this happen to you.
Intellectual property can take the form of articles, ideas for a new business, or even products that you have developed and are selling through your website. The ways in which you legally protect your intellectual property vary depending on the type of property you seek to safeguard. Having a working knowledge of these methods will not only help you in your own business, but will also ensure that you do not infringe on the rights of others.
One of the most common mistakes people make is that they believe that any work without a copyright notice is free. While the correct form of copyright notice is “Copyright or © (date) by (author/owner)”, the absence of the word and/or mark does not give you the right to publish, use or take the worked.
Anything posted on the Internet after April 1, 1989 is copyrighted by the owner or author, whether or not there is a notice. You should assume that when you are viewing a website, the content is copyrighted, unless the author specifies otherwise.
However, this inherent copyright is not enough to protect your ideas from theft. As you develop your ideas and move to make them public (to someone else or to the entire world), you need to use a combination of contracts and legal registration to keep them safe.
If you plan to work with someone to further develop a product or idea (either an employee or a partner), you should consider having all parties involved sign a combined “non-disclosure, non-compete” agreement. This is a very basic contract that most attorneys can draft in a matter of minutes.
A nondisclosure agreement (also known as an NDA or confidentiality agreement) is a contract between parties that promise to protect the confidentiality of secret information that is disclosed during an employment, partnership, or other type of business transaction. If you have entered into a confidentiality agreement with someone who later uses your secret without their permission, you can ask the court to stop the violator from making further disclosures. You can also sue for damages caused by your disclosures.
Non-compete agreements protect you from losing valuable trade secrets and employees to someone who has previously worked with or for you. In a non-compete agreement, the parties agree not to work for a direct competitor for a specified period of time after leaving the current partnership or employment.
There is nothing more painful than seeing someone you trusted take your ideas and use them for their own personal gain. While it may seem ‘too much’ to require this type of document between friends, it is very common for friendships to fail over money and for one party to end up despised and penniless. If you work with someone who has access to confidential business information or trade secrets, you obviously want to prevent them from disclosing this information to your competitors and you should have a current employment contract.
Now that you’ve covered your ideas with legal documents, it’s time to consider registering them with the US Patent and Trademark Office. There are three ways to register your intellectual property: copyright, trademark, or patent. A copyright protects an original artistic or literary work; a patent protects an invention. A trademark is a bit more complicated as there are two types of trademarks. A regular trademark is a word, phrase, symbol, or design (or a combination thereof) that identifies and distinguishes your products from those of others. For example, the corporate giant Coca-Cola has its ‘swirl’ (a design) as a trademark.
The secondary type of trademark is called a service mark and is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. A perfect example of a service mark would be Blockbuster; is a service provider (video rental) that has registered its name with the US Patent and Trademark Office.
Trademarks are the most widely used form of protection by small businesses. Oddly enough, you don’t have to register your trademark with the government to use the (TM) symbol and claim trademark rights; you can establish those rights based on the legitimate use of the mark. However, should a problem arise in the future, having the trademark (as indicated by the (R) symbol) will provide you with the following benefits:
* the public that has registered the mark will be informed;
* the court will assume legal ownership of the mark and your exclusive right to use the mark throughout the country in connection with the products and/or services you listed in the registration;
* the ability to bring trademark infringement lawsuits in federal court;
* the ability to use US registration as a way to obtain registration in foreign countries; Y
* the ability to file US registration with the US Customs Service to prevent the importation of infringing foreign merchandise.
Anytime you claim rights to a trademark, you may use the “TM” (trademark) or “SM” (service mark) designation to alert others to your claim, regardless of whether you have filed an application with the USPTO for brand. . However, you can only use the federal registration symbol “®” after the USPTO has actually registered a mark; you cannot use it while a request is pending.
With a combination of common sense, legal documentation, and federal registration, you can be sure that you are the only one benefiting from your creativity, dedication, and hard work. For more information on the legal documents discussed here, visit CoolLawyer.com (http://www.coollawyer.com).
If you would like to begin the process of registering a trademark, service mark, patent, or copyright, visit the US Patent and Trademark Office at http://www.uspto.gov.
–Please note that this article is written for informational purposes only. It is not intended to be legal advice. Only an attorney can give you specific advice relevant to your situation. If you feel the need to further protect yourself or your ideas, be sure to speak with a local patent attorney. © 2005 by Tamara Dourney.
