Protecting Intellectual Property
By Ronald I. Paltrowitz, Esq.
Very often, clients who are beginning new businesses or expanding those already in existence come to me with questions as to how they can protect what they consider to be property that is unique to their businesses. It is not uncommon that there be some confusion about the types of property that may be protected by copyright, trademark or service mark , patent, or otherwise. This being so, I thought that a brief primer might be helpful.
First, let’s start with some simple definitions: (1) Property is something belonging to someone; (2) Real Property is property consisting of land and/or buildings; (3) Personal Property is all of someone’s tangible property other than real property; and (4) Intellectual Property is intangible property that is the result of creativity. Thus, the term Intellectual Property refers to creations of the mind including, but not limited to, literary and artistic works, symbols, names, images, designs, and inventions (usually referred to collectively in legal documents as the “Work”). Most of one’s creative ideas may be protected either by common law (law that is based upon judicial decisions rather than statutes) or by federal and state statutes. At the federal level these statute are included in the United States Code. Title 17 of the Code covers Copyrights while Trademarks and Patents are covered in Titles 15 and 35, respectively.
Federal Copyright and Trademark statutes, unlike patents which are granted by the government, do not create a copyright, trademark or service mark. A creator’s intellectual property rights arise contemporaneously with the reduction of the creator’s idea to some tangible form. For example, as I created this article, I obtained a copyright in its content, which I evidence by the symbol © that you can see below. Rather, the purpose for registering the copyright or the trademark is to place the world on notice of the date that that you either created or first used the Work in commerce and that you claim ownership of the Work. In addition, you may institute actions for infringement in federal courts and collect statutory damages and/or legal fees. As an example, statutory damages for copyright infringement can be as much as $150,000.00 per Work and $100,000.00 for trademark infringement. However, it is critical that you comply with the registration requirement of the various statutes to insure that you will be entitled to these benefits.
Briefly, then, you may register a copyright for any original works of authorship including literary, musical, dramatic, , choreography, pictorial, graphic, sculpture, motion picture and other audiovisual works, recordings, and unique designs. You may register a trademark for logos, business names, brand names, and other specific forms of identification of goods or services. You may obtain a patent for any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, as long as the invention (i) was not known or used by others in this country; or (ii) was not patented or described in a publication in this or a foreign country before the invention; or (iii) was not in public use or on sale in the foreign country more than one year prior to the application for patent in the United States.
Obviously, these matters are complicated and should not be undertaken without the assistance of knowledgeable legal counsel.
© 2010 Ronald I. Paltrowitz, Esq. Ronald I. Paltrowitz, acting as an outsourced general counsel for his clients, provides legal and business counseling to entrepreneurs and closely held enterprises in the areas of corporate and business law, real estate, intellectual property, and commercial litigation and arbitration. Mr. Paltrowitz is also Vice-President and General Counsel of the Manhattan Chamber of Commerce. This column is for your general information only and does not substitute for legal or accounting advice regarding your specific situation.