The Coca-Cola formula. The Nike swoosh. The NBC chimes. Intellectual property (IP) is all around us. And the law can protect it through patents, trademarks, copyrights, trade secrets, trade dress and right to publicity. But as the nation moves toward an information economy—where information is an intangible asset—the ever-expanding IP field is becoming more vulnerable. “Because of the Internet, it is so easy to obtain other’s IP,” notes Emmett McAuliffe of Riezman Berger.
Bernard Gerdelman at Paule, Camazine & Blumenthal echoes that IP infringement is increasingly common. The major industries where IP cases arise are manufacturing, technology and commerce. For example, Getty Images often has to bring cases against unauthorized copying of its online photos, Gerdelman says. And St. Louis Cardinals great Mark McGwire successfully sued under the right of publicity to have bats with his counterfeit signature removed from commercial circulation, he adds.
When it comes to companies, IP theft can be devastating, McAuliffe says. For example, an employee could take a former employer’s customer list upon his exit, or two business partners could split without establishing ownership of trade secrets. “Ownership of solid IP really is a business’ way of ensuring its sweat equity won’t be siphoned off by competitors intentionally or unintentionally,” McAuliffe notes.
But Gerdelman and McAuliffe say businesses can put up a good defense by taking these precautionary steps:
• Protect your company’s IP through registration of a patent, copyright or trademark.
• For trade secrets, employees should be required to sign a confidentiality agreement, IP should be shielded by passwords, confidential documents should be marked accordingly and have a limited circulation, and, where necessary, areas of the business’ facilities should have a badge entry system.
McAuliffe notes that protecting your IP does not extend to ideas themselves. “You can’t lock up an idea.” That idea has to materialize into a product or service before it can be protected by law. But once you have an original creation, McAuliffe says an IP lawyer can help with filing the appropriate protective applications with the federal government. “We can advise you if you have a business that is going to have a large number of copyrights of trademarks.” The registration process for patents can take years, while trademarks typically take six to nine months and copyrights take three to six months. “The good news is your priority date is the filing date, not the date the registration is granted,” McAuliffe notes. “So it’s important to file as soon as possible. Otherwise you are a sitting duck for someone to steal your IP.”
Local attorneys describe and provide examples of the most common forms of intellectual property protection:
• Patent: Protects the process or method for producing a useful item or result, i.e. a machine or a chemical compound, for 20 years.
• Copyright: Protects the expression of a concept, i.e. art, books, films, music or computer software, for the life of the author, plus 70 years.
• Trademark: Protects your commercial identity, name, mark or symbol attached to goods and services traded in a commercial marketplace, i.e. smells, such as cut grass for tennis balls; shapes, such as soft drink bottles; colors, such as red for fizzy drinks; words, such as Coca-Cola, and sounds, such as NBC’s chime notes, for a potentially indefinite amount of time.
• Trade secrets: Any formula, process, program or other information used in a business that is not generally known in the industry, i.e. the Coca-Cola formula, customer lists; can be protected for a potentially indefinite amount of time.
• Trade dress: A visually distinct creation, or how a product or service is presented to the public, i.e. packaging, building décor; can be protected for a potentially indefinite amount of time.
• Right of publicity: A statutory and common law right to limit the public use of a person’s name, likeness and/or identity, particularly for commercial purposes, i.e. a movie, music or sports star, can be protected for the life of the person, plus 70 years.