History of Intellectual Property Protection
The U.S. Constitution declares: “Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
From this enabling passage, U.S. Congresses progressively set up legal protections for intellectual property. Trademarks, patents, and copyrights are all fairly well-known branches of IP, as those rights are usually clearly represented by the owner on their products, marketing, or images. However, trade secrets — which are not registered with the government— are also protected.
The first copyright law was passed in 1790, two years after the ratification of the Constitution, and has been repeatedly updated, most recently in 1978. Copyright law protects works of art and creation, whether songs, books, movies, paintings, journals, photographs, computer programs, structures – literally anything you can read or see. But the bottom line is that these works must display creativity.
As the U.S. Supreme Court has ruled, a work must have a “spark” or “modicum” of creativity to earn copyright protection. Though copyright protection is automatic, to protect oneself more fully and universally, your work should be registered with the U.S. Copyright Office to establish firm ownership rights.
Patents are also registerable, but with the U.S. Patent and Trademark Office (USPTO). We are all probably most familiar with what are known as utility patents. Utility patents govern inventions and the like, and this is the broadest category of patents.
Another type is a design patent. Still, another is a plant patent, for which someone must create a whole new type of living plant. Similar to a copyright, a patent establishes ownership and a date from which the ownership originates. This allows the patent holder to hold others liable for infringement. However, a USPTO patent pertains only to the U.S. Other countries have their own patent laws, so you need to seek out a patent attorney if you desire U.S. as well as worldwide protection.
Trademark protection is available for a name, logo, symbol, phrase, or image for a new product or service. Your mark can be registered with the USPTO, much like a patent, and registration will likewise provide nationwide (but not worldwide) protection for your mark.
While common law extends trademark protection without any USPTO registration, that protection is geographically limited and it also presents a huge challenge if someone comes up with something the same or similar to your mark before you did. Registration establishes not only ownership but also the date of that ownership.
A trade secret is generally defined as something that no one else can come up with given normally available information. It can be an idea, concept, marketing strategy, customer database, algorithm, recipe, formula, machine, process, or just about anything that gives a business (a trade) a competitive advantage over its rivals.
Trade secrets are not registered because, to put it simply, the owner doesn’t want anyone to have access to their secret. If you register a patent, copyright or trademark, it becomes publicly available, inviting imitation and infringement. A trade secret is deemed so essential to the owner that he or she doesn’t want anyone to come close to it. Coca-Cola, for instance, is said to keep its formula in a fault to which only two people ever have access.
That is the key to a trade secret, which enjoys legal protection only if the owner exerts special effort to keep others from accessing it. This usually involves allowing only essential personnel the password or other means to make use of it, or even to learn of it. It also involves having those personnel sign nondisclosure agreements (NDAs). The Defend Trade Secrets Act of 2016 allows for litigation for those who misappropriate – or steal – your trade secret.
Should You Sue for Infringement or Theft of Your Intellectual Property?
Litigation, of course, can be lengthy, expensive and iffy, and if you have a trade secret, you may have to reveal it in public during legal proceedings. Therefore, litigation might be viewed as the IP measure of last resort, but it is sometimes necessary when other means, such as a demand letter, negotiation, mediation or arbitration, fall short, and your financial prospects are threatened.
The key is to consult with an experienced IP attorney before taking any action on your own, but do so immediately upon learning, or suspecting, an infringement or violation has occurred.
COFFYLAW, LLC protects and defends your creations and inventions, preventing others from misappropriating what you have accomplished by providing high-level IP litigation services.
Your IP litigation attorney will walk through the process of preparing for and filing a complaint if and when necessary, track the progress, provide you with updates throughout the process, and provide recommendations on the best way to protect your brand, idea, and intellectual property.