IP protection advice for startups

We’ve all likely seen them: the common law trademark symbol (™), the registered trademark symbol (®) and the registered copyright symbol (©).  These are the symbols for trademark and copyright, legal protections that are in many ways like the adage used when it looks like rain: It’s better to have an umbrella and not need it than to need it and not have it.

Intellectual property — what it is and how to protect it — is a crucially important topic for businesses, particularly in Northwest Arkansas, where startups form a large part of our economic ecosystem.

It’s a complex topic, and it is important for businesses to seek legal advice to inform strategy and implementation of intellectual property protection. Let’s start with the basic categories of intellectual property:

• Trademarks: These protect the names, logos and brands of businesses.
• Copyright: This covers creative works like music, writing and photography.
• Patents: These protect your idea by publicly disclosing it to the public.
• Trade secrets: These can pertain to a variety of things, such as chemical formulas, food recipes, manufacturing techniques, marketing strategies, product designs and customer and contact lists. The secrets remain valuable only so long as they remain secret.

What are some things to consider in each category? As to trademarks, every business has a name, and that name is valuable. This is why care should be used to ensure your trademark rights are protected.

Technology has made it easier for brands to either surveil for infractions or just happen across them. In a case where two companies have the same name, and they are selling similar goods or services, the company who first used the name as its trademark (the “senior user”) will generally have superior rights, at least in its locale.

However, a junior user who takes the extra step of federally registering its trademark will typically acquire superior rights throughout the country, except in the specific locale where the senior user operates. A junior user can thereby attain much broader rights than a senior user if the junior user is more diligent in proactively registering its trademark.

The next area is copyright. Copyright infringement is an intellectual property issue most people are familiar with from high-profile cases in the news. The stories often involve a musician attempting to enforce his/her rights under copyright law. But how does someone obtain a copyright in the first place? Surprisingly, it is quite simple and automatic: When you put pen to paper, click record on your camera, or begin programming code, you are creating copyright-protected works, assuming they meet the relatively low bar for originality and creativity. There are benefits to taking the extra step of formally registering your copyright, but you attain your copyright the moment you express your creativity in a tangible form.

Patents and trade secrets are two very different ways to protect valuable ideas and inventions. Under patent law, you protect your idea by publicly disclosing the invention to the public. In exchange for public disclosure, you receive a monopoly on the invention for 20 years.

In contrast, trade secrets remain valuable only so long as they are kept secret. A public disclosure would destroy trade secret protection, and in that way, patents and trade secrets represent two very different and incompatible intellectual property protection strategies. Which one is best for protecting your intellectual property depends on a variety of considerations that should be assessed by legal counsel on a case-by-case basis.

A company’s intellectual property is a competitive advantage and a valuable asset on its balance sheet. But care must be used, as a lack of an intellectual property strategy can lead to costly headaches at best and catastrophic losses at worst.

An attorney who specializes in such cases can assess and identify the solution that best meets your business needs. If you would like to learn more, Rose Law Firm is presenting at 3 p.m. on Monday (Oct. 30) at the NWA Tech Summit in Rogers.

Adam Hopkins is a Rogers-based IP attorney with Rose Law Firm. The opinions expressed are those of the author.