The term “Intellectual Property” is thrown around quite a bit in business these days, but what does it really mean? Intellectual property rights, or IP as it is commonly known, are the legally recognized exclusive rights to creations of the mind. A Company’s intellectual property can have as much, or more, value to the business as the business’s tangible property such as buildings, furniture, and land. Identifying your company’s intellectual property assets, knowing what protections can be afforded, and how to protect it is essential to protecting the business you have spent so much time and energy growing.
“Intellectual Property Law” encompasses five closely related fields: (1) copyright law; (2) trademark, service marks, and unfair competition law; (3) trade secret law; (4) patent law; and (5) the right of publicity. While each of these fields can fill volumes, we will only scratch the surface in this article where we will briefly explain and provide the basic information you should know with respect to each field.
Copyright is a protection provided to the author of an “original works of authorship” which includes both published and unpublished literary, dramatic, musical, artistic, and certain other intellectual works. Copyright law gives the owner of a copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies of the copyrighted work, to perform the work publicly, or to display the work publicly.
A copyright protects the form of the work rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. You would need to seek patent protection in order to protect the machine itself.
With respect to the Death Care industry, it is important to understand where copyright law might apply. The key is the work is an original work created by the author. I am sure you can think of the virtually unlimited works to which this might apply. Poems, songs, memorials, advertisement copy, online music and videos, even obituaries are all capable of being provided copyright protection.
You don’t need to file anything in order to obtain copyright protection. You receive some protection by simply “publishing” (that is, creating) the work. If you mark the work with the year of publication and the “©” logo and your name, you receive additional protection by setting the date of publication.
Generally speaking, a trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. Marks used by a company can function as both.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks that are used in interstate or foreign commerce may be registered with the Patent and Trademark Office.
Unfair competition laws protect businesses from acts that cause an economic injury to a business through a deceptive or wrongful business practice. There are federal and state laws that protect businesses from unfair competition.
The purpose of all of these laws is to protect the consumer, and, correspondingly, other businesses, from false, misleading, and deceptive actions that confuse the consumer or defraud them into purchasing something other than what they intended.
A trade secret is any valuable business information that is not generally known and is subject to reasonable efforts to preserve confidentiality. Trade secrets are protected from use by those who either obtain access through improper means or who breach a promise to keep the information confidential.
While there are laws that protect such information, much of the responsibility of protecting the trade secret information rests with the party seeking to protect it. For example, if everyone in a company has access to the information freely and it is not designated as protected or confidential, the information will probably not be protected under the trade secret laws. On the other hand, if access to specific information that is not widely known is restricted to a certain, limited number of individuals, and the information is designated as confidential (either on its face or in a document such as a nondisclosure agreement, signed by those with access) that information will probably be given protection under trade secret laws.
The key here is to examine what business information your company has that you would not want your competitors to have, restrict access to that information (password protected, etc.) to only those who need to know it, and to so designate that information by marking it “CONFIDENTIAL,” “PROPRIETARY,” or “TRADE SECRET.” Additionally, as a part of your company’s handbook and employment paperwork, employees should acknowledge that they might have access to certain confidential, proprietary, or trade secret information, and that as an employee with access to this information they agree to not disclose that information and documents to third parties and others who are not authorized to receive such information. In addition, upon leaving the employment of the company, they agree that the nondisclosure obligation will continue and that they will return and/or destroy any such information.
A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office or similar agency of other countries. A patent gives the patent owner the right to prevent others from making, using, or selling the claimed invention within the United States or country of issue.
The “right of publicity” is the right of every human being, not company, to control the commercial use of his or her identity. This identity can be embodied in that individual’s name, nickname, stage name, pen name, picture, photograph, voice (particularly a distinctive voice), or any object closely identified with that person. Someone can infringe on the individual’s right of publicity by any unauthorized use in which the individual is identifiable.
You might deal with this subject in the death care industry if you are dealing with advertisements, endorsements, or some other similar commercial use. The key is, if you are using some identifiable characteristic of an individual, you need to make sure that you have full authorization to use it before you publish it.
While this short primer isn’t all you need to know to protect the intellectual property your business owns and creates, it is hopefully enough for you to understand the different issues you might be facing in operating your business.
The bottom line is that the more value your intellectual property has to your business, the more you should do to protect it. Trade names, trade and service marks, and any other identifiable representation of your business are how consumers know it is you they are dealing with, and not someone else. The more successful you are, the more you need to do to protect your intellectual property. That is not to say that you don’t need to consider protecting your intellectual property before you even open your business, because you do. You need to consider how to protect your business before it can be compromised, and most protections will give deference to the earlier creation/publication of the IP.
In closing, it is important to note that each jurisdiction treats each of these protections a little differently, and it is important to check with an attorney to make sure that the measures you are employing are the best way to protect your intellectual property and your business.