The idea of intellectual property might elicit images of Silicon Valley and circuit boards, but the truth is that protections afforded to intellectual property can and should be taken advantage of by most businesses. Intellectual property most popularly comes in the form of copyrights, trademarks, and patents. Each of these categories has various protections afforded by federal and/or state statutes and common law.
On the most basic level, copyrights protect original works that are “fixed in a tangible medium of expression.” The fixation requirement means that copyrights do not cover mere ideas—that idea has to be sufficiently permanent to be perceived, reproduced, or otherwise communicated. For example, a story that has been thought up but not written down would not be protectable by copyright. The most common types of copyrightable materials are books, poems, plays, and songs.
Patents are granted to the inventor of innovative technology. The technology does not have to be electronic, but must be new, useful, and non-obvious. Although the inventions in the tech world fall under this type of protection, so do silly ideas such as the sun mask towel, which is, for all purposes, a towel with holes cut out for your eyes, nose, and mouth. Patents must be granted by the federal government, and no protections are afforded to the technology prior to the patent being granted.
For a small business, trademarks may be the most valuable intellectual property tool worth investing in. Trademarks protect words, phrases, symbols, and designs (or a combination thereof) that identify and distinguish the source of goods or services. For example, your business name, motto, and logo can be given a trademark. Even the colors and fonts chosen for the trademark can be protectable. For a small brewery, the name of the business and logo could be trademarked, but each individually named beer could also be trademarked.
It’s important to note that not all words can be trademarks. For example, a trademark of “Beer Tasting Room” to describe a brewery that provides tastings of its beer would not generally pass the trademark test, because it’s too generic, and is a general description that could be used to describe any brewery’s tasting room. In order to be a valid trademark, the name must be more than a description of the product or service.
Trademarks can be registered at the state or federal level, depending on where you do business. Although an official registration is not necessary to hold a valid trademark, the benefits of registering are vast. Registration puts other people and businesses on notice that you own the trademark, so they are less likely to try to use it. It also provides the trademark holder the ability to collect certain damages if a lawsuit arises, including (in federal cases) treble damages and attorney fees.
A valid trademark ensures that other people and businesses cannot use your trademark for their own goods or services. This can prevent others from taking advantage of your business’s goodwill, or attempting to confuse consumers into thinking that their product is from the same source as yours.
Most importantly, a valid trademark can also provide peace of mind that your business will not be in trademark trouble for violating someone else’s trademark. For example, White Flame Brewing Co. of Hudsonville, MI and Three Floyds Brewing Co. of Munster, MI just settled a disagreement over who the rightful owner of “Black Flame” was. “Black Flame” was the name of each brewery’s imperial stout this year.
Although the “Black Flame” dispute was resolved amicably, many trademark disputes are not so friendly, and can cost a business substantial expense in rebranding and litigation. O’so Brewing Co. of Plover, WI just announced that, following a trademark dispute with “Night Train Express” (a wine from E&J Gallo), they would have to change the name of their “Night Train” oatmeal porter. The costs associated may be significant, including removing all packaging materials with the infringing trademark, advertising materials, and coming up with a new plan. At this point, there does not appear to be an official court case looming, but if there was, statutory fees and punitive damages could also be tacked on to the bill.
Intellectual property is a valuable asset that businesses should safeguard. For information on protecting your business’s valuable intangible property, contact the attorneys at Murphy, Campbell, Alliston, & Quinn.
By: Aerin Murphy
The information presented in this article is intended for general educational purposes. It is not intended to be legal advice. Every company or person’s situation is different and requires individual analysis by competent counsel before legal advice can be rendered. If you are confronted by a legal issue retain competent legal counsel to advise you immediately. This article is not a substitute for legal advice from an attorney licensed to practice in your jurisdiction.