Most people have a general understanding of what intellectual property is. It’s not physical property that you can touch or steal in the traditional sense. Intellectual property (sometimes referred to simply as IP) is more an idea than actual property. But legally, it functions in much the same way — because stealing a person’s idea is a crime in some cases. Of course, nothing is ever quite so simple.
Cornell University’s Legal Information Institute defines the legal term “intellectual property” as “any product of the human intellect that the law protects from unauthorized use by others. The ownership of intellectual property is traditionally comprised of four categories: patent, copyright, trademark, and trade secrets.”
One way that IP is different from personal property is that it represents more of an incentive for compensation. Certain types of IP aren’t owned by the creator forever.
For example, even a book is technically the author’s IP — but it bounces back to the public domain after a certain period of time, which means the author or his beneficiaries only have the rights to the ideas and characters but not the book itself. Pharmaceutical companies hold the rights to any drugs they create and manufacture, but other companies can use the formula to manufacture a generic version after a set period of time.
Trade secrets mean that certain information is protected by law. These secrets normally provide the business that owns them a competitive advantage. The most obvious example of a trade secret is a recipe. Others involve software, algorithms, marketing strategies, etc.
More often mixed up are the next three types of IP: patents, copyrights, and trademarks.
Acquiring a patent provides the IP owner with limited-time protection for that IP. The idea behind it is that the product is new and provides an obvious benefit to society. The aforementioned example of a drug manufacturer applies.
By comparison, a copyright protects authorship. The aforementioned example of a writer’s work applies. You need not apply for a copyright. Once you produce a work of art — in any form — it is automatically protected by law. This allows anyone to file a lawsuit when their work is plagiarized.
Trademarks protect ideas normally represented by symbols or icons. For example, a brand name (such as General Mills or Charmin) can be trademarked for legal protection. Generally, an obscure shoe manufacturer could not use the name Nike because that name is already trademarked.
Sometimes when the products behind the brand are easily distinguished from one another, the same name can legally be used for branding. For example, Delta Faucets and Delta Airlines obviously use the same brand name — but you would be hard-pressed to confuse the two companies. You need not register your trademark, but an IP lawyer would still urge you to do so, especially if your IP is still new, fresh, or relatively small and unknown.
Check our partners at sederlaw.com for more information on IP and how to protect it.