What’s the best way to protect a small business? Usually, I answer by saying a good place to start is through incorporating or forming an LLC entity structure.
However, you can’t use a legal formation to protect business ideas. The best way to protect original business ideas is by filing for the appropriate form of protection: trademarks, copyrights, and patents.
How does each method help protect original ideas? Let’s review what each term means and how these filings enable entrepreneurs to claim ownership on their intellectual property.
What is a trademark?
Every business has a trademark. It may be your business name, logo, a design, phrase, tagline, or even a brand mascot. These marks allow you to distinguish your business from its competition and emphasize the uniqueness of the company to the world.
How does a trademark protect intellectual property?
Registering for a trademark allows the trademark’s owner to receive exclusive rights to these valuable forms of intellectual property.
Unregistered trademarks are at risk of being infringed upon or plagiarized by third parties. It becomes much more difficult for the owner to fight for their trademark because it was never registered at the federal level. However, this is not the case for registered trademarks. If someone attempts to use a registered trademark without authorization, the owner may take legal action to ensure the protection of their IP.
Before filing for a trademark, conduct a name search. You may search through the United States Patent and Trademark Office’s Trademark Electronic Search System (TESS) or work alongside a third-party trademark filing provider. Conducting a search ensures that the mark is available and is not pending registration, or has already been registered, elsewhere. Once you find out your mark is available, you may begin filing a trademark application.
What is a copyright?
A copyright is sometimes confused as having the same meaning as a trademark. Both are forms of protection for intellectual property. However, a copyright works to protect original works of authorship. Some of these works of authorship may include, but are not limited to the following:
- Literary works, such as books or poetry.
- Performing arts, like music, lyrics, and scripts.
- Visual arts, including artwork, paintings, sculptures, and architecture.
- Motion pictures, like movies, TV shows, and video games.
- Photographs, such as news photos, wedding pictures, and even selfies.
- Digital content, including websites and blogs.
How does a copyright protect original works of authorship?
While we realize much of this article is on the topic of protecting business ideas, filing for a copyright cannot protect an idea. Ideas, facts, systems, and methods of operation may not receive a copyright, according to the U.S. Copyright Office.
However, original works of authorship — both published and unpublished alike — are eligible for copyright registration. As soon as someone has created these works, they are considered the author of said works and will need a copyright to protect it.
Similar to filing for a trademark, remember to conduct a copyright search. This ensures your copyright is unique and available before filing a copyright application. You may search for registered copyrights with the help of the U.S. Copyright Office’s public catalog tool.
What is a patent?
A patent is a specific form of protection for businesses. According to the USPTO, patents protect the mechanisms, principles, and components of an invention. You may have invented or discovered a new invention, but how can you determine that this invention should receive a patent?
How does a patent protect inventions?
First, it’s important to figure out if you have an invention that may receive a patent. This invention must be useful, and it should be in a category that positions it for patent eligibility, such as being a process or machine.
Once you understand that your invention may receive a patent, you may start exploring patent options. There are three types of patents at the present time:
- Utility patents. These are the most common types of patents. This patent is for inventions that are a useful process, machine, article of manufacture, composition of matter, or new or useful improvement.
- Design patents. This patent is for inventors that invent a new, original, and ornamental design for an article of manufacture.
- Plant patents. If an inventor invents, discovers, or asexually reproduces a new variety of plant, the inventor will file for a plant patent.
Unlike filing for trademark or copyright protection, applying for a patent requires a filing strategy. Consider working with a patent attorney if you have questions about the process. They will be able to determine the type of application you will file for a patent (which may be provisional or nonprovisional), what you will need to complete the application, and provide additional information about filing fees to ensure you are ready to submit your patent application for approval.