Intellectual Property Laws: What Small Businesses Should Know
U.S. Laws on Copyrights, Trademarks, Patents, and Trade Secrets
Your business may have intellectual property (IP)—copyrights, trademarks, patents, trade secrets—in addition to other types of business property (buildings, equipment, and vehicles, for example). If your IP is infringed on (stolen), U.S. federal and state laws and international regulations can be used to help you take your case to court and defend your property rights.
Copyright is a process of protecting original works, including books, music, research, photos, social media, and other forms of what the U.S. Copyright Office calls “creative expression.” The most recent copyright law was enacted in 1976, with many amendments since.
You don’t have to register a copyright; it’s valid as soon as you publish the work. You can also attach the copyright symbol (©) with a date and the name of the copyright holder to a work to enhance protection.
For the best protection against infringement, register your copyright with the Copyright Office. This article on Copyright Basics can give you more information on what types of works can be copyrighted, and how the process works.
Copyrights and Online Media
The Digital Millennium Copyright Act of 1998 (DMCA), a major revision of the copyright law, provides international copyright protection for certain works through the World International Property Organization (WIPO). This law includes agreements between member countries for rights on computer programs and databases in addition to other works.
The most important part of the DMCA for copyright holders involves a takedown notice process for removing online content that is allegedly violating a copyright. If you think someone is stealing your online content, you can send a notice to their internet service provider (ISP) to start the process of removing the offending content.
U.S. trademark law begins with the Trademark Act of 1946, administered by the U.S. Patent and Trademark Office (USPTO). A trademark is a word, phrase, symbol, or design (or a combination) that identifies and distinguishes your company’s products from those of others. Service marks are the same except that they distinguish services.
You can register your trademark with the USPTO, but the trademark law doesn’t decide whether you have the right to use your trademark. Some marks can’t be registered because they can’t be protected. For example, you may not be able to register a generic word (like “milk,” for example) because everyone uses these words.
State and International Trademark Registration
You may also want to register your trademark with your state. State registration is quicker and easier than federal registration, but it only protects your trademark in your state, and you can’t use the federal designation (®).
Once you’ve registered your trademark, you must monitor it to be sure no one is using it illegally. You will need the help of an attorney to send a demand letter to require someone to stop using your trademark. If you fail to protect your trademark, you might lose the exclusive right to use it.
Patents are more complex than trademarks or copyrights because the subject matter (inventions) is more complex. Major amendments to U.S. patent law in 2011 and 2013, called the America Invents Act (AIA), dramatically changed the way patents are filed by bringing patent processes in line with those of most other countries.
A patent grants property rights to an inventor for an invention for new, original, and useful processes, products, designs, or plants. Once the USPTO has approved the patent, the inventor has the right to keep others from making, using, offering for sale, or selling the invention.
How the New Patent Law Works
Originally, the U.S. patent system worked on a first-to-invent system in which a patent application was filed without review or challenge. The new system, which went into effect on March 16, 2013, is a first-to-file system that allows an inventor who filed a later application to contest inventorship on a previously filed application if the latter is shown to have derived subject matter from the inventor who files the later application.
Trade Secrets Laws
A trade secret is information that your business has kept confidential because it has actual or potential independent economic value to your company as well as to others who cannot legitimately obtain it. Examples of trade secrets include formulas for making a product, computer programs and apps, methods, techniques, and processes.
The Economic Espionage Act (EEA) of 1996 makes the theft or misappropriation of trade secrets a criminal act. One part of the law deals with foreign economic espionage and the second part makes criminal common types of commercial theft of trade secrets.
The EEA has both criminal and civil penalties and it includes conduct by U.S. citizens or permanent resident aliens outside the U.S. An amendment in 2016, called the Defend Trade Secrets Act, sets up a way for you to take private civil action against theft in the U.S. court system.
The Bottom Line
These intellectual property laws are in place to help you deal with theft of your business IP, but it’s always better to protect your IP yourself to lower the possibility of theft. If you think someone may have taken and used your IP illegally, gather your evidence and talk to a licensed U.S. attorney or registered patent agent.
U.S. Copyright Office. "The Compendium of U.S. Copyright Office Practices: Chapter 300." Page 6. Accessed Oct. 6, 2020.
U.S. Copyright Office. "Copyright Law of the United States." Accessed Oct. 6, 2020.
U.S. Copyright Office. "Circular 1 Copyright Basics." Page 4. Accessed Oct. 6, 2020.
New York Law Journal. "What is the Difference Between a State and Federal Trademark?" Accessed Oct. 6, 2020.
The National Law Review. "Summary of the America Invents Act." Accessed Oct. 6, 2020.