Publishing your creative genius on the internet can lead to a wealth of problems not commonly found in the ‘real world’. In the days before the proliferation of the world wide web, crafters and designers were lulled into a false sense of security by the lack of ‘corporate espionage’. After all, we’re a community, right?
Wrong.
Your ideas are your ‘wealth’ and if you do not take the proper steps to protect that wealth, you will be left feeling hopeless and wondering where you went wrong as you watch your competitors profit off of your hard work. Before you begin to sell your wares on the ‘net, there are basic concepts of intellectual property that you should be familiar with and use to your advantage.
I recently spoke with business owners about this very topic and found a common statement in all their stories; it goes something like this:
“I was preparing to contribute to a sample program and shared the ideas for my sample products. A person in an online community I belong to made exactly the same item- including my exact wording and materials- and sent it to the program before I could.”
Don’t let this happen to you.
Intellectual property can take the form of articles, ideas for a new business or even products you’ve developed and are selling via your website. The ways you legally protect your intellectual property vary based on the type of property you are seeking to safeguard. Having a working knowledge of these methods will not only assist you in your own business, but will also assure that you do not infringe upon the rights of others.
One of the most common mistakes made by individuals is that they believe that any work without a copyright notice is free for the taking. While the correct form of copyright notice is “Copyright or © (date) by (author/owner)” the absence of either the word and/or the mark does not give you the right to post, use, or take the work.
Everything published on the internet after April 1, 1989 is copyrighted by the owner or author whether is has a notice or not. You must assume that when you are viewing a website that the content is copyrighted, unless otherwise specified by the author.
However, this inherent copyright is not enough to protect your ideas from theft. As you develop your ideas and move towards making them public (to another individual or the entire world) you need to use a combination of contracts and legal registration to keep them safe.
If you are planning on working with someone to further develop a product or idea (be they employee or partner) you should consider having all parties involved sign a combination “nondisclosure no compete” contract. This is a very basic contract that can be drawn up by most attorneys in a matter of minutes.
A nondisclosure agreement (also referred to as an NDA or a confidentiality agreement) is a contract between parties who promise to protect the confidentiality of secret information that is disclosed during employment, a partnership, or another type of business transaction. If you have entered into a nondisclosure agreement with someone who later uses your secret without your authorization, you can petition the court to stop the violator from making any further disclosures. You can also sue for damages incurred from their disclosures.
Noncompete agreements protect you from losing valuable trade secrets and employees to someone who has previously worked with or for you. In a noncompete agreement, the parties promise not to work for a direct competitor for a specified period of time after leaving the current partnership or employment.
There is nothing more painful than to watch someone you once trusted take your ideas and use them for their own personal gain. While it may seem ‘a little much’ to require this type of document among friends, it is very common for friendships to fail over money and one party to end up slighted and penniless. If you work with anyone who has access to sensitive business information or trade secrets, you will obviously want to prevent them from disclosing this information to your competitors and should move to have a working contract in place.
Now that you’ve covered your ideas with legal documents, it’s time to consider registering them with the US Patent and Trademark Office. There are three ways that you can register your intellectual property: copyright, trademark, or patent. A copyright protects an original artistic or literary work; a patent protects an invention. A trademark is slightly more complicated as there are two types of registered marks. A regular trademark is a word, phrase, symbol or design (or a combination thereof) that identifies and distinguishes your products from those of others. For example, the corporate giant Coca-Cola has their ‘swirl’ (a design) trademarked.
The secondary type of trademark is called a service mark, and is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. A perfect example of a service mark would be Blockbuster; they are a service provider (video rentals) who has registered their name with the US Patent and Trademark Office.
Trademarks are the most commonly used form of protection for small businesses. Strangely enough, you do not have to register your mark with the government in order to use the (TM) symbol and claim the rights to the mark- you can establish those rights based on legitimate use of the mark. However, should a problem arise in the future, having the mark registered (as denoted by the (R) symbol) will offer you the following benefits:
* the public will be informed that you have registered the mark;
* the court will assume legal ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the products and/or services you listed in the registration;
* the ability to bring infringement lawsuits over the mark to a federal court;
* the ability to use the U.S registration as a way to obtain registration in foreign countries; and
* the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.
Any time you claim the rights to a mark, you may use the “TM” (trademark) or “SM” (service mark) designation to alert others to your claim, regardless of whether you have filed an application with the USPTO for the mark. However, you can only use the federal registration symbol “®” after the USPTO actually registered a mark- you can not use it while an application is pending.
With a combination of common sense, legal documentation and Federal registration, you can ensure that you are the only one to profit off your creativity, dedication and hard work. To find out more information on the legal documents discussed here, please visit CoolLawyer.com (http://www.coollawyer.com).
If you’d like to begin the process of registering a trademark, service mark, patent or copyright, please visit the US Patent and Trademark office at http://www.uspto.gov.
–Please note that this article is written for informational purposes only. It is not intended as legal advice. Only a lawyer can provide you with specific advice relevant to your situation. Should you feel the need to protect yourself or your ideas further, be sure you speak to a local patent attorney. © 2005 by Tamara Dourney.
