Intellectual property

Intellectual property (IP) is a cornerstone of innovation and creativity, providing legal protection for ideas, inventions, and creations. In the United States, intellectual property laws safeguard the rights of creators, inventors, and businesses, ensuring they can benefit from their work. However, to the average person, the types of intellectual property can often be confused and/or conflated. This is perfectly understandable as sometimes even courts can struggle with the distinction. This article explains the most significant types of intellectual property, the types of works they protect, and how long that protection lasts.

Copyright

Copyright is one of the most well-known forms of intellectual property, protecting creative works of authorship. It grants the creator exclusive rights to reproduce, distribute, perform, display, or create derivative works from their original creation.

What Does Copyright Protect?

Copyright applies to original works that are fixed in a tangible medium. This means the work must be recorded or written down in some form.
Examples include:
Literary works (books, articles, poems).
Musical compositions and recordings.
Visual art (paintings, photographs, sculptures).
Films, TV shows, and videos.
Software code.
Architectural designs.

What Cannot Be Copyrighted?

Copyright does not protect:
Ideas, methods, or concepts.
Facts or data.
Titles, names, or short phrases.

Duration of Copyright Protection

The length of copyright protection depends on when the work was created:
For works created after January 1, 1978: Protection lasts for the life of the author plus 70 years.
For works created by corporations (works for hire): Protection lasts 95 years from publication or 120 years from creation, whichever is shorter.

2. Trademark

Trademarks protect symbols, words, phrases, designs, or combinations thereof that identify and distinguish goods or services. Trademarks ensure consumers can recognize the source of a product or service, protecting both the business and its customers. Trademarks can be both registered and unregistered, with each conferring different rights to the owner.

What Does Trademark Protect?

Trademarks can protect:
Brand names (e.g., Nike, Apple).
Logos (e.g., the Nike swoosh).
Slogans (e.g., “Just Do It”).
Packaging (e.g., Coca-Cola’s bottle design, also known as trade dress).
Sounds (e.g., NBC’s chime tone).

What Cannot Be Trademarked?

Trademarks cannot protect:
Generic terms (e.g., “computer” for a computer brand).
Descriptive terms without a secondary meaning (e.g., “delicious apples”).
Functional designs (e.g., a product feature essential to its use).

Duration of Trademark Protection

Trademark protection can last indefinitely as long as the owner continues to use the trademark in commerce and the trademark itself remains distinctive (i.e., it does not become the generic word for a particular good, as was the case for “Escalator” for moving staircases).
If the trademark is registered, it will last indefinitely provided the owner provide the United States Patent and Trademark Office with periodic maintenance filings as required by law.

3. Patent

A patent provides exclusive rights to an inventor, allowing them to prevent others from making, using, selling, or distributing their invention without permission. Patents are designed to encourage innovation by rewarding inventors with temporary monopolies on their creations.

What Does Patent Protect?

There are various types of patents, including:
Utility Patents: Protect new, useful inventions or processes, such as machines, chemical compositions, or software.
Example: A new smartphone design, a pharmaceutical drug, or an energy-efficient engine.
Design Patents: Protect the ornamental design of a functional item.
Example: The unique shape of a car’s headlights or the appearance of a handbag, provided that said shape offers some sort of advantage over prior headlight shapes.
Plant Patents: Protect new varieties of plants that are asexually reproduced.
Example: A new breed of a drought-resistant plant.

What Cannot Be Patented?

Patents cannot protect:
Abstract ideas or theories.
Laws of nature or natural phenomena.
Inventions already known or obvious.

Duration of Patent Protection

Generally, most forms of Patents are effective for 20 years following registration. Patents require periodic maintenance fees to remain in effect. It is important to note that when obtaining a patent, you must disclose the invention in its entirety and once those 20 years are up, you can no longer exclude others from using it.

4. Trade Secrets

Trade secrets protect confidential business information that gives a company a competitive advantage. Unlike other forms of IP, trade secrets do not require registration but rely on the owner’s efforts to keep the information secret.

What Does Trade Secret Protect?

Trade secrets can include:
Formulas (e.g., the Coca-Cola recipe).
Manufacturing processes (e.g., a proprietary way to make a product).
Customer lists or sales strategies.
Algorithms or software code.

What Cannot Be Protected as a Trade Secret?

Trade secrets cannot protect information that:

• Is publicly known or easily discovered.
• Lacks economic value from being kept secret.
• Is not adequately safeguarded by the owner.

Duration of Trade Secret Protection

Trade secrets can last indefinitely as long as the information remains confidential and provides a competitive edge. However, if the secret is revealed (e.g., through leaks or reverse engineering), protection is lost. This is perhaps the biggest drawback to Trade Secret protection, as you can take every precaution possible but still lose your protection because of someone else’s wrongdoing.
While both patents and trade secrets can protect inventions, innovations, etc, one cannot have both patent protection and trade secret protection for the same thing as one requires public disclosure while the other relies on the lack thereof. As for which you might consider for your own innovation, it truly comes down to a matter of personal preference and the overall circumstances.

With intellectual property often making up a significant portion of a business’s value it is important to know the different types so that you know which you may want to seek out for your own business.