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Although your intellectual property is considered copyrighted from the moment of creation, the best way to protect it is to register your copyright, patent or trademark.. — Getty Images/Tamarabegucheva

Intellectual property (IP) is critical for innovation in the business world. In light of the recently-passed CASE Act, many businesses are thinking about their IP and how to protect it under current copyright law. Here's what you need to know about protecting your IP, including what to do in the case of IP infringement.

What is intellectual property?

IP refers to any creation of the mind or intellect that is used in commerce. This includes inventions, literary or artistic works, names and any visual elements such as images.

Patent, copyright and trademark law also fall under the umbrella of IP, as they protect the use and control of these intangible assets.

Protecting your IP: How to secure your legal rights

IP protection typically falls under three major categories: copyright, patent and trademark. Here’s how you can secure each set of legal rights for your IP.

Copyright

Copyright gives businesses the right to keep others from directly copying their work. It protects the specific expression of an idea, though it does not protect against a competitor independently developing a similar concept or series of processes. Although businesses are not required to register their published or unpublished copyright, it is strongly advised in order to better protect their IP.

If you wish to register your copyright, you will need to complete the application form for the United States Copyright Office. A standard online application costs $55, and claims are typically processed within four months. For works created and registered after January 1, 1978, IP is protected for the life of the author plus an additional 70 years. The author typically refers to the creator, though it may also refer to the employer in an employer-employee agreement.

Patent

Patent protection gives businesses the right to prevent others from making, selling or using their IP. Patent law can protect new processes or algorithms, inventions, materials or any combinations thereof. If your product is patentable, you will need to register it with the United States Patent and Trademark Office within a year of its public release. Application fees range from $300 to $660, and several discounts exist for nonprofits and small businesses.

Business owners will typically apply for one of two types of patents: a utility patent or a design patent. A utility patent protects the technology behind a product, while a design patent protects the visual assets of a product.

Once the patent is approved, protection lasts for 20 years from the date of filing. The creator of the product owns the patent by default, though ownership can later be assigned to a company or other corporate entity.

Trademark

A trademark refers to any names, words or visuals that identify your product or brand. Under U.S. law, the first party to use a trademark commercially owns the rights to use. While trademark registration is not required, obtaining this protection can ensure your business has exclusive rights to this IP. To register your trademark, you will need to complete your application through TEAS. Denote the class(es) that you wish your trademark registration to cover; a standard form costs $275 per class.

In the United States, the person or entity who owns the IP rights is responsible for enforcing them.

What to do if someone infringes on your IP

Under the CASE Act, you may be eligible to take any cases of infringement to the newly formed copyright "small claims court" by filing with the Copyright Claims Board (CCB) in the U.S. Copyright Office. The CCB rules on copyright infringement claims totaling $30,000 or less. Taking a claim to the CCB can reduce the time and costs associated with pursuing a case in federal courts.

In the United States, the person or entity who owns IP rights is responsible for enforcing them. This means they can also report the theft online through the National Intellectual Property Rights Coordination Center.

If you suspect IP infringement, here are some steps to take to build your case:

  • Identify any parties who have had access to your IP and when they had access, as well as anyone who could benefit from the use of your IP.
  • Collect evidence of suspected infringement, including screenshots, samples and web addresses.
  • Calculate how much this infringement has cost you.
  • Determine whether the party or parties are protected under fair use. Scenarios such as teaching, research and criticism or commentary, as well as circumstances in which only a small portion of the work was used, may qualify under fair use.

In the event of IP infringement, it is strongly recommended to obtain legal representation. An attorney can help with not only filing the initial IP protections, but taking any cases of infringement to the CCB. Having the proper legal support can ensure your case has a conclusive outcome, while also helping you to protect your IP in the future.

CO— aims to bring you inspiration from leading respected experts. However, before making any business decision, you should consult a professional who can advise you based on your individual situation.

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Published February 01, 2021