Many businesses don't realize that they own very valuable intellectual property (IP). And when most people hear the term "IP," they tend to think only about patents.
While patents are important, they're not the only form of IP that is important for a business. Let's look at some common IPs that every business should consider important.
The branding of your product or service is very important. At the heart of the brand is the trademark or service mark that a business uses. While trademarks are used for products and service marks are used for services, they're both often referred to as trademarks.
A trademark is the source identifier of a product or service, and it should be used as an adjective associated with a generic term (a noun). Kodak® Film and ToysRUs® are great examples of trademarks that are registered with the United States Patent and Trademark Office.
On the flip side, the term New York Yankees™ is not a registered trademark. It uses the common law designation TM, which indicates that the New York Yankees™ Baseball Club is using the term as an unregistered trademark. But registered or not, the term has to be used as an adjective to modify a noun – film, baseball club or stores.
Obtaining registration of a trademark requires interstate use in commerce. If you want to use your trademark only inside California, it will be registered for intrastate use only. If you want to use it outside of California as well, you'll need to register for interstate use.
Registration can make it easy to enforce your trademark and to obtain an injunction to cease someone from using your trademark. This is typically why companies register their trademarks.
Slogans are also provided protection. For a slogan to qualify as a registered trademark, it has to be used as a source identifier and developed with what the law calls, "secondary meaning." This means people hear or see the slogan, they'll associate it with a particular source.
Good examples of this are Nike's "Just Do It" and KFC's "Finger Licking Good."
Slogans that don't meet this source identifier requirement for Federal Registration may still be protectable under common law. Carvel's "America’s Freshest Ice Cream™" falls into this category.
Note: Slogans are not generally registered as copyrights because they are often short phrases, so they don't pass the originality test. It may be possible to protect it via copyright if it is not intended to be used as a source identifier or trademark.
Other Types of IP
There are several other types of IP that businesses should consider, including:
- Confidential Information
- Employee Lists
- Customer Lists
- Regulatory Approval
- Know How
- Show How
"And the list doesn't stop there. But for now, it's a good idea to make sure your trademarks, service marks and slogans are protected. A good IP lawyer can help you ensure you're getting the right protection for your business."