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Register, Protect and Defend

How to stake and protect your claim when it comes to intellectual property.

Paul Allen's recent patent infringement suit against Facebook, Google and other tech giants has fueled discussions from boardrooms to coffee shops. What needs to be protected, how can you put protections in place, and how do you defend intellectual property once registrations, patents, trademarks and copyrights are filed? Here's a primer on what every business owner should know.

Registering a Business Name
Depending on whether a business goes by the legal name of its owner (John Smith Plumbing) or an assumed name (A-Team Plumbing), and depending on its location and business structure (sole proprietorship, partnership, LLC, or corporation), the path into local and state government databases of registered business names varies. The Business.gov website provides forms and instructions for this necessary step toward protecting your business name.

Registering with the U.S. Patent and Trademark Office (USPTO)
Just because you're safe to use a name, idea or process doesn't mean others can't use it, too. Most intellectual property rights are limited to the territory in which they're registered. To protect rights across broad market areas, register with the USPTO in one of three categories:

Trademarks protect words, names, symbols, sounds or colors that distinguish the goods and services of a business. Start by searching the USPTO database to determine that the mark you want appears to be available. If so, hire an attorney who specializes in trademarks to conduct a more extensive search before proceeding to claim the trademark in one of two ways:

  1. Officially register the mark following the USPTO instructions. The process usually requires the expertise of an intellectual property lawyer but, once registered, the trademark (indicated by the symbol ®) provides government protection from liability or infringement issues and is renewable so long as it's used in commerce.
     
  2. Establish common-law trademark rights by using the mark, accompanied by a "TM" in superscript ("SM" for service marks), consistently and continuously in business dealings. Be aware that common-law trademarks are limited to geographic areas in which the marks have been used and, if challenged, lack the protection of registered trademarks.


Patents are property rights granted for finite periods to inventors "to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States." The USPTO site links to applications, instructions and registered patent attorneys.

Copyrights give producers of writings, music and works of art exclusive rights to control reproduction of their work. Copyrights take effect once the work is produced in tangible form. To strengthen protection, include a line on the work that states, "Copyright," or "ã," followed by the date of first publication, and the name of the copyright holder. For further protection, file a copyright registration through the U.S. Copyright Office.

In addition, the World Intellectual Property Organization provides information on obtaining international protection.

Defending Registered Rights
Establishing rights is the first -- but certainly not the last -- step in protecting intellectual property. Even after registrations are in place, responsibility falls to property owners to:

  1. Protect registrations by carefully following government and legal instructions.
    Misuse jeopardizes registrations and, as a result, exclusive rights. As a famous example, Otis Elevator Company, owner of the Escalator trademark, allowed the word to be misused as a noun, rather than as an adjective followed by a generic descriptor -- e.g., Escalator brand moving stairs. As a result, in 1950, courts deemed that "escalator" had become "genericized" and therefore part of the public domain, and trademark protection was revoked.
     
  2. Move quickly against intellectual property violations. Waiting can erode rights.
    Though the Paul Allen patent infringement suit is far from decided, The Wall Street Journal includes this quote from University of Missouri law professor Dennis Crouch: "If the patent holder just sat on their rights for a long time … the patent might become unenforceable."


Register It, Use It and Defend It -- In That Order
To protect intellectual property, first work with attorneys and government offices to establish your legal claim. Then use your property -- correctly and to the letter of the law. And, finally, should your rights be infringed upon, move quickly and decisively to keep your property proprietary, out of general use, and of high value to your business.

Barbara Findlay Schenck is a small-business strategist, the author of Small Business Marketing for Dummies and the co-author of Branding for Dummies, Selling Your Business for Dummies and Business Plans Kit for Dummies.

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