Register the Appropriate IP Protection
The strongest protection comes from registering your work. By doing so, you put your claim into the public view, discouraging many (but not all) people from using your work without permission.
- Trademark registration gives you the right to use the R symbol, giving legitimacy to your claim. A symbol on your unregistered trademark does notify the public of your claim, but has no real legal backing.
- A patent or provisional patent application gives you the right to use the patent pending designation. This can discourage many people from developing a product they won't be able to use for long.
- Registering your copyright preserves your right to sue infringers and, if your suit is successful, collect damages and attorney's fees.
You do need to make sure you maintain your protection, too. Choose a strong trademark and document your first use to make it easier to defend in court if necessary. Renew your trademark on time, use it continuously and file the paperwork documenting use.
If you start marketing or otherwise disclose your invention to the public before filing for patent protection, remember that you must file your patent application within one year of disclosure and be the first to file, or you lose the right to protection. Consider starting with a Provisional Patent Application to preserve your rights.
Pursue Foreign Registration
If you plan to market your invention in other countries, you'll want to investigate registering your IP in those countries. The United States has several treaties and conventions making it easier for U.S. citizens to register patents and trademarks in multiple countries with one application. You will still need to follow each country's laws. For example:
- Many countries require that you file for patent protection within one year of disclosing your invention.
- Some countries require that you file for patent protection before making your new product public.
- Some countries require that you include more than a or R symbol with your trademark.
Many foreign countries also have agreements with the United States to recognize your copyright registration. If the country you're interested in does not, see what it requires for you to register.
Keep it a Secret
Some intellectual property is best protected by keeping quiet about it. If your work is not patentable, or you prefer to protect it using the trade secrets law, limit the number of people you tell about it. When possible, have potential partners or investors sign Non-Disclosure Agreements. Make sure you make clear exactly what is confidential and how long it must be kept secret.
Even after filing a patent application, you might want to limit additional disclosure, depending on the situation, since protection technically only starts when the USPTO grants your patent.
Monitor Your Marketplace
Laws and registrations offer you legal remedies after your work has been used improperly, but they don't actually prevent your work from being stolen in the first place. Some people may not be aware of the law. Others don't care. And sometimes even a thorough patent or trademark search misses something.
Therefore, it's your job to keep an eye on your industry:
- Pay attention to new products and companies, and note the images and words in their marks.
- Set up Internet search alerts, such as Google alerts, to receive emails when words or phrases similar to your work are mentioned online.
- If your trademark is particularly valuable, consider using a trademark search firm to police your mark. A company like Thomson CompuMark will search domestic and international trademark and domain registrations.
- Be careful about trademark dilution. If you allow your mark to become a common term rather than a brand, you risk losing your right to it. For example, "zipper" was once trademarked, but became a product category rather than a brand.
- Investigate products that appear similar to yours and their patent filings to determine if they infringe your patent.
Defend Your Rights if Infringed
If you do find instances of infringement, take action. Depending on the situation, you have several options, including:
- Send a Cease and Desist Letter telling the infringer to stop using your work. You can send it yourself, but for the most impact, have your lawyer send it.
- Send a Digital Millennium Copyright Act (DMCA) takedown notice for copyright infringement on the Internet.
- Request a court injunction to stop a patent infringer from continuing to make or sell the product.
- File a lawsuit. Depending on your situation, you many have to decide if you have a strong enough case to make this option worth the cost and effort.
An experienced IP attorney can help you evaluate which protections are right for you as well as help you defend your rights.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.
