How Your Competitors Might Copy You? Intellectual Property Law

Does your business benefit from your creative, thoughtful, or intelligent approach? Do you ever consider how your competitors might copy you? Have you ever wondered how you might protect yourself? Have you taken any action?

Intellectual property law can help. Yet, even most business lawyers do not know that much about it. Intellectual property includes patents, trademarks, and copyrights. Here are the top three misconceptions about intellectual property. These examples show that creating patents, trademarks, or copyrights before they are needed can be the difference between inexpensive, successful enforcement and a costly, drawn-out defense of your intellectual property.

Perhaps you have heard that copyrights occur automatically. This is true: as soon as you record (type, write, photograph, etc) your work in a fixed form, you have a legal copyright. Yet, perhaps you do not know that the automatic copyright is likely insufficient to cost-effectively defend or enforce the copyright. Automatic copyrights do not allow for statutory damages. Automatic copyrights do not allow for recovery of attorney fees. Also, Automatic copyrights must be proven in court by showing sufficient evidence of creation.

By comparison, registered copyrights provide for a prima facie (no additional evidence) assumption of copyright because you already provided this to the US Copyright Office. Also, registered copyrights provide statutory damages and recovery of attorney fees. Yet, you can only have these benefits if you register a copyright at the US Copyright Office before someone copies your work.

Similarly, a registered trademark can be used in a UDRP proceeding (Uniform Dispute Resolution Process). The UDRP process allows you to obtain control of a domain name that is confusingly similar to your registered trademark. Recently, I had a client lose control of a domain name due to the negligence of a hired web developer. The UDRP procedure allows recovery of the domain name without resorting to litigation, which can cost ten times as much as the UDRP process. Also, the UDRP procedure is helpful if you have to deal with cybersquatters or typo-squatters, who may not exist (legally or otherwise) in the United States. Yet, the UDRP is not available if you do not *register a trademark”.

Lastly, if you have a new product, new concept, or an innovative approach to an existing product or service, you might be eligible for patent protection. However, failure to file your patent prior to a public disclosure might prevent you from asserting your patent rights outside the United States, even though there is a 1 year grace period in the US. Patents protect how something is new, and it prevents competitors from doing what you have claimed is new, even if they invent it (after you) without referring to your work.

You can learn more about intellectual property by visiting the website of Andrew Lahser, Patent Attorney. He offers articles about patents, trademarks, and copyright from the unique point of view of a small business. You can ask your own patent or trademark question online, and he will publish the answer on his blog.