Protecting Your Intellectual Property: Legal Tips for Entrepreneurs

For business owners and entrepreneurs, intellectual property (IP) including trademarks, copyrights and patents are often one of their most valuable assets. Unfortunately, modern communications technology has made it very easy to steal and disseminate IP, making it extremely important that a business that depends on the strength of that IP knows how to defend it. 

The best means of protecting your intellectual property is by using the legal system to your advantage. The U.S. legal system allows creators to legally register their IP with the government and then take punitive action against anyone who would steal or replicate it as a means of generating revenue. This blog discusses trademarks and patents. Here is how it’s done:

Creating Intellectual Property

Trademarks

What Are Trademarks?

A trademark is a symbol, word, phrase, design, or combination that identifies and distinguishes the source of goods or services. Trademarks are used to protect brand names from copycats and those who seek to damage a brand’s reputation by creating a deliberately inferior product.

Trademarks come in various forms and mediums. They can be registered as a standard character mark for a brand name, a stylized/design mark for a label or logo, or a sound mark for a characteristic sound or jingle.

Steps to Register a Trademark:

Step One: Setting the Groundwork 

You will need to do some work before submitting the application. This includes conducting a comprehensive search to ensure your IP is truly unique and not already in use, identifying the mark format and the goods/services to which the mark will apply, and the basis for filing the mark.

Unless the business is foreign-domiciled, you are not required to hire an attorney for this process. However, the protections guaranteed by the process are only as strong as the trademark filing, so we highly recommend hiring expert legal counsel to help fill out the paperwork and walk you through the process.

Step Two: File the Trademark Application: 

This step involves filling out and submitting your trademark application to the United States Patent and Trademark Office (USPTO). Applications are made through the USPTO website and involve paying a fee for filing.

The application must clearly state the basis and scope of the registered trademark for the filing to be successful and for future enforcement. By working with an attorney, it’s much more likely that the application will be accepted on the first try, which helps you avoid paying additional fees and having to waste time re-applying.

Step Three: Post-Filing

You will need to work with an assigned USPTO examining attorney during the application review process. They will ensure that the application complies with all applicable regulations, and any failure to do so will result in the attorney issuing a letter of correction that the applicant must respond to in a timely manner.

Step Four: Publication and Opposition Period 

Once your application is approved, it will be published in the Official Gazette. During this period, third parties can oppose the registration. If no opposition is filed, your trademark will be registered.

Patents

What Are Patents?

Patents provide exclusive, government-granted rights to inventors or assignees that guarantee exclusive control over their inventions for a period of 20 years. This means that no other person or entity can make, use, or sell that unique object or process without the patent holder’s permission.

Patents can cover a wide range of potential intellectual property and can be classified as three primary categories: utility, design, and plant patents. 

• Utility patents cover processes, machines, articles of manufacture, or a composition of matter.
• Design patents involve new, original, and ornamental designs for an article of manufacture.
• Plant patents include the invention or discovery of a distinct and new variety of plant.

Steps to Obtain a Patent:

Step One: Setting The Groundwork

Similar to creating a trademark, there are a few items of business to take care of before filing your patent. You will need to ensure that the invention is patentable, which includes doing research on what is patentable, whether or not another party has publicly disclosed the invention over the last year, and determining the type of patent that will be needed.

Unlike trademarks, filing patents requires a fair deal of knowledge about patent law and USPTO procedures. Unless you have prior knowledge, hiring a patent attorney is a necessary step in the patent process and will help ensure that things go smoothly.

Step Two: Filing the Application

Patent applications are filed through the USPTO website. There are provisional applications, which provide a quick way for you to establish a U.S. filing date for future use in your non provisional applications, which are used to complete the filing process and are subject to review by a patent examiner

Your application needs to include a comprehensive description of the invention, including claims that define the scope of the invention, drawings, and a written description. This will help ensure a smooth review process with limited corrections.

Step Three: Application Prosecution

The application will be reviewed by various examiners who work in the field that the application applies to and regulators who ensure it is compliant with relevant laws. These examiners may request corrections or provide reasons for denial, which can be answered or appealed in writing.

It’s important to note that if you have chosen to use legal representation, all communications will be made to the representative. Your attorney may address these corrections or denials on their own or involve you in the process.

Step Four: Patent Grant and Maintenance

Once the review process has been completed and meets requirements, the examiners will provide a notice of allowance and fees due. Once the fees are paid, the patent is officially granted for a specific number of years.

Maintenance fees are necessary for a set number of years after the patent is granted. You will need to pay maintenance fees in order for the patent protections to be maintained for the full grant period.

Enforcing Intellectual Property Rights

Monitoring and Policing IP Use

Once your IP has been registered, you will need to spend some resources on monitoring for unauthorized use. Since there is simply too much information available to do so on our own, some dedicated resources are available to assist in this process.

This includes trademark watch services, which monitor potential infringements and unauthorized use of trademarks. These services alert you to similar marks being registered or used in commerce.

It also pays to keep an eye on new patent filings and publications to identify potential infringements. Patent monitoring services can help track competitors’ activities and help you identify potential copycats and infringements.

Cease and Desist Letters

When you detect unauthorized use of your IP, document the infringement with evidence such as screenshots, photographs, or samples. Work with an attorney to draft a cease and desist letter that clearly outlines your rights, the nature of the infringement, and the actions required to resolve the issue. The letter should demand that the infringing party stop using your IP and may include a deadline for compliance.

Litigation and Legal Actions

If the infringing party does not comply with the cease and desist letter, it is time to consult with an IP attorney about the potential for filing suit. The attorney will help evaluate your case’s strength, the potential litigation outcomes, and assist you with the necessary next steps.

The lawsuit will be initiated by filing a complaint in the appropriate court. The complaint should detail the infringement and the relief you seek, such as damages or injunctive relief. The other party may request negotiations to answer the complaint, or they will fail to answer the complaint.

This will begin the litigation process, which may last some time, depending on the infringement details. Litigation will involve discovery, depositions, and court hearings and will depend on the strength of your legal representation to end in your favor.

Alternative Dispute Resolution

Mediation and arbitration, which use a neutral third party to adjudicate the complaint, are alternatives to litigation that may be more cost-effective while maintaining your property rights.  In mediation, a neutral third party facilitates negotiations between the parties to reach a settlement. Arbitration involves a neutral arbitrator who hears both sides and renders a binding decision.

Customs and Border Protection

Protecting Against Counterfeits:

Register your trademarks and copyrights with U.S. Customs and Border Protection (CBP), which enables customs officials to identify and seize counterfeit goods at the border. Collaborating with enforcement agencies helps you to take action against counterfeiters and protect your IP from illegal imports.

Protecting your intellectual property is essential for maintaining your competitive edge and ensuring the success of your business. By taking proactive steps to create and enforce IP rights, entrepreneurs can safeguard their innovations, brands, and creative works. Legal representation from experienced IP attorneys, such as those at “sdlawfirm.net,” can provide invaluable assistance throughout the process, helping you navigate the complexities of IP law and defend your rights effectively.

Next Steps

Safeguarding your IP is more important and difficult than ever before. Success is determined by the strength of your initial filing and the resources available to enforce your intellectual property rights. 

You need a team of legal experts like Villasenor Law Offices to ensure your IP filing is airtight and create the groundwork for future enforcement. Call today!

Disclaimer: The content of this website or any blog is for information or educational purposes only. Nothing on this website or blog should be considered legal advice for any individual case or matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship.