Patents, Trademarks, & Copyrights: What small business owners should know about intellectual property

As a small business owner, it's important to consider how you can protect your work. You may wonder what steps you need to take to make sure others don't claim your products or services as their own; if you need to get a patent, trademark, or copyright; how you register for these protections; and more.

As a resource for small businesses, we're here to help. The information provided below will help clarify how you can protect your business' content, products, and other intellectual property.

What's a patent?

Patents help protect inventors by preventing others from making, using, or selling their invention throughout the United States or importing it into the United States. There are three different types of patent applications: utility patents, design patents, and plant patents. We expand on utility and design patents below as these are most common and useful for business owners.

Note: To enforce protection abroad, you would need an international patent through the World Intellectual Property Organization (WIPO)'s Patent Cooperation Treaty.

A utility patent is useful if you invent or discover a new and helpful process, machine, article of manufacture, or composition of matter (such as a chemical). This type of patent protects the structure, composition, or function of an invention (i.e. how it's used), and generally lasts 20 years from the earliest filing date.

The design of your invention can change and still be protected by the patent if the specific function is still present. Congress ultimately decides what kinds of inventions are protected by utility patents.

A design patent can be obtained if an inventor creates a new, original, and ornamental design of something. In essence, this patent protects the appearance of the tangible thing. For example, the shape of a bottle or the design of a hat can be protected by a design patent. They're typically easier to obtain than utility patents and are generally granted within 12 months of filing an application.

However, design patents are usually considered a weak form of protection because they only protect the way something looks. Any change in appearance can make it impossible to use a design patent to stop a copy or knock-off.

Qualifying for a patent

There is no specific deadline for filing a patent application, but the earlier, the better. Before getting started on the application, check that your invention falls within the definitions and requirements of a patent application.

You should also do ample research to make sure there are no other patents previously filed – this can be done in the Public Search Facility of the United States Patent and Trademark Office (USPTO) and in libraries located throughout the U.S. that have been designated as Patent and Trademark Resource Centers (PTRCs).

How to register a patent

In order to get a patent, the inventor must complete and pay for an application with the USPTO. While patent applications are accessible to everyone, it's a good idea to seek advice from an attorney when applying. Patents can be extremely complex and you may find yourself spending lots of time and money during the registration process.

Expert tips:

1. Patents are only issued to individuals, they are not issued in the name of a group or a company.
2. Applications are subject to a basic fee, additional fees (such as a search fee, examination fee, and issue fee), and even maintenance fees (utility patents only). Most fees are subject to change in October of each year. You may be able to significantly reduce your fees by claiming small entity status.

When applying for your patent with the USPTO, you have options. You can either file a regular patent application (RPA) or a provisional patent application (PPA). In either case, you'll be required to thoroughly disclose the nature of your invention and submit drawings or renderings.

Keep in mind that a PPA is not an actual application for the patent itself. It only allows you to claim "patent pending" status for the invention and is a small fraction of the work and cost that goes into a regular patent application – but you must file an RPA within a year (if you don't, you can't claim the PPA filing date).

Inventors often choose this option to gain quick credibility and attract potential investors. All it requires is a fee, a detailed description of the invention, and an informal drawing.

Protecting your patent

It's your responsibility to monitor for patent infringement – the USPTO doesn't monitor or enforce patents after they're issued.

If your patent is infringed, you may sue the infringer. You can ask the court for an injunction to prevent the continuation of the infringement and/or an award of damages.

What's a trademark?

A trademark can be a word, phrase, symbol, or design that identifies the source of where goods come from. Trademarks can also help distinguish brands from competitors. You may want to trademark your business' name, tagline, logo, or packaging you use for your products to prevent other businesses from using your marks or making marks confusingly similar to yours.

The McDonald's golden arches are a classic example of a symbol trademark. When you see the golden arches, you know that image is representing a McDonald's restaurant and not another fast food chain. Another example is the phrase "Just Do It." The general public will recognize and associate those three words with the Nike brand.

Note: A trademark that is registered with USPTO will not protect your trademark outside of the United States. In order to gain trademark protection overseas, you will need to register with the other countries you plan to do business in.

Should you register for a trademark?

It's not required to register your mark to establish your claim over it. You can get a basic form of trademark protection in your local community just by using your trademark in your everyday business. Including "TM" will let others know of your ownership.

To get a trademark with a nationwide protection and the right to enforce your trademark rights, you'll need to register your marks with USPTO. Once you're registered and it becomes official in their database, then you can use the "®" registered mark.

How to register a trademark

There is no specific deadline for registering a trademark, but when it comes to protecting your brand and business, the sooner you apply, the better. To get started, you'll need to file a USPTO application.

It's a good idea to consult a trademark attorney if you have questions regarding the application process – the application will call for you to label your goods or services within a specific "class" and you will not be able to make changes to this classification later on. There are more than 40 different classes of goods and services (many of which tend to overlap) and your registered trademark will only be valid for the specific class(es) you choose.

Expert tips:

1. If your business is already up and running, you can still do a trademark search and apply for registration.
2. You can register a trademark in all 50 states. This means other businesses and entrepreneurs around the country can see your registered trademark symbol.

Protecting your trademark

The USPTO registers trademarks but does not monitor or enforce them – that responsibility falls on you. It's also possible to lose your trademark if you don't enforce or maintain it properly.

To adequately enforce your trademark remember to:

1. Use a monitoring program to keep track of trademark filings and file objections if any infringe on your own trademarks.
2. Take action if you believe another business is infringing. Reach out to an attorney for advice on sending a cease and desist letter or other possible injunctions you can enforce.
3. Be sure to file maintenance documents before their deadlines. The USPTO requires maintenance documents every few years. If you miss deadlines, your mark can labeled as abandoned. This will allow others to potentially have the rights to your trademark.

What's a copyright?

Copyright protects original published or unpublished work. The protection of a copyright is granted by the government and can include literary, dramatic, artistic, and musical works (such as poetry, books, articles, movies, songs, sketches, digital software and architecture). It doesn't protect facts, ideas, or methods of operation but it may be able to protect the way these things are expressed.

The duration of copyright protection depends on many factors. For works created by an individual, protection lasts for the life of the creator, plus an additional 70 years. For works created anonymously, pseudonymously, and for hire, protection lasts 95 years starting from the date of publication or 120 years from the date of creation, whichever is shorter.

Do you need a copyright?

You don't have to register a copyright because it automatically applies the moment your work is created. As long as your work is protectable under copyright, it's protected from the moment it's created in a tangible form.

While it isn't required, there are benefits to registering your work. If you ever wish to pursue a case involving copyright infringement, it will need to be registered. It also establishes a public record of your creation and you then hold a certification of registration.

How to register a copyright

As mentioned above, copyright protection does not require an author to submit an application before there's protection. If you do choose to register, though, you can register online or by paper through the U.S. Copyright Office. You will need to complete an application, pay a fee, and deposit a copy of the work with the Copyright Office.

You don't need an attorney to register a copyright for your small business but working with an attorney can help ensure you do it right the first time, saving you time and money.

Using copyrighted works

As a small business owner, it's important to observe the copyrights of others. It's against the law to use creative works that belong to another person without their permission. Look for a copyright notice if you're unsure.

A notice will include information such as the name of the copyright owner and date it was issued. If there's no notice, the owner can be found by doing a copyright search. Information regarding copyright registration, ownership, transfer, and searches is available on the U.S. Copyright Office website.

Expert tip: Avoid using copyrighted images on your website and in your marketing. If you use copyrighted images and the creator didn't give you permission, you could be sued for copyright infringement and ultimately owe thousands of dollars in damages.

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No matter how you decide to protect your small business, seeking the right form of protection is a big part of upholding your brand. To learn more about how to protect your business, check out the USPTO website and/or meet with an intellectual property attorney. Both can help answer your questions, figure out what type of intellectual property you need to protect, and assist you in the registration process.