Intellectual property (IP) predominantly refers to certain intangible assets, such as copyrights, trademarks, trade secrets, and patents protected by state and federal laws. It is essential to consult an attorney on any intellectual property consideration in the early stages of development. Issues often arise concerning original authorship, infringement, protection of the intellectual property generally, and possible misappropriation or disclosure of confidential information.
Intellectual property litigation is complex and requires sophisticated and innovative legal strategies to obtain successful results. When assets vital to a company are at stake, having a skilled attorney who has experience in this practice area is critical and will make the difference. Most of these actions occur in Federal Court and through administrative proceedings orchestrated by the United States Patent and Trademark Office (USPTO).
Determining the Value of Your Copyright, Trademark, or Trade Secret
Whether you have already transformed your idea or work into an asset protectable under federal or state intellectual property laws or you merely intend to, it is equally important to try and determine how to value such an asset. Our business and intellectual property attorneys help clients evaluate and ultimately commercialize their intellectual property. In many instances, we represent clients who come to us with their prototype, idea, or work of authorship and want to figure out the next step. Establishing the type of protection a client may need is only the first step. Next, we need to determine how to commercialize, obtain investors, and market your asset. We consider the danger in protecting your asset in both the long and short term and how best to monetize it, whether that be through the use of trade shows or putting together presentations for the ideal business partner.
A Copyright is published or unpublished original work of authorship that is composed so that it may later be seen, heard, copied, reproduced, communicated, or transmitted. It is important to note that ideas themselves are not copyrightable. However, ideas may be protectable as a Trade Secret through state and federal statutes or in their capacity as a tangible expression. Therefore, it is essential to consult an attorney if you believe you have a copyrightable work of authorship or are simply in the creation and idea process. Even in the early stages, copyright considerations such as original authorship, royalties, licensing, infringement, and protection are all important considerations that could dramatically impact a work of authorship in the future and any derivative works.
Popular examples of copyrighted works may include a fiction novel from the current N.Y. Times Best Seller List, a top-grossing movie in the current USA Box Office, or the song currently number one on the Billboard Top 100. Authors of these copyrighted works, under Title 17, Section 106, are granted specific, exclusive rights for a limited duration (time dependent on authorship and ownership) to their work, including such rights as reproduction, distribution, performances, demonstrations, displays, preparation of derivative works, and transmission.
A Trademark is a logo, design, slogan, phrase, smell, sound, name, word, or a unique mark, or a combination thereof, used to identify the business or individual source of goods or services in a commercial market. If the Trademark identifies the source of a provided service, as opposed to goods, then the Trademark is technically referred to as a Service Mark; however, despite this technical label, Service Marks are still usually referred to simply as Trademarks.
The Trademark must be unique because it is different from other marks in its specific product or service market, thereby allowing consumers to differentiate the Trademark from other Trademarks. Furthermore, the Trademark must be more than a mere description of the good or service provided and cannot be simply a generic term (i.e., Bread, Sock, or Pen). Typically, the less likelihood of confusion a Trademark has with another Trademark, the stronger that Trademark.
A Trade Secret is non-public classified or undisclosed information specifically defined and protected under federal and state law. Trade Secret protection is also one of the very few avenues which allow ideas to be protectable in their capacity as a tangible expression. A famous example of a Trade Secret is the formula for Coca-Cola.
Federal protections and trade secret laws for IP rights are derived from the highest authority. Article I of the United States Constitution vests all legislative powers granted to the United States Congress. As enumerated in Section 8, Clause 8 of Article I, one of these legislative powers gives Congress the sole ability “to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This exclusive “right” grants authors and inventors a property interest (ownership) in an intangible asset that is often, but not always, expressed in a fixed medium for a period determined by the asset’s classification.
Whether you need assistance with a copyright registration or representation against unauthorized copying of your protected work, the Virginia and Washington, D.C., intellectual property attorneys of McClanahan Powers are fully prepared to provide innovative strategies and legal analysis.