We’ve spent the past several posts exploring different types of intellectual property protection. While many businesses concentrate on protecting inventions, brand names, and customer lists, they sometimes overlook the need to protect their website. Owners often think solely in terms of copyright protection for website content, but other types of protection may also apply. Here’s a quick overview of the different types of IP protection that may be necessary.
PATENTS AND UTILITY MODELS
If your website is an online store with an e-commerce system, or has an internal search engine, it may be protected by a patent or a utility model. A utility model is similar to a patent in that it is an exclusive right granted for an invention which provides exclusive use rights for a limited period of time. The application process is less rigorous for utility models, but the protection period is shorter. Utility model protection is often appropriate for an incremental improvement rather than a wholly new invention.
PATENT OR COPYRIGHT
The software on your website, including the text-based Hypertext Markup Language (HTML) which allows web designers to create font, color, graphic, and hyperlink effects on web pages, may be protected by copyright and/or patents, depending on country in which you are seeking IP protection.
Your website design is most likely protectable by copyright, as is the site’s content, including written text, images, music, and videos.
Any business names, including separately registered assumed business names (DBA), logos, product names, and website names may be protected as trademarks.
Behind the scenes elements in your website, such as source code, algorithms, programs, and database contents, may qualify as trade secrets provided that they have commercial value, are not disclosed to the user, and you take reasonable steps to maintain the confidentiality of such information.
Although commonly associated with literary, dramatic, musical, and artistic compositions, copyrights also apply to business (and personal) website copy, including blogs. There are statutory penalties for unauthorized reproduction (copying without permission or attribution), so even an accidental infringement can result in a lawsuit for penalties and attorney fees. And if an employee sends a copyrighted work to a client or customer, those individuals also could be targeted in a lawsuit by the copyright owner. The National Federation of Independent Businesses published a helpful article on copyright infringement which is summarized below.
Copyrights protect authorship of published and unpublished original works. You cannot copyright facts, ideas or systems, but the way in which they are expressed may be protected. A copyright technically protects a work the moment the work is created and set in a tangible form, but registering the work with the United States Copyright Office gives copyright owners greater protection. A copyrighted work may not be reproduced without permission from the copyright owner.
Always get permission to use copyrighted material
Find out who owns the copyright by searching the records at the United States Copyright Office (or have your IP attorney do so), then send a written request indicating how and why you wish to use the copyrighted material. For materials found online, ask the website owner.
Assume the work is copyrighted
Material may be subject to copyright protection even if you do not see the copyright © symbol.
Assume you’ll get caught
Many businesses pay for services to monitor unauthorized use of their copyrighted material. Don’t cut and paste without permission.
One asset that business owners often overlook (and undervalue) is the company’s intellectual property (IP). The World Intellectual Property Organization defines IP as creations of the mind — inventions, literary and artistic works, symbols, names, images, and designs used in commerce. The law recognizes four categories of intellectual property. We’ll spend some time with each of these in future posts, but here’s a quick overview to get started:
Patents protect inventions such as machines or processes. If properly registered with the US Patent and Trademark Office, patents provide inventors with an exclusive right to manufacture and market their invention. Federal patent protection lasts up to 20 years.
A trademark is a name, phrase, sound, or symbol used in connection with services or products. Think of Nike’s swoop or the phrase “Just do it.” Federal trademark protection lasts for 10 years after registration and can be renewed “in perpetuity.” Trademarks can also be established without formal registration. If a company creates a symbol or name it wishes to use exclusively, it can simply attach the TM symbol to identify and protect the mark under common law; however, it is easier (more cost-effective) to enforce federally protected trademarks in court).
Copyright laws protect written or artistic compositions such as books, poems, songs, or movies. A copyright protects the expression of an idea, but not the idea itself. The owner of a copyrighted work has the right to reproduce, sell, perform, or display the work to the public. An author can have a common law copyright without federal registration, but cannot sue for copyright infringement of an unregistered copyright. A copyright lasts for the life of the author plus another 50 years.
Trade secrets include formulas, patterns, devices, or compilations of data that give a competitive advantage in business. Unlike the first three categories, trade secrets are governed by state law. To protect the secret, a business must prove that it adds value to the company and that appropriate measures have been taken within the company to safeguard the secret.