Intellectual Property Primer for Maryland Businesses
Intellectual property includes a wide variety of creations that result from intellectual efforts. Intellectual property law governs the ownership rights over literary creations, ideas, business models, designs, industrial processes, and much more.
People tend to view intellectual property law as complicated and confusing. As a result, many Maryland business owners do not invest the time to protect their ownership rights for original works and creations. However, failing to protect ownership rights for intellectual property might result in losing the right to exclusive use of inventions and creations.
A basic understanding of intellectual property rights allows a small business owner or corporation to make informed decisions. The information below in the Intellectual Property Primer for Maryland Businesses created by our Maryland business attorney gives you a synopsis of some of the most important things you need to know about intellectual property rights in Maryland.
Comparing Different Laws and Processes for Protecting Intellectual Property
Even though there are similarities between many of the protections for intellectual property, each area serves a different purpose and covers different types of intellectual property. Let’s discuss the most common protections businesses need to utilize to protect their intellectual property.
When Should Your Business Apply for a Copyright?
Copyrights protect ownership and use of original works of authorship. The works must be in a tangible form of expression. Copyright laws cover published and unpublished works. Examples of original works of authorship include, but are not limited to:
Songs
Artistic works
Literary work
Computer software
Poetry
Musical works
Copyrights do not protect ideas, methods of operation, facts, or systems. Original works of authorship are protected when a person creates the work.
The 1976 Copyright Act gives copyright owners the exclusive right to:
Reproduce the copyrighted material
Create derivative works based on the copyrighted material
Distribute copies of the work to the public by sale or other transfer or by lending, leasing, or renting the material
To perform or display the copyrighted material in the public
You do not have to register the work with the U.S. Copyright Office to receive protection under copyright law. However, registration of a copyright is encouraged. Registering the copyright can make enforcing ownership rights easier in court.
When Do You Need to Trademark Intellectual Property?
Trademarks are symbols, names, words, or devices associated with specific services or goods. The trademark distinguishes a particular service or goods from other similar services or goods. A business may also trademark the business name.
Trademarks protect a company’s brand. They also create an association between the goods or services and the company for consumers. Trademarks help consumers identify authentic goods produced by specific companies.
As with a copyright, as soon as a company uses a mark publicly for business purposes, the mark qualifies for trademark protection. You do not have to register the mark or name to prevent others from infringing on your intellectual property rights.
However, to receive enhanced protection under federal trademark laws, the mark must be affixed to a product sold publicly, be distinctive, and register the mark or name with the United States Patent and Trademark Office (USPTO).
A benefit of registering your mark or name is that parties can search national and international trademark databases to identify trademark ownership. In addition, the registration of a trademark prevents competitors from using similar words, marks, or symbols that could confuse consumers.
Trademark protection is essential to protect a company’s brand and name recognition. Infringement of trademark rights can reduce a company’s competitive advantage, which could result in lower profits.
What Property Do Patents Protect?
Patents protect a wide variety of intellectual property. There are three types of patents available under patent laws:
Design patents protect inventions for new, original, or ornamental design for an article of manufacture
Utility patents protect inventions or discoveries for new and useful machine, process, composition of matter, or article of manufacture or new or useful improvements in these areas
Plant patents are granted for inventions or discoveries of asexually reproduced distinct and new varieties of plants
A patent grants the owner the right to exclude others from using, selling, making, or importing the invention. Infringement is the unauthorized use of patented intellectual property.
What Is a Trade Secret?
Trade secret law protects the processes, products, and methods of business used to give a company a competitive advantage in the market. Almost anything can be considered a trade secret if the information is not common knowledge in a specific trade or field.
Examples of items that might be considered a trade secret include, but are not limited to:
Inventions
Computer program codes
Business models
Ideas
Industrial processes
Formulas
For an item to qualify as a trade secret, the item must contain a recognizable value used by a company to obtain a competitive advantage. Unlike a patent, trademark, or copyright, trade secret laws provide non-exclusion protection of intellectual property.
A company must take reasonable steps to protect trade secrets for the protection to apply. They must maintain the secret and confidential nature of the information to obtain trade secret protection. If third parties have access to the information or the information is used externally, it is more difficult to claim trade secret protections.
Patents and trade secrets can overlap. Business lawyers can help companies determine whether the information or item qualifies for a patent to protect their rights in intellectual property.
The protection for trade secrets in Maryland is found in common law and under the Maryland Uniform Trade Secrets Act. Trade secrets are not registered with a federal agency. Companies can protect trade secrets by utilizing confidentiality agreements and limiting the number of people with access to the intellectual property.
Do I Need to Reapply for Protection of Intellectual Property?
The duration of protection for intellectual property depends on the type of intellectual property being protected.
For example, protections under trademark laws generally have a 20-year period before you are required to renew the protection for another 20 years. Patents are also protected for 20 years from the date the application for a patent was filed with the USPTO.
Copyright protection for works created on or after January 1, 1978, are typically protected for the creator’s lifetime, plus 70 years.
Trade secrets are different. A company can protect a trade secret forever. However, if another person discovers the trade secret without the company's help, the protection could be terminated.
Protecting Intellectual Property on an International Level
Many companies in the United States conduct business around the world. Even if your company is based in Maryland, your website may attract customers and clients from different countries. If so, you should be familiar with international protections for intellectual property.
Countries with free trade agreements with the United States have protections for intellectual property included in the agreements. However, your company may need to file for intellectual property protection in each country to obtain the protection. If the country is a member of the European Union, you only need to file for protection with the EU instead of each member country.
In other countries, you must be the first person to file for intellectual property protection to protect your rights. Many large companies seek protection in countries that are known for counterfeit markets.
A business lawyer can help navigate the requirements for protecting intellectual property on a global scale.
Enforcing Your Intellectual Property Rights
Federal and state laws provide for the enforcement of intellectual property rights. Companies may take several actions to protect their intellectual property rights. Your company's actions depend on the type of infringement and the laws governing intellectual property rights.
Many companies begin by having a lawyer send a cease and desist letter. The letter notifies the party that they are infringing upon your intellectual property rights and to immediately stop all illegal and unauthorized use of the intellectual property. In many cases, a cease and desist letter is sufficient to stop infringement, especially in cases involving accidental use of protected material.
A company may also petition the court for an injunction and file a civil lawsuit seeking relief and damages. The company may also want to file a complaint with the appropriate government agency. The party’s actions may result in criminal action against the party for violating federal intellectual property protection laws.
Failing to enforce your rights regarding intellectual property could result in the loss of those rights. A company needs to take reasonable and sufficient steps to protect and enforce its rights. Unfortunately, the definition of “reasonable and sufficient” may be different depending on the circumstances.
If you believe a company or person is infringing on your intellectual property rights through unfair competition or other wrongful acts, talk with a Maryland business attorney immediately. You may have several options for stopping the use of your intellectual property and recovering compensation for damages.
Schedule a Consultation With Our Maryland Business Attorney
Protection of intellectual property should be a high priority for business owners. The market advantage you receive by protecting intellectual property gives your company the ability to edge out your competition.
Contact our Maryland business attorney to discuss ways you can protect intellectual property in Maryland. We can take the mystery out of the process to help you protect what rightfully belongs to your company.