• Carolyn Jahnke

Trademarks and Copyrights and Trade Secrets, Oh My!

Do you know what makes your organization different or better than your competitors? Often that difference is your "secret sauce", or competitive advantage. Legally, this is often known as your intellectual property (IP). Defining your IP as an asset allows you to implement similar protective rights that apply to real property (i.e., it is illegal for someone to steal your computer). Making sure you appropriately obtain or effectively use those protective rights is critical as it prevents potential competitors from copying your IP, which is a serious concern in our ever-increasing move to online commerce. You can monetize your IP in a couple of ways. First, by using it internally to provide your goods and services to customers, or second, by sharing it externally through licensing. But before you can monetize your IP, you need to understand what the different protections mechanisms available to you are and then appropriately implement them. Here are five types of IP protections:

  • Copyrights. A copyright gives the creator of original work exclusive rights (such as the right to use, display, copy, distribute, modify, sub-license, etc.) to it, usually for a period of time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works". Copyright does not cover ideas and information themselves, only the form or way they are expressed. You do not need to register a work in order to have copyright, but you must register the copyright if you want to sue another party for infringement. If you don't want to register for a copyright, you can discourage inappropriate use of your IP by placing copyright notices on things you create like your website, advertisements, materials, documents, presentations, etc. Copyright notices inform your customers, potential customers and employees what they can and can't do with something you created.

  • Patents. A patent grants an inventor the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention. To receive a patent, an inventor needs to file a claim that meets the minimum requirements of patentability, which typically include novelty (originality) and non-obviousness.

  • Trade Dress. Trade dress is the visual appearance, characteristics, and overall 'look and 'feel of a product or its container, packaging, or design, that uniquely signifies the source of the product to consumers. A trade dress application must include designs and drawings, the associated services or goods, and a description. A product qualifies for this registration based on the distinctiveness and functionality of its trade dress.

  • Trade Secrets. A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably known and gives a company an economic advantage over competitors. By designating and handling something as trade secret a company gains protection as long as the information remains confidential and functions as a trade secret.

  • Trademarks. A trademark is a word, name, logo, symbol, device or combination, used to identify the source of goods or services to prospective purchasers. Filing a for a trademark provides notice to the public of your company's claim of ownership of the mark, gives you legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods/services listed in your registration.


Have you identified your IP and taken steps to appropriately protect them?


Failing to take steps to protect your "secret sauce" opens the door to competitors, employees and/or customers taking what you have worked hard to create and making it their own either intentionally or unintentionally. Working with a business lawyer who understands your business goals and intellectual property will help you identify what steps you need to take to protect and grow your business value in line with your goals and your budget.



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