Intellectual Property Law: Everything You Need to Know
Intellectual property law (IP) protects the rights of any person or business who creates artistic work. 8 min read
2. Types of Intellectual Property Law
3. Protecting Against Infringement
4. International Protection of Intellectual Property Law
5. What Do Intellectual Property Lawyers Do?
6. Frequently Asked Questions
What Is Intellectual Property Law?
Intellectual property law (IP) protects the rights of any person or business who creates artistic work. Artistic work can include music, literature, plays, discoveries, inventions, words, phrases, symbols, and designs. Intellectual property law aims to encourage new technologies, artistic expression, and inventions that all promote economic growth.
Types of Intellectual Property Law
Just like the legal system protects people's physical property rights, it aims to protect people's mental labor, which we call intellectual property. There are several different types of intellectual property.
Copyrights protect any type of expressive art, such as writings, music, motion pictures, architecture, and other original intellectual and artistic expressions. A copyright gives the owner exclusive rights to reproduce their own work, publicly display it, perform it, and create derivatives of that work.
Theories or ideas are not protected unless they are captured in a fixed medium. The act of creation produces a copyright. This means that even unpublished works are protected by copyright laws. The use of a copyright symbol and the date is common, but it is not required to show that you own the copyright.
Owners of copyrights are also given economic rights to financially benefit from the creation of their work. The law prohibits other people from these economic gains unless they have been given permission from the copyright owner. There are a few exceptions to copyright exclusivity in cases of "fair use" such as for a book review.
Current law protects works whether or not a copyright notice is attached or if it has been registered. The federal agency charged with enforcing this act is the Copyright Office of the Library of Congress.
Most copyrights are valid for the creator's lifetime, plus 70 years.
Patents protect the owner's invention from being made, sold, or used by anyone else for a certain amount of time. Patents give inventors the right to sell their product or to make a profit from it by transferring that right to another person or business.
Depending on the type of patent that you apply for, your rights are valid for up to 20 years. Be aware that patent protection will be denied if your invention is deemed to be to be obvious in design, not useful, or morally offensive.
There are three different types of patents that you can get in the U.S.
- Utility Patents: Utility patents protect inventions that have a specific function. This covers things like chemicals, machines, and technology.
- Design Patents: These types of patents protect the way an object or product appears once it has been made, literally its design. These types of patents include industrial designs.
- Plant Patents: Plant patents protect plant types that are asexually reproduced. This includes hybrids.
Inventors do not automatically get a patent once they invent something new. They must apply for and receive approval on their patent to be protected under intellectual property law.
If you have never applied for a patent before, it is recommended that you hire a patent attorney to assist you through the complex and time-consuming process of applying for one.
Trademarks help to protect the names, marks, and slogans of products and companies. Trademarks make it easy for customers to distinguish competitors from one another, help to avoid any confusion, and deter misleading advertising. Trademarks are automatically assumed. As soon as a business starts using a mark or brand name, you can follow up that symbol with TM without having to file it with the government.
Unlike copyrighted works, trademarks receive different degrees of protection depending on consumer awareness of the trademark, the type of service and product it identifies, and the geographic area where the trademark is used.
Rights can potentially last forever and while not required, trademark owners can register their marks for additional protection.
Geographical indications are signs or images used on products that come from a specific geographic location. Often, people do this when that location has certain qualities, a reputation, or characteristics that make that place of origin special.
It is important to note that copyrights, patents, and trademarks, are the basis on which intellectual property is protected by law; therefore, it is very important that a certain degree of skill is used when drafting the documents required to obtain these protections. If you do not have this degree of skill, you should hire an intellectual property lawyer who has specific experience in your field or industry.
Right of Publicity
The image and name of a person are protected by different state laws known as the right of publicity. These laws protect people against the unauthorized use of their name or image for commercial purposes. For example, a company cannot use a picture of you on a box of cereal unless you give them permission or are compensated for the use of it. The extent of your protection varies from state to state.
Trade secret laws can be found at both the state and federal levels. They protect sensitive business information like a marketing plan for the introduction of a new software or a secret recipe for a brand of soda. The extent of trade secret protection depends on whether or not the information gives your business an advantage over your competitors. It must also be a secret among most of your staff and not be known by any of your competitors.
Right of Privacy
Although not technically part of intellectual property law, state privacy laws are there to protect the rights of all people to be left alone. Invasion of privacy happens when a person publishes or exploits someone else's private information on a public forum. Invasion of privacy laws protect people from intruding on, exposing private information about, or falsely portraying another person.
Protecting Against Infringement
Intellectual property law infringement is when someone uses a person or company's intellectual property without authorization.
Article I, Section 8 of the United States Constitution grants Congress express authority to give authors and inventors exclusive rights to all of their creations. Section 8 also gives Congress the power to provide further support both interstate and in foreign commerce. Congress's power to regulate trademarks is grounded in the Commerce Clause of the Constitution.
Intellectual property laws passed by Congress are overseen by two government agencies: the U.S. Patent and Trademark Office and the U.S. Copyright Office. The U.S. Patent and Trademark Office is responsible for issuing and monitoring all federally registered patents and trademarks. Copyrights must be registered with the U.S. Copyright Office to be enforceable at the federal level.
To protect yourself against infringement, you should take all of the steps you can to let the world know that your rights exist. By making your rights public, you deter people who might accidentally infringe on your rights, and you put yourself in a better position to prosecute an infringement in court if necessary.
How to Give Notice of Your Intellectual Property Rights
Inventors can give notice of their rights in the following ways:
- They can mark their product with the patent number that is assigned to them by the Patent and Trademark Office.
- If they have not received their patent yet they can use the label "patent pending" to discourage people from copying the design before they receive the actual patent.
- Notice of trademarks and copyrights can be shown by placing the appropriate symbol such as ™ or © on the products or materials.
If infringement does happen, you can enforce your intellectual property rights in federal court. Before filing a lawsuit, you should consult with an intellectual property law attorney and carefully consider whether litigation is your best option. Infringement cases are expensive, and there is a risk that your intellectual property rights, once held up to the scrutiny of a judge, will be shown to be invalid or less extensive than you may have thought.
If you do decide to go to court over an intellectual property infringement and your suit is successful, there are a number of remedies available to you.
- The court can order an injunction. This means that the person infringing on your IP must stop what they are doing.
- You may be able to receive monetary damages if you can prove that you have lost business because of their actions.
- Once your rights are established in court, you may be able to agree to a license agreement with your IP. This means the infringing party can continue to use your IP and you will receive a payment from them in return.
International Protection of Intellectual Property Law
Intellectual property protection at an international level became an important issue during trade and tariff negotiations in the 19th century. One of the first international treaties relating to intellectual property was the International Convention for the Protection of Industrial Property, also known as the Paris Convention. The treaty, written in 1883, provided protection for patents, industrial models and designs, trademarks, and trade names. The treaty has been signed by over 100 countries and has been modified several times over the years to keep up with changing intellectual property law.
- The Right of National Treatment: This area of the treaty ensures that those seeking a patent or trademark in a foreign country will not be discriminated against just because they are from a different country. They will receive the same rights as a citizen of that country.
- The Right of Priority: This provision in the treaty gives an inventor one year from the date of filing a patent application in his or her own country (six months for a trademark or design application) to file an application in a foreign country. The legal, effective date of application in the foreign country then becomes the effective filing date in the inventor's home country so long as the application is made within the protection period. If the invention becomes public before the inventor can file the home country application, the inventor loses the right of priority in a foreign country.
While these rules are in place, enforcement and protection of IP at an international level is still extremely complex. Laws vary greatly from country to country, and the political climate within each country, which changes frequently, influences the extent of protection available.
Many U.S. and international IP laws changed significantly after the General Agreement on Tariffs and Trade (GATT) was passed in 1994. The countries that signed the GATT committed themselves to a higher degree of intellectual property protection. With guidance from the World Trade Organization (WTO), member nations were required to adopt specific provisions in order to enforce the rights and settlement of disputes relating to intellectual property. It created international criminal penalties for anyone found abusing trademarks and copyrights through counterfeiting or piracy.
What Do Intellectual Property Lawyers Do?
There are three segments of intellectual property that lawyers can focus on: counseling, protecting, and enforcing.
- Counseling: Client counseling revolves around how best to protect the intellectual property of a specific client. This can include conducting searches on trademarks proposed by clients and counseling them on the availability of those marks. To counsel a client on patents, a lawyer must have a technical background to properly understand the client's patent and assess its validity and likelihood of receiving a patent.
- Protecting: Protecting a client's intellectual property involves registering their trademarks, patents, or copyrights to obtain the greatest rights available. For trademarks and patents, this means preparing and filing an application with the United States Patent and Trademark Office and responding to actions issued by the USPTO.
- Enforcing: The enforcement of intellectual property involves protecting the client's IP against infringing uses. This can sometimes lead to litigation in federal court.
Other roles of an intellectual property lawyer may include licensing, due diligence for mergers or acquisitions, and developing strategies to protect their IP both internationally and domestically.
Frequently Asked Questions
- How can I learn more about intellectual property law?
If you want to learn more about intellectual property law, the World Intellectual Property Organization (WIPO) is a great place to start. The organization's website is a forum for global intellectual property services, policies, and information. They also run online workshops, seminars, and training courses where you can learn more about a specific piece of intellectual property or laws in a certain country of interest.
If you need help with intellectual property law, you can post your job on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.