Intellectual Property

In the mind of a business owner the term “intellectual property” should be synonymous with “brand and asset protection”.  Your company’s name, logo, and tagline establish your unique brand in the marketplace and help you set yourself apart from the competition.

Similarly, anything your company creates such as art work, manuscripts or even blog post are assets for your company and need protection. Even the way you do certain things within your company can be considered an intellectual property asset worthy of protection.

Great business ideas are rare and hard to come by. Without the right protection your great business idea, i.e. your intellectual property is vulnerable to being exploited by competitors or even stolen right out from underneath you.

North Carolina Small Business Law offers services in the areas of Trademark, Copyright and Trade Secret Law to help protect your brand and intellectual property assets.

Trademarks

It takes hours of work to come up with a great business name, logo, and tagline and it takes even longer to build a reputation that customers associate with those elements of your brand. Most business owners have hundreds of hours and thousands of dollars invested in promoting their name, logo, and tagline, making these elements of their brand highly valuable assets. 

Why leave your hard-earned reputation vulnerable to theft or abuse by competitors and online impostors? A little effort upfront can preserve your brand and save you thousands in legal fees if you ever have to defend it against competitors and would be imposters.  

Filing a trademark with the United States Patent and Trademark Office (USPTO) is the best way to protect your business name, logo, and tagline. However, the process to register a trademark can be long and complex. The USPTO has strict deadlines and legal requirements for registering a trademark and if you mess up the process the filing fees are non-refundable.

North Carolina Small Business Law works with business owners to ensure their trademark applications are approved and all of their intellectual property is protected. Let us focus on mastering the arcane rules of a federal bureaucracy while you focus on mastering your business. To discuss your Trademark issues, give Attorney Jeffrey Bloomfield a call at 316-221-4457 or email him at Jeff@ncsmallbusinesslaw.com.

Common Trademark Questions

What qualifies as a trademark?

A trademark, sometimes referred to as a service mark, can be almost anything associated with your brand name. A trademark can be a word, phrase, symbol, design or combination of elements that distinguishes the source of the goods or services. A common example is the brand Nike. The name Nike, the swoosh symbol, and the tagline “just do it” are all registered trademarks of Nike. Even a particular color associated with your brand can be a trademark, for instance UPS has trademarked the brown color they paint all their trucks.

When should my business register a trademark?

Managing legal risks proactively is always the best approach. Registering sooner rather than later thwarts copycats and others from stealing your great business ideas. This is why many businesses will register a trademark for their name and logo during their incorporation process.

How long does the trademark registration process take?

A large and diverse number of factors affect the length of the registration process. The minimum time frame is about 12 months. This lengthy application process is why many business owners begin the process during their incorporation. It is never too soon to begin the process. Call North Carolina Small Business Law at 336-221-4457 to start the trademark registration process.

A note of importance for filers regardless of how long the approval process takes is that you are entitled to retroactive protection going back to the initial filing date. Thus, if any dispute arises during or after your trademark application you get the full protection associated with a registered trademark.

How is a registered trademark different than a common law trademark?

A trademark registered with the USPTO is known as a statutory trademark and it can be enforced in every U.S. state and territory. The owner of the mark can sue for damages (including lost profits), and most importantly the owner can recover attorneys’ fees and costs incurred in protecting the trademark against infringement.

A common law trademark also called an unregistered trademark grants certain rights and protections to the first business or individual to use a particular word, phrase, symbol, design or combination of elements to represent a service or good. No filing is necessary to receive the protection. However, it is significantly harder and costlier to enforce an unregistered trademark. Recovery of legal fees spent defending the trademark are not available and any injunction you get against an offender only applies to your regional market.

Trade Secrets

Trade secrets are a valuable intellectual property asset for many businesses. Courts define a trade secret as “any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others.”

A trade secret example is Kentucky Fried Chicken’s original recipe. The recipe is kept in a vault and only a select group of KFC employees know the recipe, and they are bound by an iron clad non-disclosure agreement (NDA) to never reveal the recipe. Another example of a trade secret might be your carefully curated list of current and potential clients.

Unlike a trademark or copyright there is no way to register a trade secret. After all, registering a trade secret would require revealing the secret. So how do you protect a trade secret?

First you make an effort to keep the information of your formula, pattern, compilation, program, device, method, technique or process a secret. Then you have employees, vendors, or anyone else involved with the business sign a well written Non-Disclosure Agreement (NDA) prepared by an attorney.

An NDA is exactly what its name implies. A legally binding contract in which a person or business promises not to disclose your companies trade secrets. Unlike other contracts, North Carolina law requires NDAs to be narrowly written to serve a legitimate business interest and adhere to North Carolina’s statutory definition of a “Trade Secret.” Thus, an NDA that is drafted too broadly can invalidate the agreement and leave a business vulnerable to a vengeful employee or unethical vendor.

North Carolina Small Business Law works with businesses and individuals to draft strong NDAs that protect their intellectual property. A well drafted NDA is a great tool to prevent your trade secrets from getting into the hands of your competitors. To discuss the benefits of an NDA or protecting your Trade Secrets give Attorney Jeffrey Bloomfield a call at 316-221-4457 or email him at Jeff@ncsmallbusinesslaw.com.

Common Trade Secret Questions

What is the difference between an NDA and Confidentiality Agreement?

There is no difference. A Non-Disclosure Agreement (NDA) is known by a number of different names. A Confidentiality Agreement (CA), Confidential Disclosure Agreement (CDA), Hush Agreement, Proprietary Information Agreement (PIA) or a Secrecy Agreement (SA), are all essentially the same thing and achieve the same objective as an NDA.

What information should an NDA include?

A well written NDA should include five key clauses:

            (1) The parties must be identified,

            (2) A definition of what information is confidential,

            (3) The scope of the confidentiality obligation by the receiving party,

            (4) Any exclusions from confidential treatment, and

            (5) The term or length of the agreement.

There are other provisions you might consider too, depending on your businesses specific circumstances. Call North Carolina Small Business Law to discuss your particular NDA needs at 336-221-4457.

What is the difference between a Mutual and Non-Mutual NDA?

A mutual NDA, also referred to as a bilateral NDA is where both parties anticipate sharing confidential information. These types of agreements are common when two businesses are contemplating a merger or a long-term business relationship.

A non-mutual NDA or unilateral NDA is when only one party will be sharing confidential information. A non-mutual NDA is more common in the small business world. Often employees and vendors are asked to sign an NDA to prevent them from taking your confidential information for their own benefit or selling it to a competitor.

Copyright

A copyright protects your creative efforts for your “original works of authorship,” that are “fixed in a tangible form of expression.” These fixed tangible forms of expression typically encompass four major areas:

  1. Literary Works: Books, magazines, translations, websites and blogs.
  2. Visual Arts: Photographs, paintings, jewelry, sculptures and architectural designs.
  3. Performing Arts: Plays, music concerts or almost any work performed to an audience.
  4. Motion Pictures and Audiovisual Works: Movies, television shows, video games, animations and short videos.

These categories and examples are not all encompassing and a lot of other original works can and do receive copyright protection. In addition, many works may overlap several of the four categories. In 1998 Congress expanded copyright protections with the Digital Millennium Copyright Act (DMCA). The DMCA grants specific protection for your electronic works such as software, websites, blogs, and videos uploaded to platform such as YouTube.

Registering your copyright with the United States Copyright Office is the best way to protect your original works of authorship. The process to register a copyright involves several legal timing requirements and can take three to sixteen months to complete. Additionally, if the copyright registration is denied the filing fees are non-refundable, so it is important to get it right the first time. North Carolina Small Business Law works with business owners and individuals to ensure their copyright registrations are approved and all of their intellectual property is protected. To discuss your copyright issues, give Attorney Jeffrey Bloomfield a call at 316-221-4457 or email him at Jeff@ncsmallbusinesslaw.com.

Common Copyright Questions

What are the benefits of registering a copyright?

A work that receives a certificate of registration entitles the owner of the work to receive the benefit of statutory damages and attorney’s fees against the infringer. Without registration you are entitled only to “actual damages” and the “profits” the infringer made with your copyrighted work. Actual damages and profits are very hard to calculate and prove in court and even if you can prove them you are still on the hook for all of your attorney’s fees. This makes enforcement of an unregistered copyright impractical and too expensive for most small business owners and individuals. However, with a timely* registered copyright you may elect to seek statutory damages instead and avoid proving “actual damages” and “profits” all together.  Statutory damages can range between $750 to $30,000 as the court consider just. If the infringement is found to be made “willfully” the statutory damages can increase to $150,000 per infringement. Finally, owners of a registered copyright are entitled to attorney’s fees and costs for the defense of their copyrighted works.

*Specific timing issues regarding when the work was published, when it was registered and when any infringement was discovered can affect a copyright owners rights. Note: You can register your work with the United States Copyright Office before you actually publish the work in order to maximize your protection.

Can I sell or license my rights in a copyrighted work?

Yes, you can transfer all of your rights in a copyrighted work or sell a license to another party to allow them to use your copyrighted work in a limited way. Registering your copyright with the United States Copyright Office will make these types of agreements much easier. Most serious agents and brokers who buy or license copyrighted materials from authors and artist actually require a certificate of registration.

How long does a copyright last?

The most basic form of copyright protection arises automatically when the work is created and generally last for the life of the creator plus 70 years.  However, registering your copyright can afford you additional benefits, which may allow you to extend the life of the copyright. The date of publication can also affect the length of the copyright protection and the works copyright renewability.