Starting a Business 101: The Initial Establishment and Protection of Intellectual Property

By: Rudman Winchell Attorney Jonathan Bench

 

Owners of new, successful businesses generally have several things in common. First, they offer a product or service that is unique in some way to their target market. Second, they actively seek out and utilize enabling technology to further distance their products or services from competitors. Third, they understand the importance of and implement the practices required to protect their products or services. This blog contains a few considerations and best practices with regard to establishing and protecting intellectual property rights, focusing on actions which are simple to take. For more involved aspects of protecting intellectual property, contact an experienced intellectual property lawyer.

DBAs. Your business’ name is a form of intellectual property and is often the first (and consequently more lasting) impression a customer has of your company. Choose wisely. As current Maine law stands, your business’ name must be distinguishable from every other Maine business, and you must include the “LLC” (or similar) entity identifier in the business’ name in whatever medium you use (print, web, radio, etc.) if you organize as a limited liability company. Alternatively, you can complete a “doing business as” (DBA) filing with the Maine Secretary of State. This filing allows you to drop the required entity identifier from the name of the company. You may also choose to file a DBA for a completely different name under which you will conduct business, separate from your business’ legal name. The State of Maine charges $125.00 for the DBA filing, and unlike the statutorily-required annual report, it does not need to be renewed annually. The purpose of using an entity identifier is to put your clients, vendors, financial institutions and the government, among others, on notice that from a liability standpoint you, in your individual capacity, are personally distanced from the business’ actions. (Stay tuned for a future post regarding establishing and maintaining the maximum degree of personal liability protection from your business – also known as the “corporate veil.”)

Copyright ©, Trademark ™ or Service Mark SM Protection. Copyrights, trademarks and (to a lesser extent) service marks more readily come to mind as traditional intellectual property. A service mark is a logo, symbol, etc., used in connection with services provided (such as banking or hospitality services) to customers by your company; a trademark is a mark affixed to any tangible goods you may manufacture or sell; and a copyright notice will be used on written materials authored by you. To give notice that your written materials (print or web) are copyrighted or are protected under a mark, you should include the following: “© 2013 Name of Company, Inc./LLC. All Rights Reserved.” and “Name of CompanyTM/SM” whenever you display copyrighted material in print or use trade/service marks in print. As mentioned in the previous section, if you have completed an assumed name filing with the Maine Secretary of State, you may omit the entity identifier from the copyright, trademark or service mark notice and use your business’ DBA name. Trademark and service mark symbols are used with unregistered marks, meaning those that have not been registered at the federal level with the U.S. Patent and Trademark Office (USPTO). Even though you have not registered your marks, using one or more of the above symbols (as appropriate) prevents an infringer from raising the “innocent infringer” (or the “I didn’t know”) defense. Similarly, using the © symbol takes that defense away from copyright infringers. (Note, however, that use of these symbols is optional, and you still have rights in your intellectual property even without their use.) For goods and services having federally registered trademarks or service marks, use the ® symbol rather than ™ or SM. Copyrights may also be registered, through the Copyright Office. Registration does not grant the copyright (which is automatic), but it is a precondition to bringing a lawsuit for copyright infringement.

Additional Plain Language Copyright Protection. Your use of the copyright notice will be sufficient to put others on notice that the information contained in your materials is proprietary. However, if you desire additional plain language to put laypersons on notice, you may use the following or similar language in addition to the copyright notice described above: “The information contained herein is proprietary and protected by U.S. state and federal laws. Any reproduction, redistribution or transmission without express written consent of Name of Company, Inc./LLC is strictly prohibited.”

Patents. If you will be developing a unique technique, process, technology or good in your business you may be entitled to file a patent application for that technique, process, technology or good. Unlike trade/service marks and copyrights, however, you do not get a patent automatically through use, but rather the USPTO must approve the application and make an affirmative grant of patent protection. Moreover, if you are using known techniques and technology or selling others’ goods or goods which are not novel, you cannot protect your work with a patent.

Not all businesses require all of the above mentioned intellectual property protection, but each business owner should carefully consider the business’ product and/or service offerings, any enhancing or enabling technology utilized and the appropriate level of protection required. This linked article provides some helpful starting points in choosing a name for your business or product. For additional resources, the USPTO’s website gives information on patents and trademarks, and the Copyright Office’s website gives information on registering copyrights.