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Copyright v. Trademark

I am often asked about copyrighting a company name or a tag line. The question suggests an understandable confusion about the roles of copyrights and trademarks.  They are in fact very different tools.  Understanding the difference can help you protect your valuable intellectual property.

Copyright applies to expression of an idea.  This can be words on a page, a picture or photograph, technical drawings, video, music, or any other form of expression you can imagine. Anything that expresses a thought or idea is subject to copyright protection. The key work is “expresses”.  Copyright does not protect the idea or thought itself, but only the way it is expressed on paper, canvass, film or recording medium.  If you own a copyright in a particular work you have a legal right to stop anybody else from copying that work or from creating a derivative of it.   You have no right to prevent another person from coming up independently with her own expression of the same idea or thought you had in mind.  There are some exceptions to your right to prevent copying, but that’s generally the way it works.  The interest the copyright seeks to protect is the uniqueness of your work and thus its value.

Trademark, or servicemark, is different. A trademark is a designation of origin of your product or service, and carries with it your professional or business reputation.   Trademarks tell people that a certain product comes from you. If you have a reputation that is favorable, that trademark has value. You can prevent others from suggesting they are you and from trading on the value of your reputation by using your trademark.  Think of the Golden Arches.  As soon as you see them, you know what you can get at that store and you know what the quality will be.  McDonalds has spent a lot of money building that image and reputation, and they spend a lot of money protecting it.

There is some overlap between trademark and copyright, particularly in the area of slogans or taglines.  Think of the slogan that goes with Goldfish crackers, “The snack that smiles back.”  That both expresses an idea (copyright) and makes you think of the product (trademark).  Both the rights are independently protectable in a court of law.

The difference is important because they are different rights and protect different interests.  If you treat a trademark as a copyright, you could lose your trademark rights, and visa versa.  It is a good idea to consult your lawyer if you are not sure what you have, especially if you plan to spend money on it to build your business.

By Terence N. Church, Chairman of the Intellectual Property and Technology Licensing Group at Silicon Valley Law Group.  Terry works with companies in securing and protecting trademark, copyright and trade secret intellectual property rights.  You can view more information about Terence Church  and his law firm Silicon Valley Law Group at their main website www.svlg.com. Contact:  Terry Church (925)389-8820, email tchurch@svlg.com

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Protecting Your Trade Secrets with Non-Disclosure Agreements

A non-disclosure agreement (commonly known as an “NDA”) is a simple agreement, but it is vital to protecting your valuable trade secrets.

A trade secret is the most common type of protected intellectual property, but it requires some effort and attention.  Under California law, in order to claim something as a trade secret, the owner must show reasonable steps have been taken to maintain its secrecy.  One way to do this is to make sure that any person or company to whom a trade secret is disclosed has signed an NDA.  The NDA provides that the receiver of the trade secret will itself take reasonable steps to protect its secrecy and will not disclose it to any other person or company without the permission of the owner.

If you disclose your trade secret to a customer or prospective business partner, for example, and you have not had them sign an NDA, you could be seen as not having taken the required steps to protect its secrecy.  If that happens, you could lose your trade secrets rights and your right to prevent others from using it for their commercial gain.  You have, in effect, converted that otherwise valuable secret to public information.

Don’t be shy about asking people to sign an NDA. It costs them nothing; you are only asking them to keep your secret.  If they are not willing to agree to that, then you should think carefully about whether you want to disclose your secret to that person.

Your trade secrets are valuable assets.  You can lose them very easily if you don’t protect them.  An NDA is an important step in the protection process.

By Terence N. Church, Chairman of the Intellectual Property and Technology Licensing Group at Silicon Valley Law Group. Terry works with companies in securing and protecting trademark,copyright and trade secret intellectual property rights. You can view more information about Terence Church  and his law firm Silicon Valley Law Group at their main website www.svlg.com. Contact:  Terry Church (925)389-8820, email tchurch@svlg.com

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Why You Must Safeguard Your Company’s Intellectual Property

Some time ago, I represented a famous sports celebrity who had lost a fortune’s worth of valuable jewelry to a hotel thief. She thought she had protected herself by carefully hiding them in suitcase in her hotel room. My client could have used the hotel safe behind the front desk, but she opted to simply hide them herself. After all, she had done this many times before and had never had a problem. This time she wasn’t so lucky. The thief hit paydirt on his first try!

The lesson is simple and applies equally to today’s corporate world: It’s crucial to use the right tools to protect your jewels. In the information age of today, the jewels are different, but the principal is all the more fitting.

Today’s jewels are your company’s intellectual property — know-how, branding, documentation and coding. The secret sauce. These are the life blood of a knowledge-based company. Left unprotected, they can easily vanish and take with them the hard-earned value of your company. It can happen without your even knowing it.

Don’t Overlook These Important Steps

Get and keep signed NDAs. All prospective customers, vendors and contractors should sign confidentiality or non-disclosure agreements, otherwise known as NDAs. These agreements are very common, and most partners will sign them as a matter of course. But they are absolutely essential to protect your trade secret rights, which are the most common form of protection and the easiest to lose.

Many companies keep printed forms available which can be quickly signed at even the most impromptu meetings. The hard part is keeping a record of them. Go low-tech; keep them in alphabetical order by partner name in a three-ring binder.

Claim your trademarks and service marks. Trademarks are about protecting the brand which supports your reputation and good will. If you want to build brand name value and loyalty, you must make sure none of your competitors can use your brand. To protect against loss of this valuable asset, you must do two very important things.

1. First, you must clearly, loudly and often shout to the world that you claim the name as yours as associated with your product or service. Companies that have failed to do this have suffered well-known consequences. Think refrigerator, aspirin and escalator. Each of these started out as a brand name, but the owners did not aggressively protect their use. They are now common nouns.
2. Secondly, you must carefully and aggressively police the use of the trademark and the quality of the goods and services with which it is associated. If you don’t consistently enforce proper use and quality standards, you will be seen to have abandoned the mark and you will lose the exclusive right to use it. One final thought: a trademark is an adjective describing your product. It is not a noun. In its proper use, it is always paired with the product or service to which it relates. For example, one creates on an Apple computer; one eats an apple.

Safeguard your company’s valuable intellectual property assets. At the earliest opportunity, obtain competent legal advice to protect your corporate IP assets. It won’t break the bank but it will safeguard your company’s future earning power.

By Terence N. Church, Chairman of the Intellectual Property and Technology Licensing Group at Silicon Valley Law Group. Terry works with companies in securing and protecting trademark,
copyright and trade secret intellectual property rights. You can view more information about Terence Church  and his law firm Silicon Valley Law Group at their main website www.svlg.com. Contact:  Terry Church (925)389-8820, email tchurch@svlg.com

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