What Is Intellectual Property?
Intellectual property (IP) is a broad category of assets centered on human creativity. IP includes books, music, recipes, logos, marketing strategies, and visual art—but its reaches stretch even further. In short, if something is unique and human-made, it’s likely intellectual property (or used to be).
Keep reading to learn more about IP and how to safeguard your own creations.
In this article, we'll cover:
Types of Intellectual Property
Many forms of intellectual property can be broadly split into four categories: trademarks, patents, copyrights, and trade secrets. These types of IP have varying laws, registration and maintenance requirements, and lifespans. Let’s take a closer look.
Trademarks
Trademarks are words, designs, phrases, and even sounds that tell consumers who is providing a particular good or service. They are connected to items and offerings for sale, and as long as they continue to be used in commerce, trademarks can live forever.
There are three tiers of trademark protection in the U.S.: unregistered (common law), state registered, and federally registered.
Federal trademark registration—applied for with the U.S. Patent and Trademark Office (USPTO)—provides the strongest rights. These include use of ®, exclusive ownership, and the option to sue for infringement at the federal level.
Examples of registered trademarks include the MGM lion’s roar, Coca-Cola®, Adidas’ three-stripe design, I’m Lovin’ It®, and The New York Times®.
Patents
Patents offer the exclusive right for inventors to create and sell their inventions for a set period of time. Only creations that are new and non-obvious, or that refine earlier inventions, are granted patent rights. (Non-obvious means an element of discovery must be present. A person with “ordinary skill” in the invention’s industry should not look at the patent and think duh.)
Patent information is made public upon registration or abandonment. At the end of a patent term, the protected information is available for use and the owner’s exclusivity over it goes away.
There are three types of patents:
- Design patent: protects appearance
- Utility patent: protects process and function
- Plant patent: protects new species of asexually-reproduced plants
Like federal trademarks, patents are applied for with the USPTO. Utility and plant patents last for 20 years, while design patents expire after 15 years.
Examples of patents (past and present) include instant camera technology, the electric light bulb, iPhone design, dog booties (of all shapes and sizes), and GPS.
Copyright
Copyright protects original, fixed-form compositions. A work does not have to be published or registered to earn copyright protections—the second it’s turned into a medium that can be perceived or reproduced it starts earning rights.
Many creations are protected by copyright, including poems, songs, illustrations, video games, notated choreography, certain architecture/blueprints, and movies. Ideas on their own cannot be copyrighted. Saying something out loud does not garner copyright protection, but recording it does.
Copyright registration is handled by the U.S. Copyright Office. Work created after 1978 is protected for the life of the owner plus 70 years. After a copyright expires, the work enters the public domain and is available for use. F. Scott Fitzgerald’s The Great Gatsby, Ernest Hemingway’s The Sun Also Rises, and Louisa May Alcott’s Little Women are all formerly copyrighted books that are now in the public domain.
But this reality can be tough to accept. Disney, for example, has spent years preparing for Steamboat Willie’s release to the public domain. They were a main player in the lobbying effort of the ‘90s that led to the Sonny Bono Copyright Term Extension Act, bitingly nicknamed the “Mickey Mouse Protection Act.” The act increased existing copyright terms from 50 years to 70 years, plus the life of the author. (Steamboat Willie was lucky enough to have his copyright extended.)
Trade Secrets
A trade secret is company information that holds value because it is not widely known. Trade secrets earn protection through their confidentiality and the lengths owners take to keep the information under wraps.
Trade secrets can be legally reverse engineered. If someone is able to figure out your methods this way, you’ll be out of luck. And since the power of a trade secret lies in its confidentiality, it cannot be registered. In fact, if a trade secret is leaked or discovered, there is no way to restore the power the secret once held, even if legal action is taken.
Famously kept trade secrets include: the Coca-Cola recipe, Google search algorithm, and reasoning behind The New York Times Best Seller List selections.
How to Protect Your IP
The best way to protect your intellectual property depends on the type of IP in question. But there are a few steps you can take that will be relevant to most IP types.
Especially when protecting trade secrets, non-disclosure agreements (NDAs) will be an important part of your IP protection plan. NDAs are not only a binding contract that discourage signees from sharing confidential information, they offer stronger legal footing should information be breached.
You’ll likely want all employees to sign an NDA and even contractors or other non-employee partners.
The importance of NDAs is all too clear when looking at Farmers Edge Inc. vs. Farmobile, LLC. Farmers Edge alleged that former employees of one of its companies misappropriated trade secrets and brought them to their next employer, Farmobile. The case reached the Eighth Circuit Court of Appeals in 2020, which affirmed the lower court’s decision: because the employees never signed NDAs and other “reasonable measures” were not taken to keep the secrets quiet, there were no trade secrets to protect.
In cases of IP infringement or misuse, having records back up your claims can go a long way. How can you show you were the first to use a trademark if there’s no record of first use? How can you prove you dreamed up that top-secret recipe if you only verbally explained it to employees?
Of course, there’s a second side to this coin. While detailed records can save you in a legal pinch, they can also pose a problem if they’re sloppily kept or hacked. Make sure your valuable information is kept under lock and key—literally and/or digitally.
Registering your intellectual property is one of the most obvious protection strategies. Trademarks, copyrights, and patents can all be registered federally, and doing so gives you exclusive ownership rights for a number of years. (Or potentially forever, in the case of trademarks.)
If you’re considering registering a patent, you’ll need to decide if you’re comfortable with the disclosed information becoming public upon registration and available for use in a couple decades. If you’re not, it may make more sense to keep it as a trade secret.
Even if you take other steps to protect your IP, it may all be moot if you don’t monitor for infringement and enforce the rights you’ve worked for.
For example, trademark monitoring can be beneficial for the life of your mark. This means making sure no marks with a likelihood of confusion to yours enter the marketplace. And if such a mark does crop up, enforcement could mean sending a cease and desist, suing, or taking other legal actions.
Want help protecting your IP? Our Trademark Service helps you navigate trademark registration. And for Utah business owners and residents, the attorneys at Law on Call can draft contracts like NDAs.
Avoiding Intellectual Property Infringement
While you’re probably most concerned with protecting your own intellectual property, it’s just as important to make sure you’re not infringing on others’ rights.
Intellectual property infringement (or misappropriation, in regard to trade secrets), occurs when one party’s IP is improperly used by another. Infringement can be willful or unintentional.
To avoid unintentional infringement, do your research and due diligence. This could include situations like:
- Launching a new product? Make sure a patent isn’t already protecting something like it.
- Registering a trademark? Check to see if a similar mark already exists.
- Creating derivative artwork for public viewing? Get permission from the copyright owner first.
How do you know if something is intellectual property?
Every time you read something, listen to music, watch a show, buy ready-to-eat food, wear clothes, talk on your cellphone, or drive a new car, there’s a good chance you’re interacting with intellectual property. If you need to find out for sure whether a creation has IP protections, and/or what protections it has, good places to start are the federal databases for registered trademarks, copyrights, and patents:
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- Registered trademarks are found in the USPTO’s Trademark Search.
- Registered copyrights from 1978 to the present are in the Copyright Catalog.
- Patents can be researched via the Patent Public Search.
Frequently Asked Questions
The concept of intellectual property was formed with the intention of fostering creativity and innovation. If creators have legal protections over their work, the idea is that they will be more likely to keep creating.
The owner of intellectual property is often the person or people who created it. But if the work was “made for hire”—i.e. created for a business, government, or other entity—then the institution is the owner.
Ideas and unoriginal works are not intellectual property. While IP is considered intangible, this is a bit misleading. If a creation exists only in a person’s mind, it is not protected.
Intellectual property longevity varies by type. Patents are good for a minimum of 15 years and maximum of 20 years. Copyrights last for the life of the creator plus 70 years. (Works made for hire are protected for 95 years after publication or 120 years from creation, whichever is shorter.) Trademarks can live forever if they remain in use and are renewed as needed. Trade secrets can also live forever, as long as they are never discovered.
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*This is informational commentary, not advice. This information is intended strictly for informational purposes and does not constitute legal advice or a substitute for legal counsel. This information is not intended to create, nor does your receipt, viewing, or use of it constitute, an attorney-client relationship. More information is available in our Terms of Service.
