Tuesday, October 6, 2009

Intellectual Property

You have a great idea. You want to bring it to market. How do you protect your intellectual property from imitation, copying and outright theft? In the US, and other countries, ideas such as trademark, patent and copywrite are used to protect intellectual property.


"A grant made by a government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time."

Patents are best known in the pharmaceutical industry. They invent a drug and get exclusive right to that invention for X number of years. Same thing with Intel and their chips. What many don't realize is under patent law is something called Trade Dress that protects others from copying the visual appearance or use of your product. This is one thing I am exploring right now.


"A distinctive characteristic by which a person or thing comes to be known"

Trademarks include Logos, product names and sayings that are used to identify your product or company. Best known trademarks would include Coca Cola, Disney, Intel and Nike. Anyone can apply for a trademark, but understanding the strength of that trademark is difficult. Trademarks can be looked at in four different ways:


Describes the goods or service offered, such as Computerland for computers, or Park and Fly for airport parking. These tend to be the most difficult to trademark.


Indirectly refers to quality or use of a product. Examples might be, 7-11, for stores open from 7 AM to 11 PM, or mustang for a fast car.


Similar to fanciful, arbitrary trademarks include names that have nothing to with the product. Arbitraty might be Apple, for computers and MP3 players, or Sun for servers. These along with Fanciful tend to be the strongest.


Fanciful trademarks are the easiest to register, and describe a term that has been coined and
had no meaning before the trademark. Examples would include Verizon, Starbucks or Yahoo!.

Primary versus Secondary

Your trademark might not be distictive enough for a primary trademark registration. That doesn't mean you can try and get a listing on a secondary trademark registration. While not as strong as primary, over time, that secondary trademark can move up into the primary zone.

The best example of a secondary trademark is the shape of coke bottles. Coke bottles have a distictive shape and if you look at Pepsi or Dr, Pepper, their bottle shapes are quite distinct. This is where a competent trademark attorney can help you.


Copyright gives the author exclusive right to their published work for a set period of time. As of right now, life plus 50 years I believe. Copyright law states unless you specifically exclude it, all your work is copyrighted. But to enforce it, it has to be registered with the copyright office.

Most people think of music and movies being protected by copyright, but in reality, the content of this blog, or the content of your web page.


I am not a lawyer and if you have any questions about protecting your intellectual property, you really should consult a competant IP attorney. A lot of companies are out there to help you file applications and do IP searches. You are better off doing your filings early, versus having to deal with the legal fees associated with infringing on someones intellectual property, even if accidental.

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Monday, October 5, 2009

Legal Counsel

As my business moves along, and I try and bootstrap it from the ground up, trying to minimize or eliminate fees is key, as it will be for your small business. But at the same time, I am trying to avoid being pennywise and pound foolish. From the get go I have questioned whether I can get any patent protection for my product. At the very least, I was going to trademark it.

Unfortunately, these are dollars that should be spent to at least get adequate counsel. I am glad I did. I met last week with a law firm on an initial consultation. The information I received was invaluable before I paid a dime in legal fees.

First, how did I find this law firm? Truth be told I looked up a few of the local legal firms, that are known for their corporate law practices, and sent introductory email messages to them, explaining who I was, why I was emailing and what I needed. In particular I wanted to talk with an associate that specialized in IP, as well as general corporate law questions, and if possible sales and use tax attorneys.

First law firm came back to me and said, sure we can meet with you, we charge an initial consultation fee of $150. I was prepared to pay it if I needed to until I reached out to the second law firm. They set up an appointment with one of the senior partners, where he listened to what I was doing, and what I was trying to accomplish. He then put me in touch with a younger associate that specialized in trademark.

I talked with the trademark attorney, and set up an appointment to meet with him. Before we even met he gave me some things to look up on a google search so I could understand what I was looking for. All of this at no charge. We met and talked about where I could run into problems, and what else I was looking for. All of this before I got charged a dime. We agreed to let him do some work, maximum two hours at $175 an hour. In addition, he was going to put me in touch with a colleague at another firm to talk patent.

These are the type of lawyers you want. Those that are interested in learning about your business. They make it up in more legal work in the future. Right now I am quite happy I met with them, and will continue to use them in the future. Because they are in a less urban area, their per hour fees are quite a bit less then what I would be charged in Silicon Valley. I figured I just got $10k in education on trademark for nothing.

My advice, do not pay an initial consultation fee. If this law firm wants to build a business with you, they will take a little time to meet with you and understand your business. At the same time, don't waste their time. Come prepared with your prototype, copies of your logos and names, so that the meeting goes smooth and fast. Remember, in the future, $175 per hour billed in 10 minute increments starts to add up over time.

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