Intellectual Property is often referred to as IP. IP is the category of intangible rights protecting commercially valuable products of the human intellect. The categories refer to copyrights, trademarks, word marks, service marks, trade secrets and patents. This category can also include publicity rights, moral rights, story rights and rights against unfair competition.

Copyright - Copyright is a property right in an original work of authorship. This would include literary, musical, theatrical, film or artwork.

Trademark - A trademark is a word, phrase, logo or graphic symbol that is distinctive of a genuine product or service.

Patent - A patent is a governmental grant of right or authority of an invention.

The foundational decision in intellectual property protection vests in the origin of the rights, but since the government takes authority over assigning dates to these rights, the rights are not always absolute.

Copyrights - Copyrights vest in common law, but the authority is the Library of Congress. Where the rights are granted by the government as to the date of creation, most of the time the government authority wins in civil court.

Trademarks - Trademarks also vest in common law. Instead of exclusively by being the first to use a mark in commerce, the rights may be vested by filing "intent to use."

Patents - The right of the patent theoretically goes to the first to invent, but this is only theory. In reality, the authority in most cases goes to the inventor who is "first to file."

Once a filing of any kind is granted through the application process, the owner or author is official (that is, until they are challenged).

With copyrights, the government only files and deposits. They do not make rulings except to the date of filing.

A trademark examiner examines the application over trademarks to make sure the trademark is clear to use, then the USPTO grants publication.

A patent has an application process and the "first to file" is the "supposed" owner, however by pure common law the inventor is the one who thought up the idea. Conversely, the owner might not be the filing party of the patent. Keep in mind, it can get confusing. We have written time and time again about people who had thoughts and creations and did not file to claim their rights only to have them taken by others. This can be a common problem with patents, but it affects all Intellectual Property types.

The big question is how do you protect Intellectual Property?

The typical legal answer, "that depends." This means that a layperson cannot know all of the options for protection and should seek expert help and opinion. The first thing you should do with ALL Intellectual Property is file!

What happens after you file?

You wait for a piece of paper to tell you that you own the rights OR that you have a date of registration. When you file an application the date of filing is created. With patents and trademarks, the government grants the rights and with copyrights if there is a dispute, the parties will settle it in civil court.

You can use your copyright how you please because it will be up to you to defend yourself. You can use your trademark with the "R" and when your mark is published you can use the "TM." With a patent, if you do use your patent, you are proceeding with risk until you have been granted the right. Currently the patent laws are changing as to who owns the patent and when you can begin use.

Can I file myself?

You can file yourself; people do it all the time, but you will have to sort through a myriad of procedures, stipulations and follow-ups with the exception of copyrights where you fill out the application and send in your money and your sample.

What if I do not file?

The greatest example is Harry Potter. The series has grossed worldwide 9 billion dollars. It is without a doubt a great example of what we are talking about.

Below is an excerpt from a previous Trustmakers newsletter with Greta Van Sustern interviewing Nancy Stouffer. Stouffer is the woman who claims to have invented and thought of Harry Potter accussing J.K. Rowling of stealing her characters and her idea.

Trustmakers Newsletter

Take the case of J.K. Rowling and Harry Potter. A New York author, Nancy Stouffer, claimed that she conceptualized and wrote the original Harry Potter. Her book was self-published and self distributed on the East Coast. Stouffer claimed that J.K. Rowling stole the characters from her 1984 book "The Legend of Rah and Muggles" which had a character called "Larry Potter." Nancy Stouffer had the burden of proof to claim that she had the rights before J.K. Rowling. Stouffer claimed that she did not file any papers because she had "Common Law" rights and no paperwork was necessary other than the original work and "first to use" claim as in trademark law.

Here are a few excerpts from Greta Van Sustern on Court TV’s Burden of Proof, July 2000. Kevin Casey is the attorney for Nancy Stouffer. Below are the excerpts on why she did not proceed with the proper paperwork to secure her rights.

VAN SUSTEREN: Today on BURDEN OF PROOF: Muggles, wizards, and magical adventures, 5.3 millions copy of the new "Harry Potter" book will be released this weekend. But a lawsuit accuses the author of stealing the magic. (part of the conversation on the violation of the use of the work “muggles”)

VAN SUSTEREN: Attorney Kevin, before we get to basis of Nancy's lawsuit against J.K. Rowling and others, including Time Warner, which is the parent company of CNN. There was a lawsuit filed, sort of a preemptive one filed by J.K. Rowling about six or eight months ago. What was that about?

CASEY: We were in negotiation, at the time, with counsel for Scholastic. And I remember it was the Monday before Thanksgiving, I believe that was the 22nd, they filed suit, actually Scholastic sued us first. We weren't about to go to court and try to resolve this dispute, we were trying to do it in the negotiation realm, and their suit was something called a declaratory judgment action, basically asking the court in New York to judge we did not have -- Nancy did not have trademark rights in "muggles," and that our unfair competition allegations were unfounded.

VAN SUSTEREN: Kevin, has Nancy actually, does she actually have a trademark?

CASEY: She has a trademark. There are two types of trademarks, basically, one is called a common law trademark, which is what Nancy has. That is, you establish through use of the mark, in association with consumers with your products, and you get rights that are able to be enforced. The second type is to get a federal trademark registration, we have applied for that, we have not yet obtained one.

Conclusion:

Sadly, for Nancy Stouffer, as plaintiff with the burden of proof, she did not have the proper federal registrations. Common Law rights are a very weak issue in this country. The moral of the story is that our law has advanced to a point that minimum agreements and registrations are required to claim any rights of any type. If you have to prove that you have the right to any type of confidentiality, you should declare this right and have others agree to it.

The bottom line: there is no protection in a confidentiality agreement. We know this because the only way to keep a secret, is to keep it a secret. Not a single ouce of protection occurs in these agreements. No matter how well it is drafted, a confidentiality agreement cannot prevent anyone from telling your secrets or giving away your proprietary information. You must have the proper documents, not having the proper documents is a poor strategy.

The BIG lesson learned?

Asset Protection cannot be underestimated!
Wouldn’t it be magical if we could all own something like Harry Potter?

In a follow up newsletter, we will discuss placing Intellectual Property into a trust as a method of Asset Protection.