You are a business owner with a web presence. During a routine Google search for your page ranking, you discover something disturbing.
There is another company out there with a name very similar to yours and almost identical content on their website. What do you do? Is your company name and website content automatically protected by copyright law?
Should you have registered your company name as a trademark? Can you demand that they change their name and dismantle their website immediately?
Intellectual Property can be a confusing topic, and one that all business owners should know about. Sadly however, many entrepreneurs simply don't. Intellectual property is in very simple terms an idea that legally belongs to somebody, be they a company or an individual.
Only the owner of that idea, or somebody the owner has a legal agreement with can use the idea. Generally, the owner of the idea is usually its creator unless someone paid them to create the idea, in which case the idea's owner is the person who paid for the idea.
There are different kinds of intellectual property, but for the purpose of this article, we will focus on copyright, patent and trademark.
Patent – A patent protects the creators of new inventions. An invention can include anything from a new product or business method to a recipe. If you decide to patent your invention, there a few things you should know. First, you will need to apply for a patent in every country where you would like your invention to be protected.
Secondly, getting a patent is going to cost you a pretty penny. You will have to pay thousands of dollars to patent your idea and it will take a minimum of 2 years (probably more) before you are granted a patent. Also, your precious invention will no longer remain a secret since your patent application will be made public once your application is submitted.
If all of this wasn't enough bad news, patent protection generally only lasts for twenty years from the date of your application. Phew! On the up side, once your patent is accepted, you can sue anyone who tries to manufacture or sell your invention.
It's worth mentioning here that another method to keep your invention protected is to keep the method of manufacturing it a 'trade secret'. If you choose this process, of course, in order to manufacture your product, you will have to tell somebody.
You would have to have anyone who would learn your secret sign a confidentiality agreement. Consult a lawyer if you plan to use this method.
Trademark – Trademarks are the marks used to distinguish one company's products or services from another's. They can include a product name, a slogan, and any other mark that is deemed to be unique to a company such as a logo or unique packaging. As a rule, you can't trademark descriptive words, geographical names or a person's name. You also cannot register a business' name. You can however, register part of a name used to identify a product or service.
For example "Kellogg's Company" is the owner of the "Kellogg's" trademark and the "Rice Krispies" trademark. You cannot register a trademark similar to one that is already in use by another company.
Beware; a trademark does not have to be registered in order to prevent others from using it. If a company is using an unregistered trademark in your geographical area, they can still prevent you from using it. You could perform a search in a trademark database and find later that you are using another company's unregistered trademark.
If you find another company in a completely different industry using your unregistered trademark, you probably won't be able to do anything about it if they are not your competitors or if they are not in your geographical vicinity.
Protection of a registered trademark however, is much stronger than an unregistered one, and once you have a registered trademark, you can prevent competitors from using it, or confusingly similar ones anywhere in the country in which your trademark is registered.
Copyright – Any written text, artistic work, or computer program is automatically protected by copyright. Anything you or I write, be it published, online text or unpublished, handwritten text, is copyrighted. Also anything we draw, paint, photograph, film, or compose is also protected by copyright.
Copyright can be registered, but it doesn't have to be in order for it to be illegal for individuals to copy someone else's work. Copyright also lasts for an extremely long time. Usually it lasts the duration of the author's life plus fifty years at which point it becomes a part of the public domain and can be used by anyone.
Factual information cannot be copyrighted. For example, this article is based on fact. Although you cannot copy my article and claim to have authored it yourself, you can take the facts included in the article and use them in your own written material. If you would like to use a very small portion of someone else's written work, this is usually acceptable as long as you credit the author.
Finally, what do you do if someone uses your work without your permission? Your first step should be to contact the individual. You can usually either go to the contact page on the offender's web site or go to WhoIs.com and enter the offender's domain to find contact information.
If your initial communication doesn't get results, you should then send a 'cease and desist order'. For sample orders, just perform a search on 'cease and desist orders'. Finally if still no action is taken by the offending party, contact their web host and advise them of the situation and finally, contact search engines and make them aware of the situation.
These actions should render the offender's website useless or at the very least give them enough trouble to convince them to remove the copied material.
For more information on intellectual property in Canada, visit the Canadian Intellectual Property Office, for the U.S., visit the United States Patent and Trademark Office and for Europe please visit the European Patent Office.
By Kelly Sims, Virtual Assistant and President of Virtually There VA Services