Making sure you protect your business assets is not just about insuring against loss, it’s also about protecting your intellectual property.
And, in the digital age that includes social media channels and non-fungible tokens, making sure you know how to protect your innovations, content, and logos across all platforms is more critical than ever.
According to Andrew Dorisio, intellectual property attorney at Dickinson-Wright in Lexington, intellectual property is broken down into three categories: patents, trademarks and copyrights.
Patents cover how something works or looks. Trademarks protect names and logos. Copyright protects created content, such as a book, image, or white paper.
Dorisio says owners must register their business names and logos to protect their assets down the line. Most companies determine if a name is free and clear to use at the state level before using it. But if someone in another state is using the same name, you may run into unbranded issues, he says.
Take the case of Lady Antebellum. In June 2020, the country band decided to change their name to Lady A due to racial unrest and to apologize for any pain their name may have caused. Blues singer Anita White, who is black, objected, saying she had been performing as “Lady A” for more than two decades. The country band sued White for exclusive use of the name. White filed a countersuit for $10 million, claiming that the band’s use of the name she had previously used would cause her damages and lost sales.
In January 2021, the two parties settled the matter and filed documents in federal court to end their mutual lawsuits against each other. Terms of the agreement were not disclosed.
The legal battle could have been avoided if either party had had a trademark.
“It’s not enough to have the Kentucky Secretary of State clear your company name,” Dorisio says. “If the mark is clear, you must register it. It’s not cheap to do it, but it’s worth it.
Changes in the digital world also make content protection important, said Peter Rosene, intellectual property attorney at the Louisville law firm McBrayer. Rosene said it’s important to understand what copyright is and who owns it.
Copyright refers to anything created, such as a blog post or a short video. Generally, he said, whoever creates the work owns the copyright.
But if a company hires an influencer to create a video mentioning them, for example, they might be surprised to learn that the influencer owns the rights to that video.
“As a general rule, it will always be the person who made the video or took the photo who owns the rights,” Rosene says. “But what you have to do then as a savvy business owner, you have to realize that you’re not the content creator, so you don’t legally own the copyright, and you have to have the creator sign of content about his rights.”
This can be accomplished through a “cash for work” contract which states that you, as a company, have hired this person to create a separate product for you and they assign all rights to you.
But, points out Rosene, protecting your intellectual property is a self-policing activity. It is the Company’s responsibility to monitor its copyrighted material and ensure that it is not misused.
“Copyrighted material is only good if you’re willing to protect it,” he says. Patents protect how something works
and what it looks like, says Warren Schikli, intellectual property attorney at Stites & Harbison.
“What patents don’t do is give you the right to make an invention,” he says. “Patents give you the right to prevent others from making the invention.”
Patents are a way to promote innovation, he says, and were discussed in the Constitution in that vein.
Schikli says more companies should protect themselves by registering trademarks and obtaining patents. However, one way to protect intellectual property is for free.
Protecting trade secrets is nothing more than keeping them secret, he says.
Devising ways to keep a recipe secret, like the formula for Coca-Cola, is a good way to protect that intellectual property. Whether it’s letting a limited number of people know the secret, protecting a supplier’s name, or making sure no one knows every step of a 12-step process, it’s possible to keep trade secrets without having to go broke. .
But registering trademarks and copyrights is the easiest way to protect intellectual property, he says.
“If you have a business, get a good trademark on the name,” he says. “I think companies should do a better job of protecting themselves.”