Five Ways To Protect Your Ideas

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In addition to covering conventional texts such as books, pamphlets, and the like, the copyright laws protect virtually all written and artwork material used in promotion and advertising. This would include package design, all advertisements, operating and sales manuals, and operating instructions. Artwork protected by copyrights can also include such products as fabric designs, lamp bases, and belt buckles.

Basic requirements to preserve copyright rights: Unlike trademarks, exclusive rights exist in copyrights upon creation. To preserve that right, be sure that the proper notice appears on every work whenever it is shown publicly. Federal registration should be obtained on any important work, since you'll need it if you bring an infringement suit. Failure to file for registration promptly can prevent recovery of statutory damages and attorney's fees. On the other hand, companies that create many copyrighted works can save money by forgoing federal registrations on copyrights until it becomes apparent that a given work will have some importance.

If you hire a freelancer to prepare any text or artwork for you, you must have him agree in advance, in writing, that the work is your property. Otherwise it belongs to the author or artist, who can dispose of it as he wishes.

TRADE DRESS UNFAIR COMPETITION LAWS

In addition to protections granted by federal law -- i.e., patents, trademarks, and copyrights -- there are two important state common law protections available. One is trade dress unfair competition laws. The term "trade dress" refers to the distinctive way the products is "dressed up" with, for example, labels, packaging design, or color schemes.

These laws protect against unauthorized copying of ornamental and distinctive package or product designs (but not functional features) that, through use, have come to be recognized by the public as coming from a certain source. These rights exist automatically, without any application being filed, as soon as such public recognition has come into existence.

While these rights are similar to trademarks, and do in fact overlap with trademark rights, unfair competition encompasses a greater range of design possibilities. Some designs that have been protected by courts but which did not qualify for trademark protection include a mattress-cover design, a distinctive bicycle color scheme (a pink body frame, powder blue handlebars, and yellow wheels), and a color coding system used in milling machinery.

Basic requirements for preserving trade dress unfair competiton rights: Since no applications are filed to effect these rights, the best advice is to develop distinctive product and package designs promptly, and then publicize them as much as your budget allows by, for example, including them in your advertisements.

TRADE SECRETS

The other common law protection, trade secrets, may be defined as all those documents and pieces of information within a company that the company takes steps to conceal from outsiders and that are not necessarily disclosed upon the sale of the company's product or services. Examples include customer lists, blueprints, and recipes. The company's ownership in these secrets exists upon their creation. No application need be filed anywhere.

However, maintaining secrecy is essential; a company cannot prevent an outsider from using the secret if the company voluntarily or carelessly revealed it to him without a signed agreement prohibiting use of these materials. The company also cannot prevent outsiders from using its trade secret if the outsider arrived at it independently. (A patent, remember, does allow a company to stop such use.)

While trade secrets are essentially for protecting internal matters, they can often be used in advertising to convey to the public your company's exclusivity in a certain product or service. Cosmetic ads often sell products made by "secret formulas" and many kinds of foods are allegedly made by "secret recipes."

Basic requirements to preserve trade secret rights: Trade secrets can be protected indefinitely (as, for example, the Coca-Cola formula has been for nearly 100 years) by following two basic rules:

1. Before anyone is given access to any trade secret, that person should sign an agreement that he will keep it secret. Employees and hired outside consultants have a duty not to reveal trade secrets. The laws governing such duties are not always clear, especially as they apply to employees after they leave the company. So to preserve rights to trade secrets, employees and hired outside consultants should be asked to sign a secrecy agreement at the beginning of their employment. Such agreements will be especially helpful to stop other companies from using your secrets if they become aware of them without authorization.

2. Have a sensible in-house control procedure that, for example, keeps secret documents in a secure place, prohibits outside visitors from access to places where trade secrets are visible, and educates empoloyees on the importance of maintaining secrecy.

For additional information on: Patent and Trademarks: Write to the Supt. of Documents, United States Government Printing Office,

Washington, DC 20402, for: General Information Concerning Patents ($2.25)

General Information Concerning Trademarks ($1.70)

Copyrights: Write to the Copyright Office, Library of Congress,

Washington, DC 20559 for: "Circular RI -- Copyright Basics" (no charge)

Unfair Competition and Trade Secrets: See these extensive works available at most law libraries: Roger M. Milgrim, Trade Secrets, Matthew Bender, 1980.

J. Thomas McCarthy, Trademarks and Unfair Competition, The Lawyers Cooperative Publishing Co., 1973.

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