Making sure that you protect your business’ assets isn’t just about insuring against losses — it’s about protecting your intellectual property, as well.
And, in a digital age that includes social media channels and non-fungible tokens, ensuring 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 with Dickinson-Wright in Lexington, intellectual property breaks down into three categories: patents, trademarks and copyrights.
Patents cover how something works or the way it looks. Trademarks protect names and logos. Copyrights protect created content, like a book, image or a white paper.
Dorisio says owners need to trademark their business names and logos to protect their assets down the line. Most businesses determine whether a name is free and clear to use on a state level before using it. But if someone in another state is using the same name, you may run into problems without a trademark, he says.
Take the case of Lady Antebellum. In June 2020, the country band decided to change its name to Lady A due to racial unrest and apologize for the pain its name may have caused. Blues singer Anita White, who is Black, objected, saying that she’d been performing under the name “Lady A” for more than two decades. The country band sued White for the exclusive use of the name. White counter-sued for $10 million, saying the band’s use of the name she had previously used would cause her damage and lost sales.
In January 2021, the two parties settled the issue and filed paperwork in federal court to end their mutual lawsuits against one another. Terms of the agreement were not disclosed.
The court battle could have been prevented had either party had a trademark.
“Simply having the secretary of state in Kentucky clear your business name isn’t enough,” Dorisio says. “If the mark is clear, you should register it. It’s not cheap to do it, but it’s worth it.”
Changes in the digital world also make protecting content important, said Peter Rosene, an intellectual property attorney with the McBrayer Law Firm in Louisville. Rosene said it’s important to understand what copyright is and who owns it.
Copyright refers to anything that is created, like a blog post or a short video. Typically, he said, whoever creates the work owns the copyright to it.
But if a company enlists an influencer to create a video mentioning them, for example, they might be surprised to learn it’s the influencer who owns the right to that video.
“As a blanket rule, it’s always going to be the person who made the video or who took the photograph that owns the rights,” Rosene says. “But what you need to do then as a savvy business owner, you would need to realize that you’re not the content creator, therefore you do not legally own the copyright, and you need to have the content creator sign over their rights.”
This can be accomplished through a “work for hire” contract that lays out that you, as a business, have hired that person to create a distinct product for you and that they are as- signing all rights to you.
But, Rosene points out, protecting your intellectual property is a self-policing activity. It is up to the business to monitor its copyrighted material and ensure it is not being misused.
“Copyrighted material is only worth as much as your willingness to protect it,” he says. Patents protect how something works
and what it looks like, says Warren Schikli, an 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 exclude others from making the invention.”
Patents are a way of furthering innovation, he says, and were discussed in the Constitution in that vein.
Schikli says more businesses should protect themselves by registering trademarks and getting patents. One way of protecting intellectual property, however, is free.
Protecting trade secrets is nothing more than keeping it a 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. From only allowing a limited number of people to know the secret, to protecting the name of a supplier, to making sure that no one knows all the steps in a 12-step process, it’s possible to keep trade secrets without having to break the bank.
But registering trademarks and copyrights is the easiest way to protect intellectual property, he says.
“If you’ve got a business, get a good trademark on the name,” he says. “I think businesses should do a better job at protecting themselves.”