KNOW YOUR INTELLECTUAL PROPERTY RIGHTS

In these uncertain times I am inspired by the Black Lives Matter movement and its push for our people to know our rights.  The statement, “Know Your Rights” is often assumed to mean the criminal portion of  U.S. Constitution. However, as a Black business lawyer who works in both the real property and intellectual property law, I know specifically the importance knowing your intellectual property rights. Like criminal procedure, intellectual property rights are written directly into the U.S. Constitution.  This is of particular significance for Black Americans, since intellectual property creation is dominated by Black Americans’ creativity. Unfortunately, intellectual property law knowledge isn’t widespread and thus Black American’s dominance in creating the culture is not simultaneously registered and owned by us; even though we are the creators. So in the spirit of helping others know their rights, below are 4 ways, to use intellectual property law, to own the culture we create.

1. Copyright. Copyright is a constitutional right to own creations that are original and fixed in a tangible medium. Examples of creations that can be copyrighted are paintings, graphic designs, music, books, this article etc. Copyright ownership is automatic after creation, however, you do not get to enforce your rights until you file for registration. To register, all you have to do, is go to the copyright.gov website and fill out a form showing you are the person that created the work, submit the form, and you will be granted full ownership of your creation. Depending on what you created, the filing fee can be as low as $65. With that copyright ownership, you own the display, use, performance and any variations of your creation. Copyright is the cheapest registration and potentially the most powerful tool. Once you register your copyright to your creation, you can license out use of your work. Like owning a building and leasing it out to tenants; you can charge per use, and any use of your creation without your permission (other than fair use) is statutory infringement. That means infringers will owe you money. Not bad for a $65 investment.

• Trademark.  Federal trademark registration and maintenance is more expensive than copyright. However, if you have the capital, use it. Federal trademark registration gives the registrant exclusive rights to use its trademark(i.e. logo, slogan, brand name) in interstate commerce to identify its product or service in a specific market nationwide.  Even further, if anyone tries to use a trademark that is even similar to your registered trademark for the services or products you provide, you can sue for trademark infringement. For example, if you try to sell sneakers with the name Noke, Nike’s attorneys will shut you down with the quickness.  You can file for trademark registration at the U.S. Patent and Trademark Office at uspto.gov. Depending on how may services or products your trademark will identify, a trademark registration can cost up to $1K. That is not including the attorney’s fees you will need to incur to have your trademark registered.  While the startup costs for trademarks are steep think about the market power in just the name Nike or McDonalds. That could be your business’s power. They have built their brands not only through promotion, marketing, and commercials; they built their brands by filing federal trademark registrations and taking people to court if they come too close. Instead of flexing Nike’s on the gram, a real flex is being able to build a large trademark portfolio to help legally protect your brand.

• Patent. While you’re at the U.S. Patent and Trademark Office,(or uspto.gov) stop by patent wing. Patents are by far the most expensive intellectual property and the most powerful. Patents are for scientific, technological. and at times design based inventions. If you invent a new and nonobvious product, process, or innovative improvement on a product or process, you can file a patent application and prevent ANYONE from selling that product or using that process for 14 years. That means you can dominate a market for 14 years, and anyone who infringes your patent will owe YOU money. That said, the patent application process can cost over $50k. However, the investment, depending on your business plan, can turn out to be more than worth it. You can even sell you patent to companies who have the capacity to distribute your invention and walk away with pure profit without the hassle of running a business. Wakanda Forever.

• Trade Secrets.  While patents are the most expensive, trade secrets are the most difficult rights to keep and protect because it depends on secrecy.  A trade secret is a business idea, plan, or process, that has commercial value and is kept secret on a strictly need to know basis. Many trade secret battles depend not on whether the plan or process has commercial value, but whether the business took enough steps to keep that plan or process secret. Courts will ask whether the company’s leaders treated that trade secret like it had the value they are alleging it has. For example, if a company knows it has found a pricing structure that gives it a competitive edge over the market, that company must keep that pricing structure secret and limit access to the pricing structure’s breakdown. Therefore if anyone else leaves the company, and gives that pricing structure to a competitor, the original company can sue for theft of a trade secret. This is huge and should not be overlooked. A trade secret empowers a company to sue for theft of an idea. Therefore a company can own the plans, processes, and ideas that make the business work. There is no registration or filing fee. All the business has to do, to own ideas that make the business successful, is keep the secret. Literally, just stop telling all of your business.  

The above 4 intellectual property rights are powerful tools to completely owning your business and owning your creations, and ideas. Whether you are freelance graphic designer or a brick and mortar car wash business, knowing the above 4 intellectual property rights can add value to your already valuable creations. We talk often about knowing your rights when it comes to interactions with the police. It is also important to know your intellectual property rights. As an attorney, the above is common knowledge. But since I was blessed enough to be an Esquire, I thought I’d do my part spreading the word to help more Black Americans know our intellectual property rights!

THIS IS NOT LEGAL ADVICE, THIS IS JUST INFORMATION. I AM NOT YOUR ATTORNEY. GO GET AN ATTORNEY.