The four main types of intellectual property rights are generally patents, trademarks, copyrights, and trade secrets.
Patents provide the inventor the exclusive right to make, have made, sell, offer for sale, use and import an invention. There are three types of patents in the US: (i) utility patents, which cover novel, useful and non-obvious products or processes, (ii) design patents, which cover ornamental designs, and (iii) plant patents, which cover certain engineered plants. Utility and plant patents generally run for 20 years from the application date, and design patents generally run for 14 years from the application date. To obtain a patent, you must file an application with the United States Patent and Trademark Office and prosecute the application in accordance with applicable requirements (e.g., payment of fees) until a patent is granted.
Trademark rights provide the owner with a right to sue a third party that uses trademarks that are confusingly similar to the owner’s trademarks (or that dilute the owner’s trademarks, where the owner’s trademarks are “famous” under applicable U.S. trademark law). Trademarks generally include distinctive words, phrases, symbols, designs, logos, sounds and other indicators that are used to identify the source of products or services (e.g., Nike’s “swoosh” and McDonald’s “golden arches”). In the US, trademark rights can be protected through filing an application with the appropriate state or federal governmental authority and then prosecuting those applications until a registration is issued. Trademark rights are also protected under the “common law” in the U.S. (i.e., through principles set forth in court decisions). Registering a trademark provides the trademark owner with certain advantages over relying solely on common law trademark protection (e.g., registration at the federal level with the United States Patent and Trademark Office provides the trademark owner with nationwide protection over its marks and a presumption that those marks are valid). Trademark rights generally run for as long as a trademark serves the purpose of identifying the source of a product or service, but federally registered marks in the U.S. have a 10-year term (with unlimited additional 10-year renewal terms).
Copyrights provide authors the exclusive rights to reproduce, create derivative works of, distribute, publicly display and publicly perform original works of authorship fixed in a tangible medium. Original works of authorship includes things like photographs, artwork, software, music and other expressive works, and a tangible medium means any medium you can touch (e.g., paper) as well as storage in a digital format (e.g., on a computer’s hard drive). Copyrights arise automatically under U.S. federal law, but registration at the federal level must be obtained to enforce copyrights and to recover certain types of remedies. The term of a copyright will depend on the type of work and when it was created, but copyright protection generally ranges between 70 and 120 years.
Trade secret rights provide the holder of a trade secret with the right to sue another for trade secret misappropriation (e.g., obtaining and/or using a trade secret based on violations of law or breaches of contract). Trade secrets generally include (i) any information not generally known to the public, (ii) that is subject to at least reasonable efforts to maintain its confidentiality, and (iii) that confers some type of economic value to the holder by virtue of its confidentiality (e.g., Coca-Cola’s recipe, Google’s search algorithm, confidential client lists and know-how). Trade secret protection arises under both state and federal law in the U.S. automatically and does not require the filing of an application with any governmental authority. Trade secret protection generally runs for as long as the applicable information remains secret and subject to at least reasonable efforts to maintain its secrecy.