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Smart Business Practices

By adopting smart business practices – which are inexpensive -- you can prevent many problems.

For example:

• Mark "Confidential" on important documents,
  
  
• Use Nondisclosure Agreements,
  
  
• Put Copyright notices on your works,
  
  
• Put ™ by your product or service name or logo,
  
  
• Require employees to sign confidentiality and non-solicitation agreements,
  
  
• Require suppliers or vendors to sign confidentiality agreements,
  
  
• Require independent contractors to sign agreements that say “work for hire” and assign rights in work product, and/or
  
  
• Keep important information secret.

It’s also important to take advantage of legal protections.

Legal Protections

By taking advantage of legal protections – which include Trade Secret, Patent, Trademark, Trade Dress, and Copyright – you enhance your ability to defeat copycats.

• Trade Secret
  
  Trade Secrets are legally recognized as long as you take careful steps to keep the secret. Secrecy works in some circumstances, such as the formula for Coca-Cola.
  
  For many businesses, secrecy is not a workable option.
  
  
• Patent
  
  If your idea is 'novel and unobvious,' it could be patentable. Patents grant exclusive rights for 20 years in exchange for complete disclosure or description of the invention. This means that you can stop others from making, using or selling products or technologies that use the patented invention. Or, you can 'license' (grant rights to use) the patent for royalties. Obtaining a patent is an expensive process. It’s wise to carefully evaluate the commercial potential of your idea before investing in a patent application.
  
  
• Trademark
  
  Protects any word, name, symbol, sound or combination used to identify your goods or services and distinguish them from the goods or services of others (e.g., 'Xerox' is a trademark and 'Greyhound' is a service mark for transportation services).
  
  While registration is not required to establish rights, there are significant benefits to registration. The owner of the registered trademark is PRESUMED to be the owner and entitled to use the mark. You can use a ™ without registration. However, you can only use the circle r ® after registration has been approved.
  
  
• Trade Dress
  
  Trade dress applies to the “total image and overall appearance” that distinguishes a product or service offering. To be protected, trade dress must be “non-functional,” which means that it must be separate from the product or service. It must also be unusual and memorable.
  
  Trade dress covers the “distinctive packaging,” the “look and feel.” Hence, it is broader in scope than Trademark protection. Trade dress can include the design, size, shape, color, color combinations, graphics and texture.
  
  Trade/service mark protection covers any word, phrase, name, symbol, sound … that identifies or distinguishes the product or service from those made or sold by others.
  
  
• Copyright
  
  Copyright protects original works of authorship, including artistic or literary work (from music and poetry to movies and computer software), for the life of the creator plus 70 years.
  
  As with Trademarks, Copyright registration is not required to establish rights. However, registration is required to gain full enforcement of your rights.
  

Combining strategies

Combining legal and business strategies makes sense. Of course, all companies should use smart business practices tailored to their business.

Sometimes combining multiple legal strategies also makes sense. For example, a restaurant can use Trademark to protect its name and seek Trade dress to protect its “décor, menu, layout and style of service.” Restaurants with distinctive trade dress include McDonalds, Wendy’s and Fuddruckers.

Another example of a combination strategy is a software company which may seek Patent protection for the novel functionality and Copyright protection for the expression of the idea (the written code); Trademark to protect the name/brand, and Trade dress to protect the “look and feel of its graphical user interface.”

IBottom Line

It's important to take steps to protect your ideas and work product. With a disciplined approach including smart business practices and legal strategies, you can protect against copycats.

NOTE:  Information provided is intended as a broad, general overview, and is not legal advice.

© Copyright, 2009, Jean Sifleet. All rights reserved. Used with permission.

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About This Author:

Jean D. Sifleet, Esq. CPA, is the head of the Business Practice Group of Worcester-based law firm Hassett & Donnelly, PC. For practical information, check out Jean's articles and books which are featured on SmartFast.com.