The Complete Guide to Intellectual Property by LegalZoom Staff

The Complete Guide to Intellectual Property

Trademarks, copyrights, and patents can be powerful tools to protect your business and creative works, learn how in our complete guide.

by LegalZoom Staff
updated August 09, 2021 ·  11min read

Intellectual property has never been more important. It's often seen as the backbone of a business, protecting the ideas, innovations, and creativity that go into many of the world's top products and services.

This guide will help you understand what intellectual property is, what kind you might have, and what you need to do to protect it.

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What Is Intellectual Property?

Intellectual property (IP) refers to creations of the mind. Although it doesn't exist in a physical sense, you still claim it as your property just as you would a house, car, or boat. Along with that claim can come similar rights and protections as one would have with physical property ownership.

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Learn more about the different kinds of intellectual property and their protections in What Is Intellectual Property?

Soft Intellectual Property

Soft intellectual property is a term sometimes used to refer to copyrights, trademarks, and trade secrets.

Get a sense of what falls under this rather large umbrella in Understanding Soft Intellectual Property.

Trade Secrets

A trade secret refers to commercially valuable confidential information. It must be something that you take reasonable steps to keep secret and so valuable to your business that it's worth protecting.

Get a deeper understanding of trade secrets in What Is a Trade Secret?

Defining trade secrets is the first of many steps to protect them. You'll find the steps in Tips for Protecting Your Trade Secrets.

What Are Your Intellectual Property Rights?

Some common properties that fall under the IP banner are designs, artistic works, and brands. Once created, these original designs/works/brands become the creator's property, and the creator (now owner) has rights over their property.

Intellectual property rights prevent others from using your property without your permission.

Learn more in An Overview of Intellectual Property Rights.

How to Protect Intellectual Property

Different types of intellectual property fall into different categories, but all IP protections function by preventing others from using your property without your permission. To effectively protect your intellectual property, you'll need to determine what type of IP you have.

For an overview of IP protection, read How to Protect Your Intellectual Property.

Explore practical intellectual property protection in Three Things You Can Do to Protect Your Intellectual Property and How to Protect Your Intellectual Property Rights When Collaborating With Others.

Talking About Your Idea

It's hard to keep a great idea to yourself, but there is good reason to be careful who you tell, even in the early stages.

If your idea is for an invention and you don't have the resources or time to file for a formal patent, filing a provisional patent application might be a good option for you.

If you need to share your idea with someone to take it to the next level, you might consider having them sign a non-disclosure agreement (NDA).

Provisional patent applications and NDAs are covered in How to Talk About Your Nonpatented Invention Without Having Your Idea Stolen.

Using a Cease and Desist Letter

What can you do if you learn someone is stealing or using your intellectual property without permission? One available option is to write a cease and desist letter. You might not need an attorney to do it. The letter notifies the person of what they're doing with your property and what the consequences are.

Look into the most prevalent uses of a cease and desist letter by reading 4 Most Common Ways to Use a Cease and Desist Letter.

Common Types of Intellectual Property Protection

Most intellectual property can be protected under one of these three categories: patent, trademark, or copyright.

Generally speaking, copyright applies to an original creative work you've created. A patent can apply to an invention, and a trademark applies to a word, phrase, or design that distinguishes a brand.

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For detailed explanations of these three categories, read Finding the Right Fit: Comparing Intellectual Property Protections.

All About Copyright

According to the U.S. Copyright Office, copyright protects original works of authorship. That generally applies to artistic works, from novels to sculptures to symphonies, and even includes architecture and computer software in certain cases.

Learn more in Copyright Basics: What Is a Copyright and Why Is It Important?

For the ins and outs of registering your copyright with the U.S. Copyright Office, read Understanding the Copyright Registration Process.

All About Trademarks

Words, phrases, designs, or graphics can all be trademarks. They're also what distinguishes your goods or services from the crowd. You can gain federal trademark rights by registering your trademark with the U.S. Patent and Trademark Office (USPTO).

Learn more in What Is a Trademark?

Get some tips on safeguarding trademarks in Monitoring and Protecting Your Trademark.

Explore the value of trademarks in overall business strategy in Top 4 Reasons Why a Trademark Is Good for Business.

This infographic explains the basics of trademarks and why they're important.

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All About Patents

The patent process has been in place for centuries and is interwoven into the fabric of the United States.

You might be surprised to learn what kinds of inventions are eligible for patents and which types aren't.

For a big picture perspective on patents and their place in society and business, read The Reality of Protecting Your Company's Secrets.

Explore types of patent-eligible inventions in What Is a Patent and How to Use It.

Do You Need a Trademark, Copyright, or Patent?

Trademarks apply to distinguishing logos, brand names, phrases, and the like. Copyrights apply to original creative works. Patents generally protect new, useful, and non-obvious inventions.

Learn more about copyright and trademark protections in Trademark vs. Copyrights: Which One Is Right for You? and Copyright vs. Trademark: What's the Difference?

To understand the different types of patents and whether you should seek patent protection, read Do You Need a Patent? 4 Questions to Ask Yourself.

Do You Need an Attorney to Get a Trademark, Copyright, or Patent?

Getting certain intellectual property protections can sometimes be simple. Some protections actually exist upon creation and before you register your work. However, registration can greatly enhance the protections you have over your property.

In some cases, you'll want to engage an attorney to ensure that your IP is properly protected.

When to Get an Attorney for a Trademark

You can register your trademark online with the U.S. Patent and Trademark Office (USPTO). You can also search their site for any potential conflicts with existing registered trademarks.

Remember that if your trademark conflicts with an existing trademark, it could be rejected by the USPTO.

An attorney can advise you on how to navigate any potential conflicts. And you may want a lawyer to deal with any infringement issues, whether you are dealing with a case filed against you or enforcing your own trademark rights.

To determine if you need a lawyer for your trademark dealings, read When Do I Need a Trademark Lawyer?

If you're just starting the trademark process and wondering if your circumstances warrant hiring an attorney, read Do You Need a Lawyer to File a Trademark?

When to Get an Attorney for a Patent

While it's possible to write and file a patent yourself, it's often useful to have a lawyer involved. There could be elements of your invention—especially covering future modifications or expansions— that might be hard for you to see on your own.

Patent attorneys can save you a lot of headaches down the road. Some people like to file a provisional patent application themselves before drumming up investment and interest in their idea, and then hire an attorney to help with the formal patent application once they are ready.

To understand what patent attorneys do and whether you need one, read How Lawyers Help File Patent Applications and Do I Need a Patent Attorney?

When to Get an Attorney for a Copyright

A copyright isn't difficult to file on your own, but there are some situations in which it makes sense to consult an attorney. Read more about them in Do You Need an Attorney to File a Copyright?

Costs of Intellectual Property Protection

The fees for IP protection vary based on the type of protection you need and the nature of your filing.

The costs of securing IP protection might involve attorney fees as well. People most often engage attorneys for assistance with patents and trademarks. This will make your initial costs higher but can ultimately save you money in the long term. You should also factor in the fees associated with renewing trademark and patent protections over time.

Find out more in How Much Does a Patent Cost?

Learn about registration, renewal, and potential attorney costs for trademarks in How Much Does It Cost to Trademark a Business Name?

Intellectual Property Considerations for Specific Situations

Sometimes applying intellectual property protections to your specific situation can be confusing. There can be some overlap between trademark and copyright. And some unusual works, at first glance, seem to defy categorization.

Below you'll find tips for how to protect some specific works and categories:

Violation of Intellectual Property Rights

It can be tricky to distinguish the difference between influence and outright copying (or plagiarism). Intellectual property protections exist to help define these lines and to allow creators to protect their works and inventions.

If you receive a notice that you are infringing on someone else's intellectual property rights, it is wise not to ignore it. Investigate the validity of the claim and respond. There can be steep financial consequences for these infringements.

For insight into the difference between appropriating a copyrighted work and simply being influenced by it, read Appropriating Copyrighted Works: When Is It Legal?

For an overview of how copyright infringement plays out on social media, read Taking On Social Media's New Intellectual Property Challenges.

If you've received a copyright infringement notice, don't panic—read What to Do If You Get a Copyright Infringement Notice.

Transferring Intellectual Property

Intellectual property rights can be transferred, just like other types of property. It's common for employers to include agreements in employment contracts explicitly outlining that any inventions created in the employee's course of work are the employer's property.

If you're an employer or employee and wonder how the assignment of IP is commonly handled in this relationship, read Secure Your Intellectual Property Rights with an Intellectual Property Assignment Agreement.

Intellectual property should also be part of your estate plan. With the potential for generating decades of ongoing revenue, IP can be a valuable part of your estate. Learn more in Estate Plans and Intellectual Property: What to Consider.

Getting the Protection You Need

Intellectual Property designations and protections exist to protect and help creators reap the fruits of their labor.

Whether you've invented something amazing, written the next big literary sensation, or created your dream company's logo, protecting your creative work is the first step to ensuring you reap the benefits of your hard work.

Though getting the proper protection for your intellectual property can take some legwork, it's worth it in the long run.

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About the Author

LegalZoom Staff

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This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.