I hear too often from business owners who’ve lost their brand name, their unique invention, or their artistic work because of one thing: a grave mistake in intellectual property.
Welcome to the first week of Spooky Season! I’m Julie King from King Patent Law, and this time of year, I love talking about the very real horrors of intellectual property gone wrong.
Today we’ll step into the graveyard of abandoned ideas, haunted by the ghosts of forgotten brands and the withered remains of failed inventions.
I’ll include a few examples of some real-life horrors.
The Trademark Tombstone
Our first stop in the IP graveyard is the Trademark Tombstone. Here lie the ghosts of failed brands. Some of them are victims of infringement. That can happen when you invest countless hours and thousands of dollars building a brand around a name or logo, only to get a terrifying correct letter from a lawyer telling you that you have to stop and maybe even demanding money damages. A proper trademark search is the first step to avoiding this nightmare.
Even if you don’t plan to apply to register your trademark, though you usually should, you need to make sure the name you want isn’t already claimed. I’ve lost count of how many times clients have come to me with names that even a quick Google search would have shown them were already taken.
That said, a quick Google search or a quick search in the USPTO database for identical marks are woefully insufficient for identifying marks that are too similar to the one you want to use. A professional search by a real trademark attorney, not some cheap online service, is what you need.
The long-standing legal battle between Apple Corps, the Beatles’ record company, and Apple Computer, the tech giant, is a legendary example of what can happen when trademarks collide. The two companies fought for decades over the use of the Apple name, and the disputes cost hundreds of millions to resolve. Apple was a great trademark for both companies, because it didn’t have anything to do with what they were selling or what they did. That can be the problem with a great trademark, though: it’s so great, more than one business wants to use it.
This dispute shows that a simple, common word can cause a legal horror show if two different businesses don’t properly define their rights or don’t respect the rights of other businesses. Long and expensive disputes don’t only happen to tech giants and rock legends. They happen all the time to small businesses with great ideas but a trademark that’s already in use. What’s more horrific about that is that small businesses don’t usually have the budget for expensive litigation or settlements for infringement.
The Copyright Crypt
Next, we’ll move down the graveyard path to the Copyright Crypt. This is where artistic creations get buried alive. Many people believe that simply creating something gives them all the protection they need. While it’s technically true that you have some copyright rights the instant you create something, if you want to sue an infringer, you need to register your copyright first, and you need to do that within a particular time. Without that registration, your work is like a ghost: it exists, but it lacks substance, leaving you without the best tools to enforce your rights.
We’ve seen this happen recently with authors who had their artwork scraped and used to train artificial intelligence models without their consent. Many of them found out that, despite publisher contracts saying the publisher would register the copyright, the publisher didn’t, which meant the authors couldn’t get as much money in the settlement as they could have if the copyrights had been registered.
The Patent Plot
Moving on to a very dark corner of the IP graveyard, we come across the Patent Plot full of inventions that had failed patent applications, never had enforceable patent rights, or turned out to be infringing on someone else’s patent. Those are serious horrors for any inventor.
Say you’ve got a brilliant, groundbreaking invention, like a new fake blood formula that will make running a seasonal haunted house less expensive and won’t stain visitors’ clothes. You’re so excited that you show it off to potential investors at a trade show or post details about it online. You might think you’re generating buzz, but you may actually be destroying your ability to get a patent.
In the U.S., if you publicly disclose your invention more than one year before you file a patent application, you can be barred from ever getting a patent. You’ve basically released your invention to the world, and there’s nothing you can do to stop others from using it. In some countries, you can’t make the invention public at all before filing a patent application. It’s a very real nightmare for inventors.
Even if you properly keep quiet about your invention and don’t blow any deadlines for filing a patent application, that application could already be dead on arrival without you knowing it. I don’t force clients to have a patentability search done. I advise them about the risks of not doing one, but sometimes they are so convinced they know about all the relevant technology in the field of the invention that they don’t think a search would be worth the expense. They’re almost always wrong.
Now, some inventors are true top experts in their fields, and their companies have the budget to gamble on their knowledge of the field. That’s not most small businesses, though. Having a patentability search done to make sure there won’t be almost certain problems with having your application be granted is an expense, but it can save you from wasting far more money on a doomed application.
Jostling for space next to the unpatentable inventions are the accidentally infringing inventions. They could have been saved with a patent search, too. Often a patentability search finds patents that already exist that would be infringed by all or part of the invention unless the inventor gets a license from the other inventor to use it or can buy the rights from them. A freedom-to-operate search is focused not on whether an invention will be able to be patented, but instead on whether all or part of the invention is infringing on any other existing patent rights.
The Trade Secret Tragedy
Finally, we have arrived at the memorial to the Trade Secret Tragedy. This kind of tragedy happens when a business has a unique formula, recipe, or process that gives them a competitive edge, but they don’t take the steps to protect it.
For example, a bakery might have a special recipe for their frosting that everyone loves. If they don’t have confidentiality agreements in place for their employees and don’t take care to keep that recipe a secret, they could lose their most valuable asset. The secret to Coca-Cola’s famous formula is a great example of a well-protected trade secret, but you don’t have to be a multi-billion-dollar corporation to have one. Your business might have a process, technique, or formula that needs to be protected, too.
How to Avoid Grave Mistakes with YOUR Intellectual Property
So, how do you avoid these grave mistakes? The answer is simple: with proactive legal strategy. Don’t wait until you’ve been bitten by a cease-and-desist letter, discovered a doppelganger version of your product on the market, or let your rights die from neglect. Get the right protection in place from the start.
In the coming weeks, we’ll dive deeper into each of these topics, from patenting paranormal inventions to trademarking horror-related brand identifiers.
Until then, don’t let your business become one of the residents of the intellectual property graveyard. There are four essential tools you can use to protect your creations and your business: patents, trademarks, copyrights, and trade secrets. Each one is a stake through the heart of potential legal problems, and you’ve got to know how to use them.
Don’t let your creative work or business become a horror story. Intellectual property is one of the most terrifyingly useful tools you have. If you’re a creator or other entrepreneur ready to build a frighteningly powerful brand and business, you need to know how to use it. You don’t have to face the darkness alone, though.
I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I’m an attorney in Champaign-Urbana, Illinois, but I serve intellectual property clients nationwide.
If you’d like to consult with me, you can book a consultation online at kingpatentlaw.com or by calling my office at 312-596-2222 or 217-714-8558.
Please check out the other frighteningly good posts and pages on this website for more information on intellectual property and business law issues. I’m also on most major podcast platforms as “Know Your Rights: Your Intellectual Property and Business Law Playbook” and on most social media as @kingpatentlaw.
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