Intellectual Property and Infringement: What Online Entrepreneurs Need to Know
Apr 06, 2020
Business owners these days can't afford NOT to protect their biggest assets. And in order to protect those big assets (insert funny 🍑 joke here), you first have to understand them.
But the law is pretty complicated. And one of the most complicated parts of business law is this thing called "intellectual property."
"But what exactly IS intellectual property?"
As a business lawyer, I've helped thousands of entrepreneurs get clarity around this question.
So if you've asked this question before, you are FAR FROM alone, my friend.
The reality is ... most business owners don't really understand what "intellectual property rights" are.
And the rest just nod along to hide the fact that they don't know either.
So that's what we're gonna solve in this blog post.
After reading this, you'll discover what's really going on with these "intellectual property" rights. And once we better understand what these rights are, we can get clarity on what it means to infringe on those rights.
So let's do this!
What is intellectual property?
First things first. Let's get our terms straight here.
Intellectual property is sometimes shortened to "IP" by lawyers, entrepreneurs, and people who like abbreviations.
(Tom Haverford from Parks & Rec would make a great IP lawyer.)
IP is an umbrella of different kinds of rights that mostly include the following ...
- Trademarks: protect what lawyers call "source identifications." (When you hear "Hakuna Matata," you think Lion King, and so you assume (correctly) that it's owned by Disney.) Trademarks protect brands, business names, slogans, podcast titles, logos, designs, and a bunch of other things.
- Copyrights: protect original textual works and visual or artistic expressions. (This blog post is protected by copyright.)
- Patents: protect new, useful, and non-obvious inventions. (Think Shark Tank). Examples of inventions include devices, structures, processes, machinery, and so on.
- Trade Secrets: protect a business's valuable secret information like ideas that must be kept confidential. (The secret recipe of Krabby Patties in SpongeBob.) If you signed an NDA, or if there was a confidentiality agreement in a contract or Terms of Use you agreed to, they you may be required to keep trade secrets, well, .. a secret.
NOTE: In addition to intellectual property rights, you may also be constrained by certain contract language. Some clauses in contracts claim and enforce your intellectual property rights (see above) while other clauses can create or extend protections/limitations beyond those rights (such as non-disclosure, non-compete, license, and confidentiality clauses).
What's NOT intellectual property?
As you can see above, intellectual property assets must be in a fixed or tangible form to exist as intellectual property rights.
In other words ...
- The content of a book or online course is copyright material, but the concepts inside them are not.
- The title of a signature framework or method is a trademark, but the underlying framework or method itself is not.
BUUUT ... be careful. If you signed a contract addressing non-disclosure/non-compete/
What counts as intellectual property infringement, exactly?
This is a great question to ask yourself as a business owner. So if you've made it this far, way to go!!
While the answer isn't as black and white as most people would like, it's absolutely critical for entrepreneurs to understand the basics here.
Infringement of intellectual property can come in different forms. Such as ...
- Patent infringement — the act of making, using, selling, or offering to sell a patented invention without the permission of the patent owner
- Copyright infringement — the unauthorized use, reproduction, distribution, display, or performance of a protected work
- Trademark infringement — the unauthorized use of a trademark — or something confusingly similar
"Wait, hold up. I was following until that last part. What do you mean with this "or something confusingly similar" bit?"
(Whaaat?)
That's right. This extra wrinkle is what makes trademark infringement such a gray area.
Imagine this ...
Let's say you want to build a brand called "The Leveled Up Entrepreneur." And because you're a smart & savvy entrepreneur, you want to create a lot of assets around this. Like ...
- a website
- social media pages & profiles
- some 1-1 services
- a podcast
- an online course
- maybe a book one day
- ... and so on
And so you head over to GoDaddy or some other domain service and — woohoo — the domain is available!
You look on Facebook, Instagram, iTunes — the phrase hasn't been taken yet. Phew!
Heck, you even run a quick trademark search, and no one has trademarked that exact phrase.
Well, don't get too excited!!
Most business owners stop there, assume they're safe, and then go nuts building a brand around that phrase.
Turns out, that's actually a super dangerous thing to do. Want to know why?
You guessed it — because of this "or something confusingly similar" thing!
When a business registers their trademark with the U.S. government, that business gets VERY strong brand protections.
And yes, if you were ever confused by that little ® symbol, it means that it's a U.S. registered trademark.
When you've got a registered trademark, you get NATIONWIDE exclusive rights to that trademark.
But your exclusive rights are not limited to just that trademark specifically.
You also get exclusive rights to — you guessed it — anything confusingly similar to your trademark!
This broad trademark protection is awesome if you own a registered trademark.
But if your trademarks aren't registered, these broad protections can cause you a lot of headaches.
(Watch out!)
Let's go back to our "The Leveled Up Entrepreneur" example. If you just did your little brand audit we outlined above, you might think you're all good.
But what about when you search the trademark database ... and find over 200 applications that include "LEVEL UP"?
(Yikes.)
Here's the thing.
Even though the exact phrase "The Leveled Up Entrepreneur" may not be "taken" so to speak, is it too similar to one of these other trademarks?
Maybe. (Probably.)
This is why conversations around trademarks and infringement is particularly tricky.
What's the difference between infringement and inspiration?
Okay, let's move beyond trademarks. What about copyrights?
How can you tell infringement from inspiration?
After all, aren't all entrepreneurs just recreating what we've learned/seen/experienced and putting our own spin on it?
Well, the line between inspiration and infringement often depends on the situation. It's definitely not black and white.
Let's say you're inspired by a copyrighted work, like an online course you bought. If you decide to create a program that is similar in content, you had better be careful that it is sufficiently different from the original, especially if you intend to monetize it.
In other words ... if some key elements of your content and/or branding substantially resembles elements of an earlier work that you were aware of, and have therefore drawn inspiration from, then you could be accused of infringement.
One last thing: what's your real concern here?
Lots of business owners make the mistake of stopping their analysis on what is and is not infringement.
It's important to think beyond the technical legalities ... and think practically. What can you do to minimize being accused of infringement, regardless of the merits?
Accusations themselves result in significant time and effort to resolve.
And now you know a what's up with this whole "intellectual property" thing!
(Queue the happy dance!)
Don't procrastinate on your trademark protections
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