Business owners must know how to brand. Today, with the proliferation of the Internet, successful entrepreneurs need customers to be familiar with their image. Brands, and other identity markers, differ from actual physical property that a business owns. They are a form of intellectual property, which is a legal concept that most people know exists but never really understand fully.

To help demystify intellectual property law for business owners, and others, here is an explanation of the subject, followed by three examples of specific types.

What are intellectual property laws?

This branch of law deals with the rules that protect rights to property that cannot be visible seen. Intellectual property differs from “real” property. Houses, cars, boats and computers are examples of real property. People can see and touch them. In contrast, intellectual property consists of things that society recognizes as existing, yet are impossible to physically handle.

Brand names, books, computer operating systems, songs, iconic symbols and inventions are all examples of intellectual property. Some, are physical items, yet it is the idea behind them, such as the story of a book, that the law covers.

• • Patents

Inventions are unique in that there is usually one person who is first in conceiving of the idea. Now, this fact does not preclude others from thinking about and creating a similar, if not the same, product. The two people may have no knowledge of the existence of one another. Human brains just have similar capacities to solve problems by inventing products. Nevertheless, one person did create the product first and, under the law, deserves his or her just reward.

To save the rights of the first inventor to the profits of their hard labor, there is the patent, a form of intellectual property. Inventors apply for a patent, issued by the government, to reserve exclusive ownership rights. The holder of a patent can choose to license out the use to others, including corporations for mass distribution of the invention.

• • Trademarks

Sometimes a company or individual business may want to prevent others from using the symbol that customers associate with them. The law refers to this unique identifier as a trademark, a symbol or name that the government allows one entity to use exclusively in its business affairs. Once a business registers a trademark, no other entity may employ it without expressed permission.

• • Copyrights

Original works of art, literature or music receive protection from illegal use or distribution under copyright law. In some cases, depending on the nation, copyrights expire. These rights keep others from claiming, as their own, the creative works of the entitled party, even if unintentionally.

The Value of Intellectual Property Laws

Without intellectual property laws it would be impossible for businesses to protect their financial interests in ideas, symbols and names. The laws prevent others from benefiting from the hard work of creative types. Society benefits as a whole because those who find solutions to problems that make life better, or more beautiful, feel free to do so. They know that no future business can come along and make use of the idea, without first paying them for permission.

A trademark is a unique or distinctive sign of origin or authenticity that identifies a product or service as coming from a specific manufacturer or service provider. The trademark allows the product or services to be distinguished from those of a competitor. It might also be called a service mark.

What Makes a Trademark?

A trademark can be a brand name. Included as trademarks by the U.S. Patent and Trademark Office are words, names, symbols or any combination of them that are intended to distinguish and indicate the source of certain goods and services from those of competitors. Think of a Campbell’s Soup label. The specific cursive writing of the name of the maker of the product with the red background operates as a trademark. We don’t have to pick the can up and read the fine print on the back to know that it’s Campbell’s Soup. Think of the Nike “swoosh” on a pair of shoes or a shirt. That’s a trademark too. Trademarks are acquired by using them, not by registering them, but registering a trademark enhances the owner’s rights.

What Trademarks Are Used For

Trademarks are used to claim, protect or enforce specific proprietary rights of goods and services. Trademarks can have tremendous monetary value because of the products or services that stand behind them. Apple has the world’s most valuable trademark. Google and Coca Cola are right behind it. Products of all of these businesses are identified by their trademarks in highly specific manners. By identifying these products and services through their trademarks there is no likelihood of confusing them with those of competitors.

Trademarks vs. Copyrights

A trademark is an insignia, stamp or symbol that specifically identifies where certain goods or services originated from. Copyrights provide an entirely different form of protection that’s focused on original creative works like literary works, music, theater, paintings, sculptures or even dance and pantomimes. A copyright doesn’t protect the name or title of a creative work, nor does it protect any symbols or logos one might use to promote the work. It protects the creative work itself. Like a trademark, a copyright isn’t required to be registered either, but registration enhances the copyright owner’s rights.

How Trademarks Are Protected

If a person or entity owns a trademark, they’re permitted to sue an infringer. Infringement is caused when a likelihood of confusion has arisen as to the source of the goods or services. Courts will look at a variety of factors in an infringement suit to determine whether a likelihood of confusion has arisen. Those include but aren’t limited to the strength of a trademark, the similarity of the marks and the alleged infringer’s intent. Products or services that can amicably exist with each other involve completely dissimilar products like Apple Computers and Apple Records.

Notwithstanding the fact that registration of a trademark isn’t required for protection, registration does avail the owner to specific legal benefits. It provides constructive notice to all of the United States of ownership of the trademark. After five years, the trademark becomes incontestable so long as it’s properly maintained. Trademarking permits an infringement action to be brought in federal court where treble damages, attorneys fees and costs can be awarded.

It seems like everyone knows what mediation is like. Within a mediation case, there is the plaintiff with lawyer, the defendant with lawyer, and the mediator who stands between them. Most people think that mediation is where disputes are resolved, through discussion of the issues between the parties, through the mediator. There is, in fact, a joint meeting session to start the day. But I have never seen it resolve the issues. Typically, people just say what’s strong about their case.

In practice, there is little to no attempt to resolve disputes throughout the mediation. Mediation is an all-day negotiation session, in an attempt to arrive at a settlement. Some mediators try to point out the strengths of the other party’s case. However, the party and his/her lawyer have already evaluated the strength of each party’s case, before the mediation commences. A good lawyer will also help her/his client determine the party’s bottom line, as to how low they are willing to go, to reach a settlement. A good lawyer will also advise his/her client that negotiation can continue, through the lawyers, even if a settlement is not reached during the mediation.

It would seem that the mediation would end within a few hours. However, it is not uncommon for the settlement negotiation to take all day. The time-consumer may be when the party and her/his lawyer discuss, all alone, what size of offer the party wants to make next.

There is pressure from the mediator, and the other party, to settle on the day of mediation, and sign a settlement agreement. That’s why you are present at the mediation, to make a binding settlement. Courts also pressure settlement through mediation. Indeed, in most counties, such as Travis, mediation is required, before trial.

And the mediation system works, for the parties who really are interested in reaching a settlement, and therefore are willing to substantially discount what they have requested in the suit. In the past, the parties’ lawyers negotiated settlements between themselves. But with mediation, many more suits are settled.