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Understanding Intellectual Property Law and How it Can Protect Your Online Business

by NicoleD, Former Moderator

  • Created: July 10, 2009, 12:38 pm
  • Updated: February 17, 2011, 12:39 pm
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8 comments

Understandably, small business owners voice confusion over intellectual property law (patents,trademarks, and copyrights). Matters can get even trickier for online businesses, because the Web is still a relatively new territory for many entrepreneurs and law makers alike. Protecting your Web site's content isn't required by U.S. law, but doing so can provide important benefits. Read on to learn more about the eligibility requirements for patent, trademark, and copyright protection of online businesses. 

Understanding the Basics
Many small business owners are not aware of the basic (offline)intellectual property protection available to them. Here's a quick summary of the basics to help you get started before we move on to how you can protect your online content. 

Can I Patent my Website?
In a measure to protect market competition, U.S.patent law does not allow citizens to patent Web-based business concepts. So, for example, if you had an idea to start an online business that sold skincare products, you would not be issued a patent for that business concept, since a patent could block other online businesses from selling skincare products, and would hand you a monopoly on the market. However, if you invent anew skincare technology, or improved existing technology for a new use, that product could be eligible for a patent. 
Read more about how to register for a patent here. Even if your Web-based business concept isn't eligible for a patent you may stillbe able to pursue other options to protect your work, including trademarks,copyrights, or trade secrets. 

Can I Trademark my Web site?
Another option to consider when seeking to protect your Web-based business interests, is protection under trademark law. A trademark will protect the words,names, symbols, sounds, or colors that distinguish your goods and services from those manufactured or sold by others. By nature, Web pages cannot distinctively identify goods or services like a logo or brand name could, so Web pages themselves would not be eligible for a trademark. Trademark law is still a valuable asset to an online business owner because you can apply for protection under a trade dress.
A trade dress protects a product's design, product packaging, color, or other distinguishing non-functional elements of appearance. Trade dresses have a broad application and can be met through the following criteria:

  • Is the work inherently unique - or - has it become distinctive over time so that it is widely recognizable to the public?
  • Would attempts to mimic the work create confusion - to the point of misleading the public - of the work's true ownership?
  • Is the work non-functional? (Exclusive rights of functional work would create unfair competition in the marketplace, like in the online skincare business above.) The key point for Web site owners is the functional characteristics of hyperlinks, which are ineligible because protection would prevent competitors from linking them.

Can I Copyright my Web Site? 
Online works, such as Web sites, are eligible to register "copyrightable content," which excludes any work that was previously registered or exists in the public domain. Certain provisions apply, for example, computer programs and databases are usually not eligible. Instead of copyrighting the Web site in its entirety, a copyright may still be appropriate if your site contains original writing, music, photography, art, or other works that are eligible for protection under copyright law. Get more information about intellectual property protection, including FAQs and details on how to register, from Business.gov's Patent, Copyright, and Trademark Guide .

Message Edited by NicoleD on 07-16-2009 11:38 AM

Tags: Community Blogs, Business Law Advisor

Comments

woodencrates | Creator | 9/10/2010 - 6:58 am

It may not be relevant to small businesses but there's a point here that's not entirely accurate. Processes that are controlled through software and that result in a unique provable experience can be patened. A famous such patent is Amazon's 1-click: en.wikipedia.org/wiki/1-Click The reason this may not be relevant here is because it would be much more difficult now, in the later years of the Internet, to prove that such a process is unique and has never been implemented.
Professional Web Site: http://www.woodencrates.org

alensmits2010 | Performer | 9/3/2010 - 8:39 am

Good posting. I wonder whether and where one could check what web sites are already protected without hiring a lawyer.
Professional Web Site: http://www.articlealley.com/

alensmits2010 | Performer | 9/3/2010 - 8:39 am

Good posting. I wonder whether and where one could check what web sites are already protected without hiring a lawyer.

forestwander | Window Shopper | 7/28/2010 - 7:18 am

Copyright and the DMCA are critical to protect the intellectual rights on a website. Scraping and copying websites is a real problem because people are so lazy and do not want to take the time to write their own content. My website offers all of my nature pictures for free according to my copyright terms. One of the ways I protect my images and photography work, is using a creative commons license and stipulate that the images can be used however or even changed but I must be credited for my work. This is a very valuable way to protect your work, share with others which in turn creates a greater expsoure for your work and products.

forestwander | Window Shopper | 7/28/2010 - 7:18 am

Copyright and the DMCA are critical to protect the intellectual rights on a website. Scraping and copying websites is a real problem because people are so lazy and do not want to take the time to write their own content. My website offers all of my nature pictures for free according to my copyright terms. One of the ways I protect my images and photography work, is using a creative commons license and stipulate that the images can be used however or even changed but I must be credited for my work. This is a very valuable way to protect your work, share with others which in turn creates a greater expsoure for your work and products.

website | Window Shopper | 8/29/2009 - 1:04 pm

It is my understanding that copyright protection is is somewhat automatic and not dependant upon the official registration of copyright. It seems that the actual strength of a copyright is subject to your willingness and ability to defend it. In other words if you as a small business owner were to produce copyrightable content and an international conglomerate were to infringe upon your rights. Would it make much difference from a practical standpoint if you have a registered copyright or not? Bill Fletcher Orange County Website Design Message Edited by NicoleD on 09-30-2009 12:09 PM

sbbarca | Contributor | 8/2/2009 - 5:08 pm

One of the things that should be understood about intellectual property and websites is that there is a lot of overlap between the main pillars of intellectual property: patents, trademarks, and copyrights. For instance, with a website, it may be possible that a website may have intellectual property rights in each area of law, namely patents, trademarks, and copyrights (although unlikely). A website which uses a consistent use of a combination of colors (for instance black and yellow) throughout their website, on their letterheads, on their products, etc. may have some trademark rights in the use of those colors. (Please don't construe this to mean that owner would have EXCLUSIVE rights in that color combination, rather, that would be a possible TM right in a certain market. Of course, their logos, word mark, etc. would also create various trademark rights as well. The text, articles, arrangement of various images and sounds of a website may also create Copyright rights as well. It should also be noted here that software such as source code and object code does come under copyright law. And it should also be noted that a copyright registration is not absolutely necessary. Copyrights, as well as trademark rights are created upon first use or creation and are not dependent upon an official registration, although it is highly recommended for many reasons. And patent law can be extended to websites which offer new, non-obvious, and useful methods. As mentioned above, the Jeff Bezos, Amazon patent is one example. That particular patent was probably improperly issue due to serious obviousness concerns which may run afoul of USC 103. Los Angeles Patent Attorney Message Edited by NicoleD on 09-30-2009 12:09 PM
Professional Web Site: http://www.socalpatent.com/

NicoleD | Former Moderator | 7/15/2009 - 10:51 am

woodencrates - Thanks so much for your clarifying the point that new technology may be patented if can pass the strict approval process. Your example is very helpful! Message Edited by NicoleD on 07-15-2009 10:52 AM