Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. Specific forms of IP include trademarks, patents, copyrights, and trade secrets. Each may be important to the direct farm business in that ownership gives the right to prevent others from doing certain activities without permission. For example, the owner of a trademark may stop a competitor from using a similar mark on another product. The trademark, however, does nothing to prevent the competitor from making or selling the same product. This would require another form of IP, a patent. Similarly, copyrights may prevent the printing and distribution of the same or similar content describing a product, but is of no help should another person write their own description of the same product. This article will describe the basic concepts of IP and how each type may apply in the direct farm business context.

Trademarks may be the most useful form of IP for the direct farm business as a trademark is used to distinguish goods and services from those manufactured or sold by others. A trademark can be a name, symbol, sound, or color. It is also possible to register the design, packaging, or other element of appearance so long as the element is both nonfunctional and distinctive. This is known as "trade dress."

It is the use of the mark that makes it a trademark. To be valid, the trademark needs to appear on the goods, their container, or on the displays associated with the goods. Federal registration of a trademark is through the United States Patent and Trademark Office (USPTO). The application requires a specimen, which is a real-world example of how the mark is actually used on goods.

By contrast, trade names are used to identify a person’s business or vocation. While there may be some overlap between trade names and trademarks, if a name is used only as a trade name it may not be registered with the USPTO. Courts have held, however, that a trade name may have trademark protection if the business adopts a stylized font and other design features that would set the name apart from regular text.¹

An initial step is selecting the mark you will use for your business.  The Franklin Pierce Law Center maintains helpful information on the importance of selecting a good mark. 

In order to be registered and enforceable, trademarks may not be generic or highly descriptive terms. The idea is that a phrase or slogan commonly used to refer to a category of product or that merely describes or praises the product is incapable of being distinctive enough to be used as a trademark. For example, an attempt to register the phrase "the best beer in America" as a trademark for Sam Adams Beer was rejected by the USPTO. This rejection was upheld on appeal in federal court since the phrase was too descriptive.² Similarly, a court rejected the trademark "Beef Stick" because the term merely described the kind of good and did not distinguish the manufacturer.³

Rights in trademarks are established by their use in commerce. While registration is not a requirement in order to obtain rights, it is very important for the enforcement of marks. Trademark registration is available at the state and federal level. State registration, although not as expensive or cumbersome as federal registration, offers much less protection. Information on Illinois registration can be found here, and a state-by-state list of trademark information is available here.

Federal registration gives notice of the claim of ownership, permits the owner to bring an action in federal court concerning the mark, and is needed for registration with the United States Customs and Border Protection (CBP) in order to stop the importation of infringing goods into the United States. The symbol for trademark, TM, may be used whenever rights are asserted, but the use of the federal registration symbol, ®, may only be used after a mark is registered with the USPTO (not while the application is pending). A trademark can be renewed so long as it is being used in commerce.

The USPTO provides additional information online and a general list of services can be found here. You can learn more about the federal application process here. Information is provided on both paper applications and on using the Trademark Electronic Application System. The USPTO also maintains a searchable online database of pending, registered, and expired (non-renewed) federal trademarks. Even more help is available by calling the USPTO Trademark Assistance Center’s toll-free number, 1-800-786-9199.

A patent grants the inventor the right to exclude others from making, using, or selling the invention in the United States or ‘importing’ the invention into the United States for a limited period, generally 20 years. In the United States, a patent is issued by the USPTO. To obtain a patent, an invention must be new, meaning that it was not known or used by others in the United States or "patented or described in a printed publication in a foreign country," and cannot be obvious. There are different kinds of patents available. Utility patents are used for the improvement or new invention of a process, machine, article of manufacture, or compositions of matters. Design patents are for new, original, and ornamental designs for an article of manufacture. Plant patents are also available to one who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. For example, there is a plant patent for a new variety of sugarcane, identified as "L99-233," that is said to have superior sugarcane rust disease resistance, excellent ratooning ability, and high sugar/sucrose content and cane yield characteristics. Grant of a plant patent precludes others from asexually reproducing or selling or using the patented plant for 20 years from the filing of the patent application.

The process of obtaining a patent can be long, expensive, and cumbersome for a new direct farm business. An attorney generally should be used to secure invention rights. A general explanation of the costs involved - including government fees, hiring an attorney, and drawing sketches - is available from this weblog. A cost-benefit analysis of patents generally can be found here. General information on patents is available from the USPTO here. Searching the USPTO’s online database of patents is a good, free place to start to learn if your invention already has a patent before taking any formal steps. The USPTO also maintains an online database of patent attorneys and agents and a geographical listing, such as this one for Illinois.

A copyright protects "original works of authorship fixed in any tangible medium of expression." Although literary works come easily to mind as examples of copyrighted material, in the direct farm business context, copyright protection could extend to categories such as pictures and graphics, sound recordings, movies, and on other information related to the direct farm business operation. A copyright does not protect the actual ideas or methods, but rather it gives the owner certain exclusive rights to the way the copyrighted work is used. For example, in many circumstances a copyright owner has the exclusive right to reproduce the work, to make derivative works, and to display the work publicly. The owner also has the exclusive right to authorize others to do the same. Pictures of growing crops or a farmers market used on the direct farm business website or promotional material would qualify for copyright protection. On the other hand, the unpermitted use of another’s pictures (perhaps copied from the internet) may mean that you are infringing on the copyrights of another.

A work does not have to be published or even registered with the Copyright Office to gain protection. Copyrights attach once a work is "created," meaning it has been fixed in a tangible medium of expression such as a copy or recording. Even so, registration is important for providing a public record of the copyright claim. Registration also provides significant advantages regarding the enforcement of rights in courts and with CBP. Step-by-step registration instructions can be found online from the United States Copyright Office here. Other information on copyrights, including a searchable database of registrations and up-to-date fee information, can be found here.

A trade secret is information companies make an effort to keep secret in order to give them an advantage over their competitors. Unlike other forms of intellectual property, there is no federal regulation of trade secrets. Even so, most states, including Illinois, have now adopted statutes modeled after the Uniform Trade Secrets Act. Enforceability generally relies on showing two things: (1) that the information had been secret enough to give a competitive advantage and (2) that measures were taken to keep others from obtaining or using the information. Although the agriculture community has traditionally shared innovation, there may be certain trade secrets that provide the direct farm business an important commercial advantage that should be protected. Typical examples could include a list of regular customers built up over time, a special recipe for apple preserves, or a secret fertilizer method for growing the best vegetables. In such cases the employer should require employees to sign non-disclosure agreements and/or non-compete agreements. A typical non-disclosure agreement includes a definition of the confidential information, any exclusion from confidential information, the obligations of the employee to not disclose the information, and a time period for former employee’s to maintain the secret. An attorney may be helpful in drafting a proper (enforceable) non-disclosure agreement.

Although perhaps not relevant for most direct farm businesses, information is available from the World Intellectual Property Organization (WIPO) and from the World Trade Organization (WTO) regarding international treaties and agreements applicable to different forms of IP protection for international commerce.

Footnotes:

¹ Book Craft, Inc. v. BookCrafters USA, Inc., 222 USPQ 724, 727 (TTAB 1984); In re Univar Corp., 20 USPQ2d 1865, 1869 (TTAB 1991).  The reporter in this case is United States Patents Quarterly ("USPQ").  The Bureau of National Affairs publishes the USPQ, which is a more comprehensive reporter of intellectual property cases than the official federal reporter. 

² In re Boston Beer Co. Ltd. P'ship, 198 F.3d 1370 (Fed. Cir.1999).

³ Hickory Farms, Inc. v. Snackmasters, Inc., 500 F.Supp.3d 789 (N.D. Ill. 2007).

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