№ AUSTTX
DS
Attorney
Derek Sullivan
Sullivan & Associates
Business LawIntellectual Property
- City
- Austin
Business Law · Sub-Practice
Intellectual Property for Businesses
For most modern businesses, intellectual property is the most valuable thing they own — and the least protected.
§ Overview
What your situation actually involves.
Trade secrets, brand identity, software, creative works, and inventions can all be protected — if the right steps are taken at the right time. Waiting until after a problem arises is the most expensive approach.
Business intellectual property falls into four main categories: trademarks (brand names, logos, slogans — federally registered with the USPTO to prevent confusingly similar use by competitors); copyrights (original creative works including software code, written content, design assets, and training data — protected automatically but registered for full enforcement rights); patents (inventions and novel processes — utility patents, design patents, and plant patents requiring USPTO application and examination); and trade secrets (confidential business information that derives value from being kept secret — customer lists, formulas, algorithms, manufacturing processes — protected through NDAs and confidentiality systems, not registration). Business IP attorneys advise on clearance searches before adopting new brands, trademark applications and maintenance, copyright registration, patent strategy and prosecution, trade secret protection protocols, licensing agreements, and IP enforcement against infringers.
§ Key considerations
- ▸Clearance before launch — searching for conflicting marks before branding a new product or company
- ▸Federal trademark registration — ® protection requires USPTO registration, not just ™ use
- ▸Copyright ownership — employees create work owned by the employer; contractors need IP assignment agreements
- ▸Patent timing — provisional applications lock a priority date while full applications are prepared
- ▸Trade secret protocols — NDAs, access controls, and confidentiality systems are prerequisites for protection
- ▸IP assignment in employment and contractor agreements — no assignment means the creator may own what they built
§ How attorneys approach this
- ›IP audit — identifying what the business owns, what it uses, and what it may infringe
- ›Clearance searches — USPTO database and common law searches before adopting marks
- ›Trademark application — identification of goods/services, class selection, specimen preparation
- ›Office action response — USTP frequently issues office actions requiring attorney response
- ›Patent strategy — provisional vs. utility patent, claims drafting, continuation strategy
- ›IP enforcement — cease-and-desist letters, DMCA takedowns, TTAB oppositions, and litigation
“The most common and costly IP mistake for early-stage businesses is the missing IP assignment. Founders hire contractors — developers, designers, copywriters — without IP assignment clauses in their agreements. The copyright and patent rights in the work created belong to the contractor who created it, not to the company that paid for it, unless an assignment is signed. Work-for-hire doctrine covers employees but not independent contractors for most work categories. This becomes a crisis at the first due diligence: a potential acquirer or investor finds that the company doesn't actually own its own software, designs, or content — and the deal dies or the price drops substantially. A one-page IP assignment addendum in every contractor agreement prevents this entirely.”
§ What to look for in an attorney
- 01USPTO registration experience — trademark prosecution is specialized work distinct from general business law
- 02Patent bar admission if patent prosecution is needed — only registered patent practitioners can file
- 03IP clearance experience — the search before adoption is as important as the filing
- 04Enforcement track record — an attorney who has sent cease-and-desist letters and knows when they work
- 05Startup IP experience — understanding how to build a portfolio efficiently on a limited budget
- 06Coordination with business strategy — IP decisions should align with product and market strategy
⚖️
§ Ask these at your consultation
6 questions that matter
- ❓Is my business name, logo, or product name available for trademark registration?
- 💰Who owns the IP created by my employees and contractors?
- 🔍Should I file a provisional patent application — and how much time do I have?
- 📋What trade secret protections should I have in place to protect my competitive advantages?
- 💬Someone is using my brand name or logo — what are my options?
- 💡What IP do I own, and what am I licensed to use — and what might I be infringing?
§ Frequently asked questions
Common questions about intellectual property for businesses.
Q 01
What's the difference between ™ and ®?
™ is an unregistered trademark claim — you can use it without any government registration simply by using a mark to identify your goods or services. It provides some common law rights in the geographic area of actual use. ® means the mark is federally registered with the USPTO. Federal registration provides nationwide rights, the right to use the ® symbol, stronger legal remedies against infringers, and the ability to register with Customs to block infringing imports. Registration also provides constructive notice — infringers can't claim they didn't know you had rights. The registration process typically takes 8–18 months and requires proving use in commerce.
Q 02
My company name is already being used by someone else online. What do I do?
First, determine whether they have senior rights — whether they registered the mark or were using it before you. If they have senior trademark rights, you may need to rebrand or negotiate a coexistence agreement. If you have senior rights (you were using the mark first or have a federal registration), you can send a cease-and-desist letter demanding they stop. For domain names, ICANN's UDRP process is an efficient alternative to litigation for recovering domains registered in bad faith. Social media impersonation and infringing accounts can often be addressed through platform reporting systems. A trademark attorney can assess which route is appropriate based on the specific facts.
Q 03
Do I need to register my copyright?
Copyright protection exists automatically from the moment an original work is created and fixed in a tangible medium — no registration required. However, registration with the U.S. Copyright Office is strongly recommended for works you may need to enforce: it's a prerequisite to filing an infringement lawsuit, it enables you to recover statutory damages (up to $150,000 per work for willful infringement, without proving actual damages), and attorney fee recovery. Registration within 3 months of publication or before infringement begins is required to access statutory damages and attorney fees. For software, creative content, and original business content you care about protecting, registration is inexpensive and the enforcement benefit is substantial.
Q 04
What qualifies for patent protection?
U.S. patents protect novel, non-obvious, and useful inventions. Utility patents cover processes, machines, manufactured articles, and compositions of matter — including software implemented processes and business methods in some circumstances. Design patents protect the ornamental appearance of functional items (shape, configuration, surface ornamentation). Plant patents cover asexually reproduced plants. Software can be patent-eligible if the claims are directed to a specific technical improvement rather than an abstract idea — the eligibility standard has been narrowed significantly by Supreme Court decisions since 2014. A patent attorney or agent registered with the USPTO can evaluate whether your invention meets the threshold for protection and is worth the cost of prosecution.
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