Intellectual Property refers to the ownership rights in things that are invented, designed, or created. The inventor of a machine or device that has not existed before “owns” the right to be the only person to benefit financially from the sale and use of the machine or device for a period of time. These rights of ownership and economic benefit are called Patent rights.
If you are in business, you will name your business and design (or pay someone to design) a logo and other identifying marks. The purpose of these Trademarks is so that customers can be certain they are buying your product or using your service and not the (usually inferior) product or service of someone who has copied your Trademark and is attempting to cash in on your hard work building a brand that customers look for when they’re shopping.
Lastly, if you are a novelist, musician, or visual artist, you “own” the right to benefit economically when other people enjoy the work you have created. These ownership and economic benefit are called Copyrights.
In the case of creative works of art, each is by definition unique, and it is rarely difficult to prove that you wrote a novel or painted a picture. (It can happen that someone steals something you wrote or created, but in the case of written works, in the age of computers and the ability to securely store electronic copies of documents, proving authorship is rarely an issue. In the case of paintings, artists have signature styles that experts can detect so proving you were the painter can also be established in most cases. However, many artists will take selfies with their finished paintings in their studios so there is no doubt.)
Music can be trickier. It is not often that people attempt to steal other people’s songs (although it does happen). However, it can happen that a songwriter mistakenly writes a song that is so similar to an older song that he or she finds he or she impinged on the copyright owned by the writer of the first song. This happens because the songwriter heard the first song, often many years before writing their song, and was “inspired” without realizing where the inspiration came from. (For readers who are a little bit older, they may recall this happened to former Beatle George Harrison in connection with his well-known song, My Sweet Lord. Of course, a former member of the Beatles would not have to intentionally copy an older song, but you don’t have to intend to do so in order to have infringed upon another person’s copyright.)
In all 3 categories of Intellectual Property Law – Patents, Trademarks, and Copyrights – you “own” your rights from the moment you invent, design, or create (and in the case of Trademarks, use it to identify your business and products) whatever it is you’ve invented, designed, or created. Unlike in cases of creative works, it can be difficult to prove you were the first person to invent something or design and use a Trademark.
Therefore, the first time you will need an Intellectual Property Lawyer is when you register your Patent or Trademark. Every (or almost every) country in the world has an agency where you can register your Intellectual Property. In Canada, it is called the Canadian Intellectual Property Office (CIPO).
The purpose of registering your Intellectual Property is to provide proof that you were the first person to invent the gadget or design the trademark.
As you might imagine, particularly in the case of Patent applications, it is a long, complex, and oftentimes expensive process. It must be undertaken, however, because without a Patent you have nothing. In fact, it’s worse. Without a Patent, anybody who happens to see your invention can simply copy it and Patent it for themselves. As the first person to file for a Patent for the invention they don’t even have to deny that they got it from you. If they filed first, they own it.
The reason Patent applications are expensive is that the paperwork needed to describe your invention has to meet very specific, very technical requirements. Also, the CIPO will conduct a thorough investigation to make sure you are not trying to Patent something someone else has already patented. (Your Intellectual Property Lawyer will already have conducted such an investigation before filing your Patent application, but the CIPO is hardly going to take your Lawyer’s word for it.)
Trademark applications are similar but not as expensive because the investigation process is less onerous. Either the name of your company has already been trademarked or it hasn’t. And computer programs can compare the graphic design of your logo against existing logos quickly and relatively inexpensively. You will still need an Intellectual Property Lawyer, however, to handle the matter for you.
You may need an Intellectual Property Lawyer after registering your Patent or Trademark to protect your ownership rights. You may discover that someone is using a name for their business that is the same as yours. If they haven’t tried to trademark the name, no one except you is going to stop them from doing so. Usually in such cases, the person using the same name as your company doesn’t realize it and if they get a demand letter from your Intellectual Property Lawyer, they will stop. If not, you’re off to court. It should be noted that you cannot simply ignore a trademark infringement once you become aware of it. If you do, you may find that your inaction amounts, in law, to agreeing to let the other company use the same name.
You can also challenge someone else’s Patent application if you become aware of it and believe their invention is really just the same thing that you already invented.
The third situation in which you will need an Intellectual Property Lawyer is if you have invented and patented something and now want to make money from it. Unless you are very wealthy or an experienced entrepreneur, you will do this by partnering with a company that will manufacture and sell your device (or use it as part of a larger machine) and pay you a royalty (i.e., a commission) each time they do. However, negotiating such licensing agreements can be difficult, especially if you are but one inventor and you are trying to negotiate a fair deal with a (usually) large corporation that can hire as many Intellectual Property Lawyers as it wants.