Non-Profit Organizations and Intellectual Property Considerations

As with for-profit companies, non-profits undertake “entrepreneurial-efforts” for organization growth depends on strong trademarks and related intellectual property rights. Without trademarks and other business identifiers (trade names, character merchandising etc.), when put on the market, the benefit and mission of a non-profit organization can be lost. Consider what Goodwill Industries^® would be without its well-recognized name and logos.

A demanding social infrastructure that supports these organizations spawns the need to pay more attention to trademarks and other forms of intellectual property rights creation and protection. Non-profit organizations sometimes overlook one of their most valuable assets—their intellectual property.

Many non-profit organizations generate valuable ideas, images, marks, products, and reputations but do not take the necessary care of protecting these valuable assets. In addition to safeguarding the organization’s intellectual property, leaders of non-profit organizations should be aware of their organization’s potential use of others’ protected property; infringing upon another organization’s rights, whether inadvertently or not, can have costly consequences.

Defining Intellectual Property

Intellectual property is a legal term granting exclusive rights to the creator and/or owner of intangible artistic and commercial assets. Most commonly, intellectual property is defined as copyrights, patents and trademarks. Copyrights cover literary, artistic and musical works. Trademarks are brand names and/or designs which are applied to products or used in connection with services. Patents protect inventions and improvements to existing inventions.

Copyright

Copyright protects original works; this protection covers a wide range of things including literary works, musical compositions and songs, images, movies, and computer programs. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.

Copyright protections exist for the creator of the work’s lifetime plus 70 years following the creator’s death. Generally, the creator of the work holds the copyright protection and therefore “owns” the work. However, when a work is created by an employee or volunteer it may be the property of the organization or it may be the property of the creator, depending on the specifics surrounding the work’s creation.

Copyright protections come into existence at the moment the work is created— even without registering the mark with the government or affixing a © on the work. However, registering an original work with the U.S. Copyright Office is required in order to bring a suit for copyright infringement against an unauthorized user of the work and also creates a public record of your copyright claim.

Examples of materials that may be protected by copyright include: an educational handbook, training materials, staff manuals, promotional materials, and any artwork or photographs included in these materials.

Non-profit organizations should consider the value of registering their key original works with the U.S. Copyright Office; registration can make it easier to protect and enforce the organization’s rights to its original works.
Non-profit organizations should have clearly-worded agreements with its employees, independent contractors, consultants, and volunteers specifying who owns the rights to any works created for the organization.
Non-profit leaders should monitor their organizations’ use of all intellectual property and be aware of the boundaries of copyright protection. Having to reprint promotional materials that include proprietary images can be a large and unexpected cost and an unforeseen infringement suit could be financially devastating to many non-profit organizations.

What Constitutes Infringement: Allegations of copyright infringement can arise when a word or a phrase appearing in your promotional efforts is used without permission of the copyright owner, thus violating their exclusive rights of use. Similarly, allegations of trademark infringement arise when a certain picture or logo is used without permission, violating the exclusive rights attached to a trademark. Once you publish your work, it is protected. Registration with the US Copyright Office allows you to bring a lawsuit if your copyright is infringed. To register your copyright online, you will need to submit the proper form, pay a filing fee, and a copy of your work. The process should be complete in approximately 3 months.

Trademarks

Any word, name, symbol, device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. Examples: Coca-Cola, LEGO Trademarks can help protect your organization’s name by avoiding confusion with other organizations with similar names, especially if you serve a large geographic area.

Servicemarks: Any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services. Examples: FedEx, Google. Restrictions: Common words or terms that identify products and services and are not specific to any particular source are not eligible to be trademarked or servicemarked.

Trademark protects words, names, and symbols that are used to identify and distinguish creators and providers of goods and services. Being aware of your non-profit’s rights related to intellectual property is important to protect your organization’s brand and reputation.

The first step is deciding if your organization has a name, original works, or an invention to protect. Conduct a search (Trademark Electronic Search System, US Copyright Database, Patents) to determine if the what you are trying to protect is already registered. Consider the magnitude of damage if another organization or individual utilized what you are trying to protect.

Decide if your organization wants to undergo the process of obtaining legal protection and monitoring any infractions if you do receive the protection. Trademark protection essentially is a means of protecting brand names and reputations.

Limited trademark protections exist once a person or organization makes use of a mark in commerce, while more extensive protections arise once the mark has been registered with the U.S. Patent and Trademark Office; protection generally lasts as long as the mark is actively used by the rights’ owner and can potentially exist permanently.

Trademark protections bring up several key issues for non-profits:

If you are thinking about starting a non-profit, you will want to ensure that you choose a name that is not already in use by another organization; being forced to change your organization’s name can cause problems with funders and recipients of your services.
Non-profit leaders should monitor the use of their non-profit’s name or names of proprietary programs by other organizations; trademark rights can be more difficult to enforce if it appears that your organization acquiesced to others’ use of its, or similar, marks.

Registration with the US Patent and Trademark office can take approximately a year and requires a filing fee. You can find a list of all the steps including links to forms needed here.

Patents

An intellectual property right granted by the U.S. Government to an inventor “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted. Patenting an invention may be helpful if your organization would like to sell the materials or items.

Registration with the US Patent and Trademark office can cost $190 to $380 for filing fees and can be lengthy. You can find a diagram on their website that outlines the process depending on the type of patent desired.

Patent law protects new, unobvious, and useful inventions, such as machines, devices, chemical compositions, and manufacturing processes. A United States patent confers the right to exclude others from making, using, or selling the claimed invention in the US for a term of 20 years from the filing date of the utility patent application.

A patent owner may file a civil suit for infringement against anyone who, without authority, makes, uses or sells the patented invention. Remedies for infringement include preliminary and permanent injunctions, damages, (enhanced damages when infringement is willful), attorney fees in exceptional cases, and prejudgment interest. Patents may be assigned or licensed.

Patents may bring up issues for non-profits related to:

A patent that has been donated to a non-profit. This could have tax and other ownership implications.
A non-profit may develop an invention which it should protect through obtaining a patent.

Internet Law

“Internet law” refers to the rapidly changing and expanding field of law related to the use and function of the computer, specifically the use of the internet. Internet law includes legal issues related to the use of information and technology for the purposes of communication, transactions and distribution. Many areas of law are encompassed by internet law, including, but not limited to, intellectual property, privacy and freedom of expression. Examples of Internet law include issues related to computer software, control of digital information, privacy, security, access and usage, and Internet commerce.

Internet law may bring up issues for non-profits related to:

The use of computer software and operating systems.
Privacy issues, such as settings for websites used for non-profits or the monitoring of employee email accounts.
Social media settings and monitoring of employee usage of social media such as Facebook.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Contact an Attorney/Agent