How do you protect an idea?

Ideas (and cookies) are very important to businesses. The law protects intangible assets like names, labels and recipes in various ways.

Let’s start with trademark protection. Trademark law protects company and product identities and brands. Examples of things that may be trademarked are words (“The Napa Valley Register”), logos (the McDonald’s golden arches), pictures, slogans (“Just do it”), colors (the pink color of Owens-Corning fiberglass insulation), product shapes (the unique shape of a Coca-Cola bottle), and sounds (the NBC chimes).

In your case, you would want to register the name of your cookies for trademark protection. First, you need to do a trademark search and what I call a “common sense search.” Google your proposed cookie name and see what comes up. If you see other cookies, you’re in trouble. If you see other things with the same name that have nothing to do with cookies, you might be okay. Is the domain name available?

Next, you’re going to do a search on the Trademark Electronic Search System (uspto.gov) to make sure the name is available. If you have a word, phrase, symbol or design that identifies and distinguishes the source of the goods of one party from those of others, and it’s not already taken, you can apply online for a trademark on the U.S. Patent and Trademark Office (USPTO) website starting at $275 per international class.

If you haven’t actually started selling your cookies yet but intend to, you can file what’s known as an “intent to use” application. Once you start selling your cookies, you can submit a “statement of use” showing that you are now using the mark in commerce. An intent to use application can be extended every six months for up to a total of three years.

Technically you do not need to register your mark to have the right to use your mark in commerce — in other words, you don’t actually need a trademark to sell your cookies. However, registering provides many advantages, including public notice of your ownership of the mark. The law makes a presumption that if you have a registered mark you have the exclusive right to use the mark. So if you start selling your trademark-protected cookies and a few years from now someone tries to sell cookies with the same name (or a confusingly similar name), you can make them stop using your name.

Keep in mind that if you have a trademark, it is up to you — and only you — to make sure no one else is using the mark. The USPTO does not enforce your rights in the mark.

Now let’s talk about trade secrets and your grandmother’s recipe. Trade secret law protects proprietary information that can be maintained as secret. Examples of trade secrets include formulas (like the recipes for Coca-Cola and KFC chicken), plans and designs, and processes. A trade secret must be valuable to the business and must actually be kept secret. To protect your grandmother’s recipe, do NOT share it with anyone. When it comes to sharing it with employees, consider using non-disclosure and non-compete agreements.

Intellectual property law is complicated. If your cookies really are the best around, you may want to hire an attorney to help you navigate these muddy waters.

Mary Hudson is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.