Patenting for Inventors Ep.160: When Ideas Defend Themselves: The Strange Rules of Intellectual Property
Illustration by @max_gps
In this episode of Patenting for Inventors, partner Adam Diament explores the moment when intellectual property rights actually begin — and why the answer isn’t always intuitive. From copyrights that attach instantly, to trademarks that arise through use, to patents that only matter once filed, and trade secrets that exist only if you keep them under wraps, Adam unpacks the strange rules that govern how ideas defend themselves.
Whether you’re a creator, entrepreneur, or business owner, understanding when rights start can mean the difference between protecting your work and leaving it vulnerable. Tune in for a clear, practical breakdown of how copyright, trademark, patent, and trade secret law work in practice.
🎧 Listen to the full episode now and keep on inventing.
Patenting for Inventors Ep. 160:
Podcast Transcript:
Hello and welcome to the Patenting for Inventors podcast. I’m your host, Adam Diament, patent attorney and partner at the law firm of Nolan Heimann in Los Angeles, California. This episode is “When Ideas Defend Themselves: The Strange Rules of Intellectual Property.” Today we’re talking about something that affects creative people, inventors, entrepreneurs, and businesses every single day: when do you actually get rights in the stuff you create? Do you automatically own them? Do you need to file something with the government? Or do you only get protection if you keep it secret?
The answer isn’t intuitive. Copyrights, trademarks, patents, trade secrets — they’re all forms of protecting creativity, but the way the law treats them depends on the underlying policy. So today, we’re going walk through the four main categories: copyright, trademark, patent, and trade secrets and when rights actually begin. By the end, you’ll see why some things give you automatic rights the moment you create them, while others only give you rights if you go through a government system or lock them away like a family recipe.
Let’s start with copyright, because it’s the most intuitive. Copyright law protects “original works of authorship fixed in a tangible medium.” That sounds like lawyer language, but here’s what it means: the moment you write a poem in a notebook, snap a photo on your phone, record a song, or design a graphic, you have copyright in it. You don’t need to file anything. You don’t need to put a copyright symbol on it. Rights are automatic the instant the work is created and “fixed” — meaning captured somehow, whether on paper, in a computer file, or on canvas.
Why does it work like that? The policy is simple: society wants to encourage creativity, and we don’t want to make artists, writers, and musicians jump through hoops just to get protection. If copyright only existed when you registered with the government, it would be impossible to protect the millions of small creative works that happen every day, from TikTok videos to indie songs to doodles on a napkin that later turn into logos. Automatic protection lowers the barrier, and that makes sense for creative expression.
Now, registration still matters. If you want to sue in federal court for copyright infringement, or if you want statutory damages and attorney’s fees, you need to register. But ownership itself? That’s automatic. It’s a kind of “you made it, you own it” approach.
Think about it like this: copyright assumes creativity is fragile and constant. If the law made you apply before protecting your rights, tons of people would give up or lose out. Instead, copyright flips the presumption — protection is automatic, and you only lose it if you give it up, like putting your work in the public domain.
Now let’s move to trademarks. Trademarks are words, phrases, logos, symbols, even colors or sounds that identify the source of goods or services. Think of Nike’s swoosh or McDonald’s golden arches, Even the red sole of a Louboutin shoe counts as a trademark, technically a form of “trade dress.”
Here’s the key: trademark rights arise through use in commerce. The first moment you start selling goods or services with a mark — whether that’s a logo on a T-shirt or a name on a coffee bag — you start developing what are called “common law trademark rights.” You don’t need to file with the trademark office. The law cares about whether consumers in the marketplace actually associate your mark with you.
Why does it work like this? The policy is about consumer protection and fairness. Trademarks exist to prevent consumer confusion and to protect the goodwill businesses build with customers. If customers see a mark and know it means “this is from that company,” the law says that association should be protected — even without registration.
Now, federal registration gives you stronger rights: nationwide presumptions, the ® symbol, access to federal court, and stronger remedies. But the foundation is still use. A trademark that sits unused, even if registered, can be challenged. A mark that’s used consistently, even without registration, builds real enforceable rights in the geographic areas where it’s used.
So the difference between copyright and trademark is subtle but important:
Copyright: automatic when you create.
Trademark: automatic when you use in commerce.
Now let’s flip the script. With patents, you do not get any rights just by inventing something. You could spend years tinkering in your garage, come up with the coolest new gadget in the world, but until you actually file and obtain a patent, you have zero enforceable rights to stop someone else from using it.
Why is that? Because patent law is built on a bargain. The government says: “Disclose your invention to the public in a patent, and in exchange, we’ll give you a temporary monopoly, usually 20 years from the filing date.” That monopoly is the right to exclude others from making, using, selling, or importing your invention. Many attorneys don’t like the use of the word Monopoly because a patent doesn’t necessary give you any kind of market power, but just for simplicities sake, I’ll call it a monopoly over your specific invention.
The public disclosure part is essential. Patents aren’t just about rewarding inventors; they’re about enriching society’s collective knowledge. Once a patent expires, the invention falls into the public domain. Anyone can use it. That’s why you can buy generic drugs once the brand-name drug patent expires, society gets permanent access in exchange for temporarily rewarding the inventor.
So unlike copyright or trademark, where rights arise automatically, patent rights don’t exist until the government has examined your application and granted the patent.
The policy here is about balance. Inventions can be incredibly broad or powerful. If inventors automatically got rights just by inventing, it would clutter the public domain and block innovation. By forcing inventors to disclose, file, and pass an examination, the law ensures that only inventions that are new, useful, and non-obvious get protection, and that the public gets to learn from them in the process.
So the default rule: inventing gives you nothing until you patent. That’s the sharpest contrast in IP law.
Finally, let’s talk about the secretive sibling in the intellectual property family: trade secrets. These aren’t registered like patents, trademarks, or copyrights. Instead, trade secret rights arise simply from keeping valuable information secret.
The Coca-Cola formula, Google’s search algorithms, KFC’s spice blend, all trade secrets. The law protects them as long as:
The information has independent economic value from being kept secret.
The company makes reasonable efforts to maintain that secrecy.
There’s no application, no government certificate. If you’ve got valuable information and you protect it with NDAs, restricted access, encryption, or locked filing cabinets, it’s a trade secret. And it lasts indefinitely, as long as secrecy is maintained.
The policy is straightforward: trade secrets encourage innovation and investment in things that might not qualify for patent protection or that companies don’t want to disclose. Unlike patents, where disclosure is the price of protection, trade secrets flip it: secrecy is the price of protection.
But here’s the catch: if someone reverse engineers your product, or independently discovers your secret, you lose exclusivity. The law doesn’t punish fair discovery, only misappropriation, like theft, bribery, or breach of an NDA.
So here’s your podcast quiz of the day.
If you write a poem tonight in your notebook, do you own rights? Yes, copyright attaches instantly.
If you start selling T-shirts with a cool logo, do you own rights? Yes, trademark rights arise from use in commerce, even before registration.
If you invent a new type of engine in your garage, do you own rights? Not until you file and get a patent. Until then, legally, you have nothing.
If you develop a secret recipe, do you own rights? Only as long as you keep it secret.
So the next time someone says “I invented this, so I own it,” you’ll know the answer is: not unless you patented it. And when someone says “I wrote this song, but I didn’t register it,” you’ll know: don’t worry, you still own it, registration just helps you enforce it. And when a company brags about its “secret formula,” you’ll understand that secrecy itself is the protection,
That’s the beauty, and the headache, of intellectual property law. Different rights, different rules, different policies. But together, they form a system designed to encourage creativity, protect consumers, and fuel innovation.
So, there you have it! The different rules on when rights attach to your creative works. If you need help with patents, trademarks, copyrights, or other business matters, connect with me by giving me a call at 424-281-0162. Thanks for listening, and until next time, I’m Adam Diament, and keep on inventing!