Did you know that intellectual property may be an asset to distribute during a divorce?
It is time to divide up your assets in a divorce. You’ve decided who is getting the house, the car, and the fine china. But, there also may be valuable intangible property that shouldn’t be overlooked. In some marriages, intellectual property — such as ideas, inventions, and creative works — is also something that needs to be distributed, just like your savings and stocks. I asked intellectual property attorney, Nancy Mertzel, of Mertzel Law PLLC, to provide valuable tips to divorcing spouses on how to avoid leaving money on the table when it comes to intellectual property.
What is intellectual property (IP)? It’s a “creation of the mind.” It includes creative works such as books and art, technical inventions, and brand names and logos. IP is typically protected by patent, copyright, and trademark law. If IP is earned during the marriage, it is a marital asset that is subject to equitable distribution.
Copyright law gives the owner of copyright in a work certain exclusive rights for a limited time. For example, copyright owners have the right to make copies of their works. Copyright protects human expression, whether that be a book, music, or computer software; importantly, it covers both published and unpublished works. Copyright exists from the moment your work is created.
Inventions and discoveries can be protected through patents. For example, new and useful machines, manufactured articles, industrial processes, and chemical compositions may be patented. Patent rights only exist when a patent is granted by the United States Patent and Trademark Office.
A trademark is a word, phrase, symbol, or design that identifies and distinguishes the source of goods and services. Trademarks are unique in the sense that they can last forever, unlike copyright and patents if you continue to use that trademark. Trademarks can be registered by the Patent and Trademark Office. Alternatively, you can rely on common law rights for your trademark by proving you have established a reputation in a particular geographic region.
If your spouse’s IP is earned during the marriage, this is a marital asset that may be distributed during a divorce, unless you have a prenuptial agreement or postnuptial agreement that defines such IP as your separate property.
During a divorce, the starting point is to make sure your divorce attorney is aware of your spouse’s IP and to identify the assets to be valued. This usually includes searching the United States Patent and Trademark Office databases for patents and trademarks and searching the United States Copyright Office for copyright registrations; however, these searches may not identify everything. The IP assets discovery process may require some teamwork (typically between the spouse’s family lawyer, financial advisor, and IP expert), as this can be a complicated process. The next step is to value it, which typically calls for hiring a professional valuation expert.
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Nancy Mertzel, Esq. is the owner of Mertzel Law PLLC, a boutique intellectual property firm, www.mertzel-law.com. For over 25 years, Nancy has been protecting her clients’ brand names, products, content and technology with litigation and transactional work. Nancy can be reached at firstname.lastname@example.org or (646) 965-6900.