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Legal Management

Protecting Intellectual Property: Strategies for Startups

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In the rush to get your business off the ground, you might neglect the need to protect your intellectual property. But if your intellectual property is original and differentiates you from your competition, it will be one of the most valuable parts of your business.

In many cases, the law around intellectual property rights can be unforgiving of early mistakes. Here are a few strategies to consider embracing as you build your brand and develop your intellectual property.

Register Your Trademarks, Protect Your Brand

In many jurisdictions there is a degree of protection in brand names, logos, and other trademarks, regardless of whether the owner of the mark has applied for a trademark registration. Generally, this protection extends throughout the area in which the mark has been used and has become known.

However, a registration can take this to the next level. In addition to providing a presumption that the registered owner of a mark is the true owner, in most jurisdictions a registration gives the owner the exclusive right to use the mark throughout the jurisdiction. In many ways a registration can be thought of as a way to make a mark known throughout the jurisdiction without having to actually operate throughout the jurisdiction; it allows an applicant to legally indicate an intention to use and protect a mark more broadly then they are using it in practice. A registration also provides several enforcement options, which are not available for a mark which is unregistered.

Be aware that if you plan to launch in multiple regions and wish to protect your mark in each, you may need to independently register the mark in each. At least for the time being, each jurisdiction governs its own registration process.

Consider Copyright

Most countries offer robust copyright protection for original literary, artistic, dramatic, and musical works. Examples of copyright-eligible works include original software code, marketing materials, written or performed music, books, and movies.

Copyright protection is largely automatic; as soon as an original creative work has been rendered in a fixed form, copyright subsists in that creative expression. However, like trademark protection for a mark, copyright protection for a work can be enhanced by way of registration. In the case of copyright protection, a registration is a way to notify the public of the ownership of a work and provides for easier enforcement of the copyright owner’s rights.

Navigating copyright rights with independent contractors and others you obtain services from as a start-up is also tricky, and can involve issues of ownership, assignments, licences and waivers of moral rights. Advice from intellectual property lawyers such as those at Heer Law can help you avoid missteps when dealing with service providers in the early stages of your new business.

Patent Your Innovations

Many start-ups are based on an improvement of an existing product. Even if your improvement is not breathtakingly ingenious, there is a good chance it is patentable if it is new and has at least one material benefit over the existing product.

If your start-up is developing an entirely new product altogether, a patent could be very valuable. Many inventors are aware that a patent allows the owner to exclude others from making the invention defined in the claims. However, a patent also allows the owner to exclude others from using and selling the invention as well. This can be particularly useful in a globalized economy; you do not need to seek a patent in every jurisdiction that your competitors could use to manufacture the product, only the most profitable jurisdictions to sell the product in.

A patent is a particularly powerful piece of intellectual property, as the applicant for a patent can define their invention in whatever way they please. Provided the patent office accepts the claimed invention as novel, non-obvious, useful, and a type of invention that is eligible for a patent, the patent office will allow the application and issue the patent.

In addition to being used to block competitors, patents are also commonly sold, licensed, and used as collateral to secure funding. In one of the most famous examples of the value of patents, the patent portfolio of Nortel was sold for $4.5 billion in 2011.

Secure Your Trade Secrets

One of the main drawbacks of the patent system for many inventors is that an invention must be fully disclosed in a patent application. Particularly in the early stages of the development of an invention, protecting the invention as a trade secret is often a viable strategy. If the invention is one that can be kept secret while being commercialized, it may be best to forgo a patent application entirely.

Secrecy can also be used to protect other confidential information. Lists of suppliers, customers, and other contacts are often kept confidential and protected as trade secrets. Business plans and marketing information can often also be maintained as trade secrets.

Confidentiality, particularly early in the development of an innovation, can also provide a business with a degree of freedom to explore options without the risk of public failure and without the risk of alerting competitors to the value of exploring similar options.

Practically speaking, secrecy is maintained by way of a combination of confidentiality agreements and security measures. Entering into agreements with individuals who will come into contact with confidential information provides legal protection against deliberate disclosure or misuse. Security measures protect against accidental disclosure and against the theft of information.

About the Author

Christopher Heer is the owner and founder of Heer Law. He is an intellectual property lawyer, registered patent agent, registered trademark agent, and is also certified as a specialist in intellectual property law (patent) by the Law Society of Ontario.

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