Avoiding Intellectual Property Pitfalls

I work with a lot of people starting up businesses and consistently find that most people don’t think about intellectual property as they begin their venture. This can be dangerous for two reasons:

1. A new business may create valuable content that could and should be protected by intellectual property and;

2. the new business may inadvertently infringe on another’s intellectual property and find themselves facing financial penalties at the outset of their business and that is never where you want to find yourself.

With that said, let’s take a quick look at the different areas of intellectual property. As a new venture what do you have that’s worth protecting? And where do you need to be careful with regard to stepping on anyone else’s intellectual property?

WHAT DOES A CopyrighT PROTECT?

Copyright protects any work of original authorship, including, photographs, poems, books, paintings, drawings, and anything similar that is captured in a tangible form of medium. The copyright doesn’t have to be registered with the Copyright Office, but there are certain benefits to doing so.

PROTECT THIS: As your business starts out, you may be creating a lot of content that is protectable by copyright. The website, taking photographs, writing blogs or other content. This can all be copyrighted and copyright will attach as soon as the content is in a tangible form of medium (including electronic medium). If there is something that your business may be concerned about protecting, you can consider registering the copyright. Putting a copyright notice on the work is also helpful, but not necessary.

PREVENT THAT: This is one area where many businesses and individuals inadvertently fall into pitfalls. In some cases, someone will need a photograph of something for their website and unwittingly pull something off the internet to make their point without realizing that the image was copyrighted.

In some cases, the person will hear from the copyright registrant asking for licensing fees for past use. So when using images on your website, make sure that you have the rights to use it. You may be able to find images on a paid site such as Canva, istock, or other image licensing site, or to the extent possible, you can try to take your own photographs.

Trademark

Trademark protects anything that serves to identify the source of goods and services. This includes the name of a business, a logo, a tagline, or anything else that identifies the business.

PROTECT THIS: If you have a name or logo that you like, you may consider registering it with the US Patent & Trademark Office. This gives you many benefits, most notably, the presumption of validity. That means that the courts will presume that your trademark is valid.

PREVENT THAT: This is another area where businesses that are just starting out can run into trouble. You may file an LLC or Incorporation in one state and that state will grant you that LLC or incorporation without checking the federal trademark database. So, your business might be fine in one state, but someone that is incorporated in another state with a federal trademark registration and operating nationally, may send a cease and desist letter if they learn about someone else using their trademarked name.

This is the last thing that any business wants as you are starting out. After putting a lot of effort into branding and marketing, your business may need to rename and rebrand. The way to avoid this is to check the Trademark database for any name that is confusingly similar to the name the new business wants to use. It is important to note that a name might not be identical but may still be confusingly similar from the standpoint of a consumer.

Patents

Patents cover new, useful, and non-obvious inventions.

PROTECT THIS: Many businesses starting out might not have an actual invention. For example, a restaurant probably will not have invented anything as they get started. Having said that, as a business moves along, you may end up inventing something. A chef may invent a better kitchen tool that helps out in the kitchen. If this is the case, then there are some benefits to patenting the invention to put other businesses on notice the this tool (or whatever it is) is protected.

PREVENT THAT: In certain industries, patent infringement may be a huge potential pitfall. For fast moving and emerging technologies, there may be a lot of patented inventions and any business needs to make sure that they aren’t infringing any patents.

This can be done by way of a prior art search to make sure that there are no patents in force covering what you are doing in your business.

Summary

The above list is not exhaustive with respect to what your business might be able to protect and what pitfalls that you may run into. Overall, it is important to keep these concepts in mind as your business moves along. What does your business have that could be protected and are you using anything that may already be protected by someone else? This might not solve every intellectual property problem, but it is definitely a good start.

The above is a general guideline on to avoid intellectual property pitfalls. If you have any other questions about patents or any other intellectual property questions, please consider joining our Pirate Fight Club Facebook group: https://www.facebook.com/groups/piratefightclub