Startups and their founders have a lot on their plates and a lot of issues that loudly announce themselves as front-of-mind. You need to hire the right people — can’t hope to grow without them. You need an attractive, functional and professional website to create a positive first profession. Finding an office space is high on the list — not everyone’s going to fit in the garage on card tables. And customers, they’re pretty important too; that is unless a billionaire benefactor is willing to buy you out without even proof of concept, but you should not hold your breath on that!
On that list of priorities, intellectual property (IP) probably rates as a middling concern if you’re somewhat conscientious of the topic, less so if you’re more of an ideas person content to leave the difficult business aspects of running a company to others. But intellectual property is as important as any other priority on your list, if not more so. IP represents the foundation, the backbone of your work; and often the bulk of the company’s value.
Ignoring your intellectual property is a mistake, and the well-intentioned procrastination we all engage in (“I’ll tackle that next week/next month/when things calm down a bit”) doesn’t equal action. The process of handling your intellectual property should start as soon as you begin laying the groundwork for your business. But where to start if you’re an IP novice? Here are some helpful tips for getting started.
Clearly, you need to understand what your IP is if you intend to take the necessary steps to protect it. Most are able to easily point out the most obvious examples, the prototypes and other physical manifestations of what you’ve created or hope to create. But if that is the scope of your view on IP, you’re missing a lot. That logo you’ve created for your business is your IP, and as an identifying mark for your business to the public, it’s worth quite a bit to you. The same goes for the tagline you use for your product, or the copy you’ve written for your website. All of these things are valuable identifiers of you and your product, and all run the risk of being stolen if you’re not careful.
Identifying your IP doesn’t have to be a difficult or painful process. Sit down and make a list of all of your creative assets, whether you’ve used them or not. Once you have a comprehensive list, consider the status of each item; have you filed the patents, trademarks, or copyrights that you need? Are you keeping your trade secrets private? It should be a relatively simple exercise, but it is an important one for taking the next steps.
Remember this first step also is more challenging if you have moved into hiring employees or contractors as we outline below.
Once you have a handle on what your IP is, you need to take the necessary steps to protect it. It seems simple enough, right? But getting the right protection can be complicated if you don’t know what you’re doing.
The first step that many forget is to make sure that you’re not infringing upon anyone else’s IP. We often like to think of ourselves as entirely unique innovators, but there is always the risk that someone else might’ve happened upon the same idea for a product or design or logo. Before you go to the trouble of filing any type of registration, make sure that you’ve conducted a search of the respective databases for the U.S. Patent & Trademark Office or the U.S. Copyright Office to see what others have already registered.
The actual filing is something that you should be cautious of if you aren’t sure of what you’re doing. Mistakes made in filing for patent or trademarks or copyrights aren’t something that you can just go in and fix; you’re stuck with that mistake and the fees to correct it are not insignificant, which means it’s best to avoid making them in the first place. Talking to an IP attorney might seem like an unnecessary expense, but it’s money well spent to get things right the first time.
Protecting your IP also means making sure that it belongs to your company rather than your employees. Any employment agreements you have should address IP ownership in regards to work your employees are creating for you, and any IP created should be assigned to the company. Unclear ownership can create for potential conflict and legal wrangling down the line, and while we’d all like to think that an amicable solution would be easy, the legal process is not nearly so straightforward. Also, as our series on startups outlined, consulting a business attorney about proper agreements for both employees and independent contractors is also money well spent.
Now that you’ve identified your IP and filed for all the right protections, you can kick back and not have to worry about any of it ever again, right? Were that it so easy. Managing your IP is an ongoing process that takes diligence and a commitment from you and everyone at your company.
Having trademarks or copyrights doesn’t mean the work of protecting your IP is done for you; you have to stay vigilant to ensure that your IP isn’t being exploited somewhere on the internet. Periodic searches for your work can root out any potential infringement and allow you to take action against those individuals, should you find it necessary.
The creative process never stops, which means that your company is undoubtedly creating more IP even after you’ve filed all your trademarks and copyrights and patents. Sitting down with your team to review what has been created not only gives you an opportunity to assess the state of your work, it provides the opportunity to identify any new IP and take the necessary steps to protect it.
Intellectual property can seem like a chore compared to the other tasks you need to complete to get your business off the ground, but it’s as important as anything else you can do to ensure the future of your company. We are rebooting our IP series starting next week so look for some real-life stories, both good and bad. #onwards.
I want entrepreneurs to have Fortune 500 style software solutions. I cover IP issues and business risks to prevent horror stories and help businesses succeed. In 2015, I co-founded Evolve Law to accelerate the adoption of technology within the legal industry and in addition, I am a LegalShield Access Advocate.
I have a Bachelor of Commerce degree from McGill and a Juris Doctorate from Arizona State as well as my US and Canadian public accountant certifications. I am an international writer, speaker, and mentor, and sit on the ABA Group Legal Services Association board.
I previously represented entrepreneurs on the Board of the Crowdfunding Investment Regulatory Advocates and the Licensing Executive Society (LES) Emerging Enterprises committee. I am the principal attorney at Juetten Law and is Of Counsel to Nimbus Legal
Latest posts by Mary Juetten
- Intellectual Property – IP Tips for Startups - August 23, 2018