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Protecting your Business’ Intellectual Property
When it comes to your company’s intellectual property, “better safe than sorry” is more than an old adage. It is the sort of advice that can save you lots of money, perhaps even your business.
That’s because, on the one hand, your intellectual property can be copied and stolen far more easily than your physical property. Someone gets a hold of your idea for this unique and distinctive product, seeks registration for protection before you do, and you’re out of luck.
On the other hand, you may infringe on someone else’s intellectual property rights and not know it. You come up with this fantastic idea, develop it, go through great expense to market it and sell it, and one day you find out in a lawsuit that your fantastic idea occurred to someone else years prior and he or she had already built a business around it.
What can you do to avoid these potential disasters?
1. Get to know intellectual property law.
Far too many people are simply careless about their intellectual property and are too trusting of other people who have not necessarily earned that trust. Protection begins by being extremely careful about which conversations you engage in, and who you trust with sensitive information about new products, trade secrets, and the like. That’s why the first step should always be to seek legal protection of all IP.
That’s done with patents, trademarks, copyrights, and trade secrets the four types of IP subject to legal protection. Patents, trademarks, and copyrights are protected through statutes drafted for those specific types of property and even have government entities that secure their protection through registration. Trade secrets, the fourth type, must be protected in other ways.
Trade secrets can be protected with strong confidentiality agreements and well-drafted contracts that leave no room for misunderstanding. Since trade secrets are not subject to patent, trademark, or copyright protection, the best advice is to protect them as you do other things you place in a safety deposit box—just make sure no one finds out who is not supposed to.
2. Take inventory of all of your IPs and then go about the task of protecting each one as thoroughly as possible.
This process can get complicated because there are so many kinds of IP. But the first thing to do is to sort out the ones you have and then get in the habit of protecting all new IP assets you come up with.
3. The issue of adaption.
One thorny issue is adaptation. What if your great new idea is a twist on an existing product or brand? The answer is, that it needs to be truly unique and different. The legal standard is the likelihood of confusion as perceived by the public. Your new mark must be inherently distinctive to the consumers for it not to infringe on others’ business names.
Then there are those cases in which a company has been using a product or brand for years without ever registering it and along comes a competitor and obtains a patent or trademark protection for the same product or brand. In many cases, the right goes to the company that has been using it for a long time, not to the one that just registered it—but again, why take the chance? It’s a really fine line and you never know which way the judge will decide. So even if you’ve been using a product or brand for a long time, protect it and avoid the risk. It’s never too
late.
“Speaking of managing risks, obtaining insurance coverage is one way to go,” according to Arturo Ortiz, business development partner for Fulcro Insurance. “It’s important to be aware that traditional insurance policies are not designed to cover the majority of loss exposures that are associated with IP. Through highly specialized policies, you can protect against potential lawsuits if you infringe someone else’s IP and insure for the legal costs and potential losses if you must sue someone for infringing on yours,” added Ortiz.
Along this entire journey, it is advisable that business leaders not lose sight of the big prize. In the end, this is about protecting something with the objective of turning it into a major driver of the business. IP can and should be a source of sales and growth when managed with that in mind. It’s not about legal technicalities. It’s about the future of your business.