The time to start thinking about your new business’s intellectual property is now (unless you already started thinking about yesterday or last week — in which case, bonus points). If you get on top of your rights early, you’ll be in a stronger position to keep people from infringing on those rights — or to protect the rights in court if somebody does infringe. So here are a few things to keep in mind as you get your new business off the ground.
Understanding Your IP Needs
The first step is to know what intellectual property you might even have. For instance, your business has a name right? That’s your trademark. And if you have a logo to go with that name, that’s part of your trademark, too. Do you have a color scheme for your logo and publications? That might also be part of the trademark. Trademarks are the words and images that help customers connect your product or service with your company. You want to make sure no one else starts using them and confusing customers into buying your competitor’s stuff instead. So you should consider registering your marks. There’s a cost to registration, but getting it grants your marks extra levels of protection — including giving notice to the world that they can’t use your mark. But registration isn’t required to protect trademarks, and an IP lawyer can help you weigh the costs and benefits.
If you create an original piece of music, work of art, or another form of artistic expression, or put anything in writing, those works are copyrighted as soon as you create them — meaning no one else is allowed to copy, publish, display or perform the works without your permission. But you can’t sue to enforce your copyrights until and unless you have them registered with the United States Copyright Office. Again, registration involves costs. You can wait and register after someone infringes, but if you do the courts won’t be able to award you statutory damages or attorney fees. But maybe you don’t think there’s much risk of anyone copying your work, and you aren’t sure if you want to invest now in registration. An IP lawyer can help you think through the risks so you can make an informed decision.
Finally, will your business have information — like a formula, process, technical specification, or recipe — you need to protect and keep confidential? Those kinds of trade secrets don’t get registered (because then they wouldn’t be secret anymore), and so you have to think through the steps your business will put in place to maintain their secrecy. Will you limit who has access? Keep the files locked in a cabinet or room (maybe with one of those laser grids they have in the movies)? Saved on a password-secured computer or server? How can you use contracts to bind employees and business partners to respect the trade secrets? Courts expect businesses to take reasonable steps to maintain the secrecy of their trade secrets. An attorney can help you figure out what is reasonable for your business.
Implementing Successful IP Protection Strategies
In general, the sooner you take action to safeguard your intellectual property, the less likely it will be that you’ll face costly and stressful legal disputes later on. Should an issue arise, having clear and robust IP protections in place will often allow your business to resolve these disputes smoothly and quickly. For example, when selecting a name for your business, you should run a search using the United States Patent and Trademark Office’s (USPTO) database. If someone has already registered a mark similar to yours for similar products, you’ll need a new trademark. But don’t stop there. Remember that trademarks can be protected even if they aren’t registered. So search the web to see if anyone else is already using your mark. If so, you’ll want to think through your options with the guidance of an IP attorney.
For more information about how to assess and protect the IP needs of your Minnesota business, call the Minneapolis office of Rubric Legal LLC today at (612) 465-0074.