Every entrepreneur knows that a key piece of success is a strong and identifiable brand. Because much thought, effort and money goes into branding and so much success rests on it, it is important to ensure you can own, use, and protect that brand. This article addresses some basic intellectual property considerations entrepreneurs and startups should keep in mind from the beginning.
Brand creation may involve a number of people including both employees and outside consultants such as ad agencies and designers. Their output, including potential product names, website copy, strategic reports, etc., is likely something they could claim copyright in. While these people can provide valuable creative input and direction, unless proper precautions are taken in the beginning, you might not end up owning what they create.
Generally, the creator of creative work is the owner of all copyright therein and can control who uses it and how. While the employer/employee relationship will likely give rights to work created by employees, independent consultants present a different story. In some instances, consultants can retain ownership of copyright in what they create. Therefore, when working with consultants, businesses should ensure that their consulting agreements include a written assignment of copyrights. Such an assignment would likely provide for transfer of rights from the contractor and allow the business to exclusively own, control, and use that work.
Often the first thing a consumer, competitor or investor will encounter in the market is a trademark; the name of your company or product. While catchy, unique names resonate with consumers, it is becoming extremely difficult to find a mark that is not already in use. Indeed, according to the United States Patent and Trademark database, there are close 2.5 million “live” registered or pending trademark applications and over 335,000 applications were filed in 2014 alone.
Trademark law protects against others using trademarks that are confusingly similar to existing marks. Therefore, even in the earliest stages startups should consider whether they can even use the names they choose. If a name is selected that is too similar to an existing mark, there is the chance the USPTO might deny registration of that mark or the risk a competitor might claim infringement and bring litigation. Investors may also consider trademarks during due diligence and if key trademarks pose infringement risk or are not protected, an otherwise interested investor may pass. Accordingly, startups should consider performing trademark searches before adopting any marks to prevent these issues.
It is equally important to set up programs to protect trademarks. While simply using a mark in commerce confers rights, a Federal registration provides additional rights, including the ability to record marks with US Customs to help police against unlawful imports. Therefore, startups should consider registering their marks with the USPTO. Finally, because trademark protection depends on being proactive and policing your marks, internal policies and procedures should be implemented to ensure marks are used correctly and only by those authorized to do so.
While there are a myriad other things that an entrepreneur or startup must pay attention to in the early stages of business development, because intellectual property is such a key foundational part of any business, these elements should be considered from the beginning as well.
Photo Courtesy of Magny Cours on Flickr