Intellectual property decisions cannot be ignored.
They’re a linchpin for the long-term success of any type of company. Still, IP is often an after thought for startup businesses, pondered and discussed once more “important” decisions have been made.
Many times, it’s not the lack of taking action on an IP issue, but taking action improperly. With that in mind, here are four things you should not do when it comes to IP for your business.
1. Don’t create a new business without considering IP protection
Now that you’ve thought up a new product and/or service the world cannot live without, created a business plan, acquired funding and hired employees, your new business is well on its way. Or is it? Have you determined what IP your company will have and how best to protect it?
A company’s IP – be it the actual product, the brand name under which it is sold, or the images used to promote it – is often its most valuable asset, helping to distinguish products and services and used to signify quality. So it’s critical to protect it.
2. Never choose a trademark for a brand’s product/services without proper research.
When you are starting your company and selecting a brand name for the business and/or featured product or service, perform research to make sure that the name is protectable under U.S. trademark law.
Failing to take appropriate precautions when selecting a brand name can lead to dire consequences, including:
- selecting inherently weak brand names with a narrow scope of trademark protection or no protection at all.
- adopting brand names that violate another company’s IP rights, exposing your company to injunctive relief and monetary damages.
- limiting available legal rights and remedies against third-party misuse of your company’s IP.
- loss of control over your brand reputation.
One recent example of this is a local dispute between the U.S. Olympic Committee and a restaurant in Reading Terminal Market. In 2012, the U.S. Olympic Committee sent a cease and desist letter demanding that the owner of a food stand called Olympic Gyro change the name of his business.
In the end, Athens Voulgaridis decided that he did not want to fight the U.S. Olympic Committee and he changed the name of the stand to Olympia Gyro. Disputes like this can be avoided if the appropriate research is performed prior to selecting a brand name for a company.
3. Do not dismiss the need for a social media policy.
Even if your company isn’t using social media, or is solely focused on one or two social channels, odds are that your employees and/or business partners are using it, and in ways you may not expect. Make sure you establish a social media policy to control the information disclosed about your company by employees via social media. Because social media changes constantly, no policy can cover every contingency that may arise.
However, every policy should cover certain IP-related issues, including:
- who owns the social media account.
- how the company’s trademarks and logos may be used.
- how a company’s copyrighted materials may be used.
- how the company will enforce its own IP rights.
This recently came into play when a Pennsylvania banking consulting and education company had a legal dispute over the ownership of a LinkedIn account. In 2013, a federal court ruled that although the employer was wrong to seize control of the ex-employee’s LinkedIn account, the ex-employee was not entitled to monetary damages. This case outlines the importance of every company having a social media policy in place.
4. Don’t even think about using someone else’s copyrighted material
If an employee finds a photograph on the Internet that would look great on your company’s website, don’t use it unless you have the express written approval of the photograph’s copyright owner.
Owning the copyright gives the owner the exclusive right to:
- reproduce the work
- prepare derivative works
- distribute the work to the public
- perform the work publicly, including the right to perform sound recordings by a digital audio transmission
- display the work publicly
Taking someone else’s copyrighted work for your company’s use may be committing copyright infringement and leaves your company potentially liable for monetary damages and/or criminal charges.
This issue arose recently when a local photo blogger, Bradley Maule, discovered some of his photographs were being used without his permission. Maule filed a complaint in federal court against the offenders, including Philadelphia District Attorney Seth Williams, for the alleged use of his copyrighted work.
While there are some defenses to allegations of copyright infringement, the best practice is to first obtain the express, written permission of the copyright owner.
Making IP part of the foundation of your new company or product plan is one way to ensure future success. Passing off these discussions and decisions is a critical mistake to the health of your business. Your brand is the essence of your company/product and not something that should be come to lightly. A bit of research and preparation on the front end can save you and your business a lifetime of regret.