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You’ve got a great idea, maybe the next killer app. You launch, and the next thing you know, you’re wrapped up in a legal battle because, much to your surprise, one small component of your product uses technology that has been patented by someone else before you.
This is one example of the many risks of not understanding IP protections. Whether you’re protecting your own product or protecting your company from infringing on someone else’s, you must factor these precautions into any product or company strategy from the start.
Here are a few different types of IP protection and the various use cases for each one.
Trademarks protect symbols such as words, phrases, logos and other visual identifiers that represent a brand or product. This can also include sounds, colors and building designs. Think of things like the MGM lion roar, Barbie pink and a Burger King restaurant. Trademarks are primarily used to ensure the uniqueness of a brand’s identity, which builds consumer trust.
A patent protects a novel invention, including a design process or physical product. Patents are time-limited, typically for 20 years. They create monopolies for patent holders. When creating a product, process or design, it’s important to determine if you could be infringing on an existing patent. Otherwise, you risk legal repercussions, even for inadvertent infringement. An attorney is needed for patent search and creation.
A copyright gives the holder exclusive rights to distribute, duplicate or recreate original works of authorship, which can include things like visual designs, software, graphic designs, web content and more. Unlike other IP protections, however, a copyright holder cannot successfully sue someone that has independently or inadvertently created the same or very similar work.
Open-source platforms would rely on copyright protection. As software is concerned, copyright protection has significant limitations, as copyright is generally not designed to protect the functionality of software or other works of authorship.
Trade secrets are meant to protect internal technology and processes that bring value to your business, and that would give others advantage to your detriment were they given access to such resources. Unlike a patent, trade secrets are not registered. Protection is typically established through non-disclosure obligations in contracts (like NDAs, employment contracts and partnership agreements). Trade secrets can include machinery for manufacturing, data, sales leads, source code and much more. Anything can potentially be a trade secret if the owner derives value from the secrecy of the information.
Why might some founders neglect IP protections?
This could be the result of a lack of awareness of the risks of not establishing protections. Alternatively, there could be cost barriers preventing protections. Patents, for instance, are not cheap to register, and not everything is patentable. Some founders don’t consider the intangibles of what they are building. It’s crucial to ensure differentiation of what your product or service does, how it functions and how it’s presented. Those differentiators can make or break your business and must be protected.
Founders should take a step back and consider what elements of their product or company are susceptible to the impact of being infringed upon or perpetrating external infringement. If you don’t, it can cost you greatly.