Intellectual Property – Creations of your Mind
‘A hundred and one wonders our mind holds,
And out of it rarely a creation unfolds!’
Isn’t that true? Imagine you have created something ingenious, what we formally call “Intellectual Property” or simply IP, like a truly mind-blowing technology/invention or an original design or a very simple yet original poem like the one above. So what would your next step be? Simply cherish the IP and give it all up for the others to use (the right word here is “misuse”) or protect the IP in the way it should be?
Start-Ups and IP
Of course, the above scenario holds good for any person; but it is all the more important if you are a Start-up, fresh into an industry, trying to make your efforts count, especially where your business involves dealing with IP. Moreover, as a Start-up, you may have the zeal for business, yet being new, you may not possess a clear idea about the implications your Intellectual Property might have on your business.
Why Protect IP
You may naturally have second thoughts about protecting your Intellectual Property and several questions may arise, such as-
- Is the IP valuable enough to be protected?
- Why take/waste the efforts and resource to protect the IP?
- What if I stay put and simply enjoy the IP?
All the aforementioned questions are answered below.
Is the IP valuable enough to be protected?
A Start-up’s IP may be anything ranging from a newly invented know-how/invention that is banked upon to run the very business or simply the brand which would be the identity of the Start-up or some creative content like literary, dramatic, cinematography, artistic or sound recording work. These are only a few broad examples. In all the cases, your Start-up would revolve around your IP in one way or the other and managing and protecting the same might actually decide the ground for you.
Why take/waste the efforts and resource to protect the IP? What if I stay put and simply enjoy the IP?
Let’s take an interesting example – Imagine you have invented the transportation machine by which you can get transported from one place to another within moments (a.k.a Harry Potter style). Obviously, you would intend to cash in on the said technology/machine and you decide to enter into a Joint venture with another entity and disclose all the details relating to your machine/technology in good faith without any reservation.
One fine day, you find that the other entity no longer needs you in the Project and surprise of all surprises, that entity is already underway to use the technology, claiming ownership for the same. Of course you can fight this out legally, which would take years altogether, by which time your Start-up would, in all probability, have turned to dust.
Another example – You have created a brand/mark for a product and your whole business revolves around it. But getting trademark registration for the mark/brand just slipped your mind and then out of the blue, you come across another mark which has an uncanny resemblance to your own brand. With no trademark registration backing for the mark, you will have to battle with the other party to prove that you are a bonafide owner of the mark and that you are genuinely using it prior to the other person.
Another scenario is where you author a book or create a design and in each case, protection of the IP becomes crucial. Else it is better to be prepared for third parties to hijack your IP and more importantly, the financial openings that your IP would have laid at your doorstep.
The Reasons in a Nutshell
1) Your IP is your brainchild and for this sole reason, it deserves protection.
2) Your very idea of initiating a business/Start-up might have sprung from your IP or in due course, your Start-Up might come to bank upon an invention or a trademark or other original, creative content. So even to get the Start-up thriving and running, protecting your IP is imperative.
2b) As a joinder to the above, your IP might be capable of financially feeding you and your Start-up like royalty for invention licensed to a third party or a franchise and continued protection of the IP is what ensures that the financial inflow does not cease.
3) Where you disclose your IP to third parties without protecting it first, you would only engage in legal battles to prove your ownership to the IP, which is not only time-consuming but will end up swallowing your very Start-up with the financial burden, not to mention the mental agony it brings with it.
Hence it would be prudent to take the effort and protect your IP as soon as creating it rather than disclose and take desperate efforts to hold on to it later.
There is no end to IP protection
Be it a Patent, Trademark, Copyright, Design or other forms of IP, the protection process does not end as soon as you register the IP. IP protection is a continuous process. For one, renewal of your IP (where applicable) as and when it arises, is a must do. Comprehensive information on renewal of trademarks by my colleagues could be found here.
Once you have an official entitlement to your IP, the next step is to stay vigilant to ensure that no person attempts to hijack/infringe it, let’s say by using similar technology/deceptively similar mark/similar piece of work. This is in most cases, entrusted to IP counsels who would have a better idea as to what might pose a threat to your IP. In this situation, you have a better edge since you will not have the necessity to prove your title, which is the most important point to be established.
Driving home the point, in respect of trademarks, where a person has a registration for a mark and a third party has a mark deceptively similar; a suit for infringement (more about infringement could be found here) can be filed and in such a suit, only the deceptively similarity is required to be proven. On the other hand, where the mark is not registered, a passing off action can only be initiated, in which case, not only deceptive similarity, but likelihood of deception/confusion is also required to be proved. This of course is certainly not an easy task.
IP for Inviting Problem or Invaluable Protection
The above would certainly give a fair idea as to why it is imperative to protect IP before disclosure to any person. And there are various ways to protect your IP which would, inter alia, depend upon the nature of IP and other surrounding factors. You could always write to us to know ways to protect your IP. You could either protect it or wait for others to protect it..in their name of course.
Original content of the above blog can be read at: https://selvams.com/blog/startups-need-protect-ip-disclosing/