IP Considerations: Why They Are Always Important

IPConsiderationsWhyTheyAreAlwaysImportant

There are a number and variety of considerations to evaluate when it comes to intellectual property ("IP") protections. On a base level, the core issues are what you want to protect and where you want to protect it. From that point, an attorney will want to consider what types of protections would provide the best and broadest coverage, while also weighing those considerations against costs and related concerns. And during that whole time you need to ensure that you actually own or control the IP.

In the United States, and around the world, copyrights protect works of creative authorship (e.g., pictures, music, writing, software code), patents protect new inventions (e.g., machines, electrical devices, pharmaceuticals, methods and processes), design patents cover the ornamental design characteristics of useful items (e.g., the design of a computer, the user interface of a website, the design and ornamentation of a device, etc.), trademarks protect distinctive subject matter that indicates the source of goods or services (e.g., a logo, name, colors, sounds, or even scents-like brown for UPS, NBC chimes, etc.), and trade secrets protections cover formulae, practices, processes, designs, instruments, patterns, commercial methods, or compilations of information (e.g., client pipelines) which is not generally known or reasonably ascertainable by others, and by which a business can obtain an economic advantage over competitors or customers.

Some IP can be protected using multiple methods, while other IP can really only be protected through agreements with third parties and ensuring it is kept confidential.

The key is ownership or at least control, and to understand how to measure protections against resources and to determine what is the best strategy for securing core protections and protecting business and personal interests. IP is all about priority in time and whether you seek protection before anyone else for that creation, invention, trademark, or know-how. These protections are an investment, and in the long run, will protect your business interests and your wallet. It costs ten times or even more to litigate over ownership or use of IP than it does to seek protections and ownership in the first place.

An unfortunate example that happens time and again is when you choose a name for your business (i.e., a trademark) and you learn that someone else used the name or a confusingly similar name first and you may be liable to that other party for all your profits to that point.

Imagine if you have a full order of products in a warehouse ready to go to distributors and you can't sell them because of potential liability or even a restraining order. Even more, when that party forces you to enter legal proceedings to resolve the matter your legal fees are for protection against liability and resolution of the issue, not investing in an actual asset (e.g., a trademark registration you can leverage). Defense against and resolution of these matters takes time and can be very expensive.

The same goes for an invention in which you invest time and energy into development and marketing. In the case of inventions, you might have problems with your business name and also the invention you want to market. Dealing with those legal issues together would drive the cost up even more. Investing that same money in protections would secure your IP and protect you against third party claims.

In a country and world of innovation, creativity, and business competition, carving out an identity and protecting assets is crucial. Secure them today to avoid issues in the future.

William R SamuelsWILLIAM R. SAMUELS
212-206-9399
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