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Protecting what’s yours

What entrepreneurs need to know about intellectual property issues    

By Thomas C. Saitta

Among the many concerns facing entrepreneurs, protection of intellectual property (IP) and IP issues in general are often overlooked—especially during the start-up phase.

While some trademark, copyright, and patent issues may be addressed down the road, an early awareness of IP issues can be beneficial to all entrepreneurs.

Trademarks

After weeks of brainstorming, you have decided on the perfect name for your new business or product. The good news is that you are not required to get any sort of government permission to use your mark—you can spend thousands of dollars on new signs, brochures, menus, packaging for the product, etc. and spread the word far and wide.

The bad news is that if you have not performed a trademark search, you may shortly receive a demand letter from the owner of an identical or similar mark insisting that you stop using the mark. You are now faced with the choice of fighting for the mark in court or rebranding your service or product—both of which will likely entail significant costs.

Additionally, while you receive certain limited common-law protections merely by use of your chosen mark, you should also explore the benefits of registering your mark either within the state or federally. Registration of a trademark puts others on constructive notice of your rights, and a federal registration in the U.S. Patent and Trademark Office can extend your rights throughout the country and enable you to secure international protection.

Copyrights

If you create an original work in a fixed expression (write a song, book, or manual, or create a website, for example), you should determine whether registering the work with the Copyright Office would be useful. The process is relatively straightforward, and registration can be valuable in certain instances.

Another copyright issue that often arises is the question of ownership of software and website content when the software or website is developed by an independent contractor. As strange as it may seem, you do not automatically own the software or website copyright even though you have paid a third party to produce it for you.

Still another concern with websites is the issue of unauthorized use of photographs taken from other sources. It is a common occurrence for website developers to use copyrighted photographs without obtaining permission from the copyright owner, and it is the owner of the website that usually ends up paying for this infringement.

Patents

If your new venture includes an invention, then you must pursue patent protection for your product. A patent gives the inventor the right to stop others from making, using, or selling the invention, which gives value to the invention by precluding competition or by allowing the rights to be licensed or assigned to third parties.

In a business enterprise, the issue of employee inventions made on the job should be addressed in an employment contract to avoid ownership disputes.

Words of wisdom

A final word of advice: The old saying that it’s better to spend a little money now rather than a lot of money later applies in the IP world. Seeking advice from an experienced IP attorney before problems arise will almost always be money well spent.

Thomas C. Saitta is a registered patent attorney and board certified in intellectual property law. He is head of the intellectual property department at Rogers Towers P.A. in Jacksonville, Fla., and can be reached at 904-346-5518, TSaitta@rtlaw.com, or through www.rtlaw.com.


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