It’s a new year, which hopefully breeds a new and refreshed mindset for protecting your IP.
Here are a couple of New Year’s resolutions to keep in mind, relating to your intellectual property matters, whether for a start-up or an established business:
1. Treat trademarks as identifying adjectives rather than using them as replacement terms of the products or service you are offering for sale in order to avoid genericizing the mark.
Once a trademark is used generically, a trademark owner may have to take aggressive measures to regain the strength of the mark, such as when Xerox corporation used extensive public relations campaigns, advising consumers to “photocopy” instead of “xerox” documents.
2. Evaluate your company’s current direction for your product(s)/service(s) and how they impact the company’s fiscal health so that you can adjust your IP protection by changing strategies involving licensing, enforcement, and/or marketing.
For example, if you are receiving cease-and-desist letters regarding a certain product or service, conduct a cost-benefit analysis and communicate it to your legal counsel before deciding whether or not to invest the fees contesting the allegations or to just change the mark.
3. File patent, copyright, and trademark applications only after performing initial steps in assuring that the IP protection sought is not already under someone else’s protection. It is better to spend the up-front cost to be sure that the IP protection sought will not infringe upon another’s rights and will most likely be granted than to be surprised by a potential lawsuit down the line and spend even more money on resolving the problem.
However, obtaining IP protection does have its costs as well, so seek effective and efficient means, such as filing a lower cost provisional patent application, while determining the marketability of the innovation.
4. Do not forget that your IP attorney is your advocate and needs to know all the facts in order to provide you with the best advice. Many times, clients tend to reserve the facts that may not be in their favor, hoping that the attorney will give the green light not realizing that big problems may later arise.
5. Remember that your IP portfolio is not only insurance, but also “property.” Intellectual property functions similarly to real property, and like some real property, over time the value may increase and you may want to sell it or license it in the future.
Be proactive in asking your attorney what strategies you can implement to mine the untapped value of your IP!