INTELLECTUAL PROPERTY BASICS FOR START-UPS

We all recognize that this is the season for startups.? Because of the globally disruptive pandemic, everyone—even those establishments which we have thought of as, well, ‘established’ – has to start anew.? We all want to recover from the sickness that enveloped our planet.? We want to recover quickly and we want to recover well.? In time, it will be up to these startups to pave the way towards economic recovery and we would want to look back later and thank them for rekindling economic growth.

In the meantime, we will have to help these startups in whatever way we can so that they may be able to grow, bloom and thrive.? In order for them to be able to do whatever it is they do best in the niche that they have chosen, we will have to pitch in and assist them so that their seeds will sprout.

As an intellectual property advocate, I wish to offer the following strategies that could help startups grow and develop while avoiding the common pitfalls.

1-????? Utilize as many forms of intellectual property as you can.? A business enterprise is often supported by several types of intellectual properties--? trademarks for your brand and logos; patents for your innovative inventions are just the more common.? Your business may also have copyrights on the software you have developed for business process and marketing materials such as fliers, pamphlets, tarpaulins, menus and store decorative materials.? Promotional materials, cups, holders, tumblers, caps, covers and the like may also be eligible for utility model or industrial design protection.? Make sure you use all forms of intellectual property as you possibly can, develop and protect them in order to be able to grow and expand your business.?

2-????? Clear your marks first.? Avoid using and developing a mark that has not been checked.? Before you say “on your mark, ready, set go!” with your brand promotion strategies, it is best to have the trademark you plan to use cleared first by an intellectual property advisor.? Why?? Because you might be using and developing a mark which can never be yours, or worse, that will give you headaches later on because it is owned by another.? Some marks can not be registered, such as those that are described as ‘generic’ marks, as well as those which are against public order and morality.? There is a whole list of marks that you may not be able to use and still a lot more marks owned by other people and which marks will no longer be yours, and hence, clearing the mark you plan to use with an intellectual property advisor may help you avoid these ‘no-go’ marks.? Better yet, have your trademarks registered before launching your brand campaign, so that you are sure that your mark is registrable.?

3-????? Have a Non-Disclosure Agreement (NDA) Prepared for Your Enterprise.? Especially at start-up, you will be meeting with people in order to recruit possible partners for financing, operations expertise, marketing and sales campaigns, technical strategies and all other requirements that your business may have.? Before disclosing anything to these potential business partners, have an NDA crafted that is fit for your business, not just with respect to its intellectual property but also with regard to the other trade secrets that may be divulged.? This will protect your burgeoning business from being nipped in the bud by competitors disguised as potential partners.? Of course, proper due diligence is also key when selecting potential partners.

4-????? Avoid Public Disclosure of Patentable Matter.? If your enterprise’ technologies or innovation seem to be patentable, avoid public disclosure.?? As much as possible, consult your intellectual property advisor with regard to possible patenting and the timeline for disclosures.? In some countries like the Philippines, there is a ‘non-prejudicial disclosure period’ within which you should file a patent application once you publish your work.? Otherwise, your invention goes into the public domain and you will no longer be able to hold a patent for it.? Make sure you file a patent application during this non-prejudicial disclosure period if you want to keep your IP.

5-????? Your Intellectual Property is Your Asset.? Much intellectual property exist for commercialization or to assist an enterprise in its commercial development.? Recognize that your intellectual property is an asset which may be sold, transferred and assigned or licensed out.? It is thus to your business’ advantage that you develop as much intellectual property as possible.? For example, a collection of intellectual properties such as a business’ marks, its copyrights on its publicity, advertising and training materials, its innovative technologies whether patents or utility models, its various industrial designs as well as its trade secrets can all be combined and offered for franchising in order to expand and raise capital for a business.? Hence, formulation and development of intellectual property should be one of the goals of a business enterprise, similar to its goals of placing cash in the bank.

Keep these in mind when you sit down with your business partners and potential partners to outline how you will develop your business.? Intellectual property development should work hand-in-hand with your marketing campaigns and business development planning.? I will be posting some more intellectual property strategies for start-ups in more detail, so stay tuned!

If you have any questions, don’t be shy and drop me a line!

~o0o~

This article is intended for informational purposes only and should not be considered as legal advice.