Having a proactive approach to your IP portfolio is vital when it comes to enforcing your rights as an owner. Registering before even launching your business will give you significant leverage when negotiating deals that will bring in a more diverse stream as well as the tools you need to pursue infringers. The longer you wait to register your IP once you’ve published it, the more at risk you are of others using it without your consent.
Without the right registration(s), your IP may not protect you the way you hoped. Some of the pitfalls you can encounter when you put off registering your intellectual property are:
Common law is a body of unwritten laws set as a precedent by the courts. It derives from past cases and looks at the similarities between each one to ascertain the characteristics and rights that assets should have for just existing based on the others before them. While your IP is “protected” by Common law the moment it comes into existence it is an unstable way of protection.
When you rely merely on common law to look after your IP you risk being not only not protected in all the states that your business operates. Because it stems from prior court decisions, the scope of protection changes and it is not applicable to all 50 states in the same way, and in some cases, it doesn’t give you any protection at all.
As a business owner, you’ve worked hard to develop your branding, website, and other important company property, and now you’re ready to launch your business (or you’ve already launched). Then, out of the blue, you get an email from an attorney with a cease and desist letter attached, explaining you are infringing on someone else’s intellectual property. You are scared and panicked. “How could this be?!” You build your business with your own ideas, dreams, and passion. “There is no way I’m infringing on someone else’s IP!… is there?”
In situations like these, it doesn’t matter if your infringement wasn’t on purpose. The cast majority of cases involve innocent infringement, but the outcome can still have devastating consequences for the person accused of infringement. The best way to prevent something like this from happening is to know what you have. The only way to know what you have is to review all of your company’s assets and analyze it. Ultimately, this will be much less costly than changing your entire brand because you inadvertently infringed.
If you don’t know how to analyze your own intellectual property and determine whether it may be infringing on someone else’s, hiring a qualified intellectual property attorney is the best way to accomplish this. While it can sometimes seem as though the investment isn’t worth it until you’ve reached a certain stage in business, most businesses accused of infringement are in the beginning phases, then have to go through the costly process of rebranding or removing something that is currently making them business. Talk about taking the wind out of your sails!
Even with an overview of your intellectual property, infringement still happens. Registrations don’t stop people from stealing. The key to enforcing your rights is having the right registrations for your intellectual property. Registrations give you the ability to enforce your rights under federal law. Without registrations, you’re stuck relying on common law. And, as we mentioned already, common law sometimes provides no protection at all.
Failing to register your intellectual property will prevent you from filing a lawsuit, which can set you back months (sometimes years) and cost you thousands of dollars. Not only that, sometimes failing to register can prevent you from collecting damages as a result of the injury suffered by the infringement. Dealing with infringement of unregistered materials is also more stressful for business owners, because it requires a larger investment up front (to address the infringement itself and perfect your rights via registration). Having registered intellectual property gives you more options and a clearer path forward from the start.
Most businesses are looking for opportunities to leverage their intellectual property. Often, this is through various deals like brand partnerships, endorsements, and licensing. And these deals always move fast. When you are negotiating with a large potential partner (like a big box store or retailer, for example), they often will try and obtain certain rights to your intellectual property you don’t want to give up. It is much harder to reserve certain rights for yourself when your intellectual property is not registered. What’s more, when a large partner learns you have not taken the steps to properly protect yourself, it may further reduce your negotiating power or lose you the deal altogether. Control of your IP is critical when negotitating deals.
Maybe your plan is to register your IP once a brand approaches you and start the process then. This is a bad idea, because registrations can take months, sometimes years to issue. That lag time can cost you the deal. The best way to negotiate a big deal for yourself is to come prepared in advance. And that means have your registrations in order.
We know this process can feel overwhelming, and that’s why working with a qualified intellectual property attorney is the best way to protect your business and realize your IP’s potential. If you don’t have any registrations, don’t know where to start or which to prioritize, and don’t know how to budget for any of this, our Roadmap to IP consultation will help guide you.
In one hour, we will review your IP portfolio and help you prioritize which registrations you need first. If you already have registrations, we will review them and make sure you don’t need more, or confirm they still protect you based on your business’ current offerings.
Q4 is the perfect time to do this, so you walk into 2023 aware of your business’ most valuable asset’s possibilities and understand next steps.
This article is presented by Trestle Law APC, www.trestlelaw.com and may be considered Attorney Advertising. It is intended to provide general information and is not intended to be specific legal advice and it does not create an attorney-client relationship. If you’re interested in talking to a Trestle Law attorney about your IP-generating business, copyrights, a licensing deal, or your brand and trademark strategy, you’re welcome to schedule a discovery call.
Kristen is the Founder & Managing Attorney at Trestle Law, APC. A California-based intellectual property attorney who helps business owners build a bridge from their brands to their bank accounts.