New Year or New Tears?

C- Level Magazine January 2014

Resolve to protect and profit from your intellectual property this year. Protect your ideas, names, products and services with the right tools: trademarks, copyrights, patents, trade secrets or a combination. Once these basics are in place, you are ready to increase profits!

We have started the new year, hitting the ground running, growing business and finding new avenues for sales. Many are upgrading their overall visibility, especially on the Internet. As you cast a wider net, you will also bring in copiers and imitators. What could go wrong, you say, with increased visibility? Alas, lots! Not protecting your IP and publicizing it can invite its theft by competitors or its “dedication” to the public!

A local manufacturer recently spotted a competitor using his carefully selected new name – and worse yet, discovered that the competitor had filed a trademark on his hip new name! Delaying filing a trademark can easily cost 10 times as much as preemptively filing before you let the name out to the public. Investigating and filing a trademark application are your first steps to protecting that cool new name.

Is a new app from a developer on your New Years’ to-do list? You instruct the developer on what’s needed generally, and you may even direct her on how you want the app to work. The developer almost always furnishes a standard contract. Have an IP attorney review it to make sure that you will actually own the app when it is done. Too often programming costs overrun, and if your agreement does not include your ownership of the IP, you may be asked to pay even more to actually own the app for which you thought you paid. Don’t be fooled by the phrase “work for hire,” which actually refers to work done by a hired employee, not a contractor. To prove that a contractor’s programming is a “work for hire” is costly litigation. Nail down the status up front.

Another sad example of failing to pre-emptively protect IP is an Internet service that set up an online community. The proprietor was pleased to see its readership grow and become recognized in its industry. Unfortunately, he forgot to register the clever names he was using. After the online community had thrived for a year, a “member” of the community sent the proprietor an announcement that he was getting a trademark certificate for the proprietor’s name. At that point, the proprietor contacted an IP attorney who gave him several options, including fighting the trademark application for several thousand dollars, claiming “common law” trademark rights among the community and fighting the interloper for market, etc., – none of them cheap. A little foresight would have avoided the problem entirely. To add insult to injury, the interloper is trading on the proprietor’s reputation: The interloper’s system cheapens the very services the proprietor created to facilitate fair prices.

As you upgrade your website, you add video and music. Be very careful as to the source of the video and music. Using more than a couple of seconds of video or music can fetch you a copyright infringement suit. Before you use a clip, obtain an attorney’s advice and be sure to get the permission of the owner of the music and/or video. You will almost always get a better deal negotiating before use, than if the copyright holder sends you a threatening letter to pay up after! A few years ago, images were not easily searchable on the net and individuals were not punished for copying. However, newer programs detect copying (inadvertently or not) and elicit fines from copyright owners. One website owner who offered to feature a colleague’s article and head shot was sent a copyrighted image which she used and for which she received a demand letter.

Make sure the new year does not bring new tears!

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