What Every Startup Founder Should Know About Intellectual Property

by Tyler Droste

We see it all the time: startup founders ignore the importance of intellectual property (IP) and begin going about their business. Then, they run into trouble down the road. Infringements, misappropriation, ownership disputes, and ultimately lawsuits are enough to stop any startup in its tracks.

That's why registering IP with the appropriate governmental organizations is totally worth it. We'd even go as far as saying it's one of the first things you should do when starting a company (after forming the entity and determining ownership, of course). But, we don't want to make it sound too straightforward because there's a lot to consider when protecting your IP. We could go on and on, but that wouldn't be any fun. So, we'll just hit you with the basics. The stuff you really need to be thinking about as a startup founder.

Let's get down to it then.

First, it’s important to note the world of IP covers just about every creation of the mind used in commerce you can think of, such as inventions, designs, literary and artistic works, symbols, names, and images. So, it's pretty likely your startup has some form of intellectual property to protect. As we mentioned above, forming the entity is a crucial first step for any startup, but it's equally as important to ensure all current and future intellectual property is assigned in writing from any employees or founders to the company (we'll get into this later).

When it comes to intellectual property itself there are quite a few types of protections available depending upon the company and its products or services (i.e., patents, copyright, trademarks, and trade secrets). Ideally, a company would seek protection in all facets of IP law, but in reality, startups may not have the budget to simultaneously pursue every type of protection. The questions is then, where should you put your focus? Do you need to protect it all right away? Maybe not. An IP lawyer can help you identify what type of protection is right for you and when it's necessary. We're not just saying that, either.

It's important for founders to know something as foundational as your company's name should be considered intellectual property. In some instances, the name or brand of the company may be the primary asset (i.e., think most apparel companies). It's not only important to register your trademark with the USPTO to aid in preventing use by others, but it also gives you some confirmation if you're allowed to use it yourself. The last thing you want is to start doing business under a name in which you later find out is already owned by someone else. Remember: just because you've registered your corporate name DOES NOT necessarily mean you can use it.

Other company assets such as your logomark, design elements, and of course, proprietary inventions and technologies should a primary focus of protection, as well. In some cases, your ideas should be the first thing you protect, especially if your company's future go-to-market plan, revenue, etc. relies upon those ideas. But your ideas don’t just stop and start with you – they also extend to your employees and independent contractors you may seek to help with developing your idea. That's why it's worth preparing employment and/or independent contractor agreements for the assignment of any IP from the employee or independent contractor to the company. Assigning all IP rights to the company provides assurance that the company is the actual owner of the IP assets, and in the unfortunate situation where a founder or employee were to leave, there is not an ownership dispute relating to the IP assets. This is particularly important when startups are seeking to raise money or are looking for investors.

Similarly, it may be important to have a non-disclosure/confidentiality agreement in place when meeting with prospective investors, employees, or service provides you may engage. You wouldn't want anyone running away with ideas they created on your company's dime.

So that's it. These are the things we think every startup founder should know about IP, and as you can tell, there's a lot to it. Does it sound like your company is in need of IP protection? Even if you're not sure, give us a call. We can help you sort it out. We can be reached at 317.777.7920. For more information on our IP services, visit our website: http://gutweinlaw.com/intellectual-property.

***One last note to our startup founders tied to a University: As you may already know, as an employee or student, the University in which you're affiliated may have some claim to ownership of your IP, so be sure to keep that in mind. Also, it may be necessary to secure appropriate licenses from the University to use the IP. Again, if you need help navigating this, give us a shout – we'd be more than happy to help.