So you have the understanding that your intellectual property needs to be protected – what’s next?
The following steps somewhat depend on how ready you are to commercialise your intellectual property. If you are ready to make your intellectual property work for you, this article provides you with three further steps to take.
Foresight is everything
There is a saying that failing to plan means planning to fail. This is especially true for intellectual property matters. Just as a couple in love does not want to think about what happens during a divorce, start-ups or businesses starting up and entrepreneurs are not always keen on establishing their relationships with their employees or key partners officially and seldom think of worst-case scenarios.
Even though this is not a pleasant exercise to perform, this should be done nonetheless. If things go smoothly and you never need to rely on intellectual property clauses of a contract, that is great. However, if you do need to rely on these clauses, you will be thanking yourself that these were inserted.
Without the clauses regulating intellectual property ownership and the rights connected, the road to clarity is long and may be very costly. So, in order to avoid disagreements and to ensure that the intellectual property is truly yours, plan ahead and treat your best friend, new hire, a seasoned partner or a fresh collaborator in the same manner and do not let your emotions get the best of you.
Set goals and achieve them
After you have clearly set the conditions of intellectual property ownership and the possible fail-safes, you are only halfway there. The benefit of action with a clear goal and ways to achieve and monitor it, is clearly greater in a situation where a strategy is in place.
This should also be the case for intellectual property. Intellectual property strategy helps you connect and direct the activities in a way that allows intellectual property to create value.
While establishing a strategy, a good starting point is to identify the correct intellectual property rationales.
These are closely related to the company’s business model – a mass-production company selling products and services will have one set of intellectual property rationales, while those of a technology start-up may be completely different.
While coming up with an intellectual property strategy, the need to change and adapt the strategy should be kept in mind. The strategy should be overlooked from time to time to make sure that all the rights are managed in the best possible way and to ascertain that everything is covered. Reviewing the strategy might also mean that some rights should be abandoned or taken out of the spotlight – whilst this can be a painful decision to make, it should be done to optimise the costs and benefits.
So, in order to make the most of your intellectual property, do not be afraid to set goals which intellectual property should help to achieve and set up a model for assessing this.
Monitor and enforce
Intellectual property rights are negative rights – they give the owner the right to prevent anyone else from benefiting from these rights. This in turn means that it is yours as the owner’s task to monitor and enforce your rights.
If you do not look out for your intellectual property rights and their misuse, nobody else will. Monitoring the use of your intellectual property and enforcement of your intellectual property rights is costly, both time and money-wise but it is the lesser of two evils.
Insufficient or absent monitoring and enforcement can lead to the loss of customers, goodwill and revenue.
As if your job as an intellectual property rights holder was not difficult enough, you also need to be mindful of and monitor how you yourself use your intellectual property. In worst case scenarios, this can lead to you losing your rights altogether.
You do not want to end up losing your trademark rights as has happened to Bayer with “aspirin”, Otis with “escalator” and may happen to Google regarding the use of “to google”. So, both internal and external monitoring processes are crucial to securing your intellectual property.
Nevertheless, this is not the end of the road. After you have taken all these steps, you need to start all over again. As intellectual property is created every day, new measures and new strategies need to be developed constantly and there is no time to sit back and relax.
If proper intellectual property protection is in place, you can and will reap the rewards in the process.
Kati Pino is an Associate at Magnusson Law with a focus on Intellectual Property; Commercial; Corporate and M&A; EU and Competition.
Magnusson Law is a dynamic and modern international law firm that advises clients doing business in and across the Baltic Sea Region.