Introducing 9 mistakes that are more common than fixable…
Intellectual Property (IP) is an essential aspect of any business and can be a valuable asset.
However, making common IP mistakes that seem like “small missteps” can lead to the loss of your rights and large lawyer’s bills when the damage that has been caused needs fixing (if possible).
🧡To help you avoid making these mistakes, I’ve outlined nine common IP mistakes that every business should avoid.🧡
1. Avoid the No. 1 mistake – not understanding intellectual property rights and their uses
Understanding the difference between copyright, patent, and trademark can be challenging…
Many businesses fail to understand the differences, which often leads to mistakes or decisions that can result in the loss of IP rights – or even worse, infringement of 3rd party rights. So it is absolutely key to understand what protects what.
Although there are more things to consider than copyrights, patents, and trademarks, knowing what is what and what it protects is the first step.
Here is a quick rundown: Copyright protects original authored or artistic works, patents protect inventions (technology, physical products), and trademarks protect unique names, logos, or slogans.
Let’s look at three fictive mistakes-examples 😎 :
A) An inventor, before filing a patent application, shared their innovation with industry partners and potential investors.
The inventor was unaware that publicly disclosing their invention before filing a patent application results in losing the right to obtain a patent and protect their intellectual property. He believed that the copyright to the description of their invention would protect them and give them the right to file a patent later.
B) A small business owner named “Tasty Treats” created a unique logo to promote their bakery products. They shared the logo design with a friend, not realizing the risk, and that turned into reality; The friend went on and registered this logo as their trademark.
Tasty Treats then tried to register the logo as their trademark but discovered that they couldn’t succeed due to the existing trademark registration.
C) An online business owner named “Decor Delights” learned that someone copied their website design and images. They wanted to take legal action, but they had used templates from other online entrepreneurs and didn’t create a trademarkable business or product name.
They had no proof of copyright or infringement of the same and struggled to convince anyone – even their own lawyers- that copycat has to be stopped.
Decor Delights spent a lot of resources on a lost cause and were exhausted by the time they found out that they were not copied according to the law. So much time and money are wasted because of the lack of knowledge.
2. A common mistake that seems small yet can be challenging: Protecting too late…
And when it is, it often comes as a surprise that the name you want to protect has to live up to certain requirements in the law.
Failure to do so may lead to ownership disputes and lost business opportunities.
Fictive mistake example😎:
A bakery named “Bite Bakery” has been using a unique slogan, “Bite into our Delicious Delights,” to market its products. A competitor starts using a similar slogan, “Bite into Delightful Baked Treats,” creating confusion and competition.
If Bite Bakery had registered the slogan as a trademark, it could have stopped the competitor from using a similar slogan.
However, whether the slogan is unique enough to be protectable under the respective national and international laws is uncertain.
If they had investigated it first, they could have made necessary adaptions to the slogan to make it their own and register it.
Please note, though, that in some countries, it might be possible to win a case based on other competition laws – nevertheless – when you start to build a brand with a name, slogan, or visual – while it is still building up.
No matter where your business is growing, this remains true anyway: Once you are a success, the copycats are close. This is not the time to be unsure about your rights or to start thinking about them. Start early – prepare for your success.
3. A mistake that hurts many entrepreneurs: choosing a name – even when the domain is taken
A website domain is a valuable IP asset that should be secured. A keyword or location in the domain name can increase its value, but it’s essential to avoid infringing on any Intellectual Property Rights. Choosing a business or product name with a domain name that is taken is often a decision that is not good for the business.
Fictive example illustrating this type of mistake 😎 :
An e-commerce business called “Mega Mart” is looking to establish its online presence.
It wants to create its website domain name, but a similar domain name, “MegaMartOnline.com” already exists. So they registered “MegaMartOnline.dk” leading to confusion among customers and an angry “MegaMartOnline.com”-domain name owner.
If Mega Mart had consulted an IP lawyer or investigated domain name regulations, they could have avoided confusion and angry competitors. Now they had to rebrand and figure out how to get through the conflict without damaging their reputation (even more).
4. Mistaken or mislead? Don’t listen to the DYI-GURU when you need a patent
Understanding the basics of patent law is important because patents can be expensive to obtain – yet so valuable to own.
You want to make sure they protect what needs protection – and not what’s irrelevant for your current and future marketed products.
Because patents provide essential protection for inventions, every technology-based business must understand the patentability requirements, requirements for the patent application, and its filing process.
Patents are not difficult as such. However, they need to be “done well.” Budget accordingly and hire an expert to support you. If you want to do more on your own – educate yourself!
Fictive error example 😎:
A startup called “Tech Solutions” wants to protect its innovative technology product from competitors.
It decides to file a patent application, but without understanding and from preparing the patent application process.
The responsible folks did not consult a patent attorney and followed the guidance of an online inventor selling DYI patent application courses. They wanted to save money.
This resulted in a rejected application and no saved money- instead, huge bills without any useful rights in return and misspent time and frustrations on top.
This could have been avoided if they had hired patent professional coaches or mentors (like me ) to take courses to learn what patent applications require.
→ With these preparatory coaching opportunities, you can prepare for the work that you and your patent attorney have to do when drafting the application. You will still save a large part of the attorney’s bill; however, you should never skip a professional’s hands-on drafting service.
Please note: Anyone can make such courses and mentoring sessions, so it is important to look for the right educational background. For e.g., in Europe, I would only take courses and advice from European Patent Attorneys.
5. Relying on loyalty alone is not great for business and is a dangerous mistake
Businesses should have employee and consultant confidentiality and IP agreements in place to avoid disputes over ownership of work products and know-how.
Although many countries have general laws that control the ownership of IP* – a contract and specific agreement is often a good choice. Why? Because it streamlines things across country borders – and aligns expectations on both sides. The contract has to follow the law to be valid.
*In most countries, the IP right belongs to the employer if the IP was created during employment and within the job description. However, this is highly dependent on the country and the job functions)
It’s essential to define each party’s rights and expectations and secure your IP rights.
Fictive pitfall-example 😎:
A software development company “Code Genie” hires a new team member to work on a business-critical project.
The team member creates a unique code for the project but without an IP agreement in place. A dispute between the employee and employer arises.
Who owns the rights to the code? And what would the situation be if the employee was a hired consultant?
Let’s stop here – the conclusion for this one is. Align the expectations clearly before working and creating with employees or consultants.
6. Disregarding others’ rights to avoid knowing about them is a huge mistake
Investigating pre-existing content or rights before using them or marketing them as a “part” of the product is a huge mistake that can be expensive and lead to irreparable damage to the business’s finances and reputation.
Failing to investigate pre-existing content can lead to legal issues, costly litigation, and damage to your brand’s reputation.
It’s essential to investigate who owns the content or features that you are about to incorporate, what rights the owner holds, and whether these are valid – and for how long – before using them.
Fictive mistake example 😎:
A blogger wants to publish a blog post on photography tips and uses images from a professional photographer’s website without asking for permission.
The blogger will likely be facing legal action for copyright infringement if the photographer knows their rights, spots the infringement, and takes legal action.
7. Being too loose about your trade secret protection is a mistake that can ruin your business
Trade secrets are valuable assets that require active protection. Once a Trade secret is out – it’s no longer a secret – and no longer an asset.
Businesses should establish policies to control and limit access to trade secrets, have confidentiality provisions in place, and establish procedures to prove trade secrets and restricted access to this valuable knowledge or insight.
Only then can they rely on the laws that provide means for damage payments by the abusing party.
Fictive example 😎:
A beverage company, “Brew Buzz” has a secret ingredient that gives its product a unique flavor.
The Brewery has to ensure that the recipe is kept confidential to protect its trade secret from competitors who may try to copy the formula.
They have to share it with the people who need to know the ingredient to make the brew, yet they also need to understand the legal consequences if they do not keep it a secret now – and if they move on to a new employer – or open their own brewery.
8. Don’t mistake infringement for “fair use”
Fair use rules in the U.S. (and similar rules in other countries and regions) allow limited use of someone else’s work without permission, but businesses should be careful not to exceed fair-use limits and unintentionally violate someone else’s IP rights. Fair use regulations do not permit commercial abuse of others’ rights or defamation…
Fictive example 😎:
A social media manager for a company uses a popular meme in the company’s social media post without permission.
This violates someone else’s IP rights and leads to legal issues because the IP owner does not consider the meme fair use.
This could have been avoided by asking for permission – or making a new photo for the meme.
9. It’s a mistake not to plan for your future success
What is an IP exit strategy?
An IP exit strategy is when a business secures its assets with IP, making sure that they protect your assets, products, and everything that someone else would buy and invest in.
With such rights and documentation, the assets can be sold, licensed, or transferred to be owned or used by someone else.
Not having one is a mistake – not only because it makes it possible to “look good” in the eye of potential partners and investors – but also because it helps a growing business consider what “the big and successful businesses want and do.” Only when you understand what they want and do can you position yourself like for similar success.
Businesses should, therefore, have an audit procedure so they at all times can list their rights, know-how, and current projects to enable their own business to enforce these rights, plan how to prevent and defend against IP disputes and make it a breeze to transfer them to others, if that is an option in the future.
Fictive and super short mistakes-example 😎:
A technology company “Innovate Inc.” plans to sell its patent portfolio to another company.
Without an IP exit strategy in place, the company can not prove any assets or ownership thereof and will likely not get the payment they deserve for the technology because it is not insured “enough” for the investors.
