The role of intellectual property in start-ups

The Covid-19 pandemic has led to many firsts for businesses and individuals globally. Many people have become entrepreneurs for the first time, some out of necessity and others out of aspirations to complement existing income streams.

The profile of a start-up venture is never uniform—some businesses are team led, others are solely operated, some offer products and services that are relatively unique, while others offer products and services that are already easily available in consumer markets. Is there any use for intellectual property in start-ups? Let’s look at three ways that intellectual property can be useful in start-up ventures.

Copyright protection: software applications and animation-type businesses

Interest in digital technology and digital platforms has fuelled an increase in demand for various types of software applications and animated videos from diverse stakeholders. Start-ups that are in this space can use copyright protection to safeguard the proprietary content of their creations. Copyright protects literary works, of which computer software and software applications are a sub-set of these rights. As long as the eligibility criteria is met (that is, the work has some degree of originality, is created by a person and is not an idea but an expression), copyright usually subsists in these works.

Registration of copyright is optional and is not available in all countries. However, registration does not prevent infringement. If you are a technology start-up whose major consumer market is abroad, it may be helpful to register your technology copyright in those countries, where such registration is available. Copyright registration is comparatively affordable compared to other types of intellectual property registrations. Important as well is how you secure your software copyright. A well-drafted non-disclosure agreement can be helpful to your business as a means of protecting your technology-based copyright.

Do not rule out patenting the software

The current era is highly focused on artificial intelligence, machine learning and other emerging technologies such as blockchains platforms as an aspect of service and product offerings. Software applications may be patentable if they fit the criteria for patent registrability. Never delay querying from a qualified legal expert if your software application is patentable, and if so, what steps you can take to patent your technology. This is often an expensive procedure. However, there are at least two ways of mitigating the cost at the outset. Learn how to do prior art searches well, thereby reducing the initial transaction costs in the process. The prior art search seeks to answer the question of whether your software is novel, invalid and whether you have the freedom to operate in the market. Secondly, the World Intellectual Property Organisation (WIPO) Green offers useful resources in assisting start-ups (green-focused start-ups) in getting their technology to market. The WIPO Green website also lists qualified experts in the area, some of whom offer initial pro-bono services to technology-based entrepreneurs.

A trademark is not just about mitigating counterfeits

If your start-up sees trademarks as an afterthought—you may need to rethink your business strategy. Trademarks not only convey specific brand information about a product or service. Trademarks can become the most valued asset of your business, driven by factors such as the reputation or goodwill of your business in its consumer markets.

An intellectual property valuation reveals the value apportioned to a business’s intangible content. From a valuation context, it can be a useful collateral in securing a loan for your business. Start building value to your trademark early by aligning trademark management with your other business goals. One sound trademark strategy is to apply an out of the box approach to how you position trademark commercialisation and management in your start-up.

Many countries are moving away from requiring a mark to have been used in commerce before the proprietor can apply for a trademark.

This trajectory is helpful to start-ups as it means that the proprietor can seek trademark registration in the early stages of the business.

In addition, Trinidad and Tobago recently signed on to the Madrid Protocol. The Madrid Protocol is an international trademark treaty which enables member countries to file one trademark application to effect registration in multiple countries. Multiple trademark registrations may be useful to start-ups whose clients are in diverse overseas markets.

Takeaway point

Global consumers markets can become saturated very easily. Therefore, each plan in your business strategy needs to be sound—and make practical sense in the long term. The use of IP in start-ups can make good business sense, including in its early stages. Incorporating an IP strategy as an aspect of an entrepreneur’s overall business approach may be an action plan worth pursuing.

For contributing this article, the Trinidad and Tobago Chamber of Industry and Commerce thanks Marsha Simone Cadogan, Consultant, Canaan Bridges Consulting Inc; MSC Intellectual Property & Technology Law.

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