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Mar 28, 2020

Are you an entrepreneur? A creative? or do you plan on starting a business soon?

Well, you don’t want to miss this Podisode (Podcast + episode) because we’re going to be discussing Common Intellectual Property (IP) Misconceptions and Mistakes that are ruining businesses.

The inability to properly identify the intellectual property of your business gives rise to many misconception about IP that are ruining startups and small businesses today. This is why in today’s podisode, we are going to be discussing some common misconceptions startups should avoid in their approach to IP.

Show Note/Transcript (Excerpts from this episode)

The first Common misconception I’ll be addressing is:

The assumption that small businesses don’t have any intellectual property

This can’t be farther from the truth because every business no matter how small always has an intangible asset or intellectual property of its own. 

For example, let’s talk about business branding such as your company’s name and logo or product name , these are all valuable intangible assets that need protection because they serve as unique identifiers that distinguish a business from its competitors. Usually a company’s name or product name is the first interaction a consumer has with the brand and like I said, it helps differentiate your business from other competitors in the market. 

You’ll agree that there are some very popular companies out there that when you hear their names- it already tells you everything you need to know about who they are and what they do. For example, if you hear the name SAMSUNG anywhere in the world, you know it’s one of the best technology manufacturers in the market and they are known for producing high quality android phones and other gadgets. So if you see a Samsung branded phone anywhere, you’ll have a certain  perception and expectation of that Samsung product or phone.

So brand names are very powerful intangible assets that need protection. Apart from company names, customer list can be categorized as trade secrets which are recognized IP rights that can be protected.

Also, company slogans can be protected through trademarks. I’m sure we all know of one or two unique and distinctive slogans that we typically associate with certain brands.

For example, we usually associate the Nike Sportware brand with it’s infamous uniquely designed “tick logo” and its catchy slogan “just do it.”

Nike- Just Do It- Logo and Slogan  The Nike’s “Just do it” slogan is used in many (if not all) of their viral advertisement campaigns. And is arguably one of Nike’s key brand identifiers. Once you see the tick logo design or the just do it slogan, even without seeing the name, you will already know that the product is associated with the Nike brand. 

Other examples:

MTN: “everywhere you go” 

Red Bull: “it gives you wings” 

LG: "life is good"

Peak Milk: "It's in you"

To sum it all up, your company’s name or logo, customer list, and even slogans form part of intellectual properties of your business that needs protection.

The belief that IP only deals with trademarks copyrights and patents

This limited understanding of intellectual property can be very problematic for your business because you will be unable to adequately identify the IP of your business and how best to protect it.

So the issue here is that most people believe that IP only deals with trademarks, copyrights and patents which isn’t true.

Intellectual property goes beyond the basic understanding of copyrights, patent and trademarks that most people are accustomed to. There are other forms of IP Rights that most people aren’t aware of such as; Industrial Design, Related Rights, Geographical Indications, Trade Secrets and many more. 

Beyond that, IP can manifest in every day business arrangements which may expose the IP of your company to further risks- In situations where a business has to share business ideas with another parties for funding or enter into independent contractor’s agreement or employment agreements, the Company’s IP can be exposed to risks in such situations even without knowing.

A typical example of this is a work for hire agreement to design a logo for your company. Especially, where a proper agreement is absent, the contractor, not the business, owns the contracted work and can in the future, lay claims to the logo even if the contractor was paid for the logo design. 

The fact that money was paid to the contractor does not guarantee the company ownership of the logo. 

This can be particularly difficult for start ups and small businesses especially if they have started gaining recognition with their brand’s logo because they might have to change their logo or risk infringement.

Having inadequate documentation 

Like I mentioned earlier, in normal business operations, Entrepreneurs or business owners will find themselves in situations where they have to share business ideas with outsiders or outsource business functions which typically exposes the Company’s IP to risks.

So it’s very important for businesses to have proper documentation in order to mitigate those risks, protect their IP rights and ensure that ownership is properly granted to the business. 

For instance, having a non disclosure agreement helps to enforce business confidentiality controls. Especially, when businesses are entering into independent contract agreements or work for hire agreements it’s important to implement appropriate confidentiality controls.

A well drafted NDA should properly define what “confidential information," means, its terms, what it includes, what it excludes and its duration. The NDA should also specify its limitations on use or any implied license for IP under the NDA and the return or destruction of such confidential information. Rather than getting a random NDA agreement off the internet, a well business-tailored NDA will be best for startups.

The outcome of of ignoring such reasonable controls are almost always detrimental to businesses in the long run. 

Now to the final point,

Failing to invest in an IP Counsel to develop and implement an IP strategy for your business 

In my opinion, this is the biggest mistake any startup can make. The failure to develop (or execute on) a well-thought-out IP strategy can be very fatal to startups. 

With the help of an IP counsel in creating an effective IP strategy for your business, a startup becomes an attractive option for investors looking to fund a well-coordinated venture due to the mitigated risks of counterfeiting, the competitive advantage of protected innovation. and the added value from these liquid assets.

I’m aware of the fact that most startups try to minimize spending because of their limited funds. However, the cost in procuring an IP counsel is most times insignificant in comparison to the amount spent on needless litigation or negotiations that could have been avoided.

The last thing a young business needs is spending time and it’s scarce resources on issues that could have been avoided by implementing (and enforcing) reasonable IP strategies from the onset.

When investors are interested in investing in a company, they look for a company’s IP portfolio. Investors think of IP as a competitive advantage against competitors. If businesses have a lenient attitude towards IP, they are likely to miss out on a golden opportunity for the growth of their business.

So engaging a qualified IP counsel to create an IP plan and execute it over time is crucial to the success of your business.


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