Every business has both tangible and intangible assets. Most businesses have a strategy to protect their tangible assets – they have security systems, insurance policies, and operations policies to protect their business against losses from theft or destruction of tangible assets. But not many small businesses give their intellectual property (IP) the attention it deserves. It is not enough to register a trademark or include the copyright symbol in copyrightable work and then close your eyes. Your IP strategy must include the right business contracts and operations policies to protect everything in your IP portfolio, from trademarks to trade secrets. For your business IP to have any value, you must have an intentional IP strategy.
Why is it important to have an IP strategy for your business? Because as a small business, IP probably represents a huge component of your business’s value. Without an IP strategy your business could face losses from failure to protect your IP AND from exposure to third-party IP used in the business. Creating an IP strategy for your business is an intentional process to protect and harness what you own, and prevent liability caused by infringing on third-party IP.
Recently, Apple lost a bid to stop Swiss watchmaker Swatch from trademarking “One More Thing.” In some IP forums that I belong to, there were virtual high fives in support of Swatch because Apple keeps a very vigilant eye on its IP and has sometimes in the past come off as an IP bully. In 2020, Apple went after a small business, Prepear, opposing the trademark registration of the company’s pear logo. Prepear’s business focuses on meal planning for kids and adults. What remains baffling with this case is the fact that the two companies do not operate in the same class so it’s difficult to see where any likely confusion would come from. But Apple saw a problem and seems to have got its way with Prepear agreeing to amend its logo.
While you may not want to be as aggressive as the likes of Apple, it is important to remain vigilant about potential infringements on your intellectual property. Policing your IP as aggressively as Apple requires deep pockets which small businesses do not have. But, you should know what your competitors and others in your niche are doing so that you do not inadvertently infringe on their IP rights, and also so that you can uncover infringements on your IP rights and take immediate action. This is why it is important to have an IP strategy for your business. Your IP strategy will outline your defensive and offensive lines of action to protect your IP.
Trademark law requires that trademark owners actively defend their marks or they forfeit the right to make future claims, so it is up to you and your business to decide how aggressively you will defend your trademark and other IP. In fact, there’s a legal maxim that states that “equity aids the vigilant, not those who sleep on their rights.” In other words, the law comes to the aid of those who are vigilant with their rights, and not those who sleep on their rights. Basically, you snooze, you lose.
Read the article on How to Manage Your Intellectual Property for some tips about managing your IP.
