Why You Should Protect Your Intellectual Property Before Market Entry

The world is a global village and the internet has opened up business spaces to all consumers in all corners of the global village. With many small businesses realizing the importance of an online presence and adopting digital marketing strategies to promote their goods and services, the need to protect intellectual property (IP) is even more crucial. Every business needs an IP strategy to stay competitive, but an IP strategy is even more crucial for small businesses who can get their wings crushed before they take flight in the market.

Costs to secure your small business can rack up even before you make your first sale. IP is one of the necessary pillars in building a strong business foundation. Just as you would prepare a foundation before you start constructing a building, you must prepare a foundation for your business. Building your business on a weak foundation is a recipe for disaster, not to mention financial ruin.

Validating your business idea is important. It is worth it to test the market with whatever goods or service you are planning to sell because otherwise you could spend your time and resources developing something that the market does not want. However, before you rush to market with your idea, search the market for potential IP risks. Is your idea similar, in name or content, to something that already exists? If something similar exists, then you need to think of ways to distinguish your offer and make it original. 

After conducting due diligence on your IP risks, the next thing to do is to protect your business IP. If your business is not based on an invention, then protecting your trademark will probably be at the top of the list. A trademark is any word, phrase, symbol, design, or sound, that distinguishes your goods and services from others in the marketplace. Your trademark is the dress in which your goods or service shows up in the marketplace. You want it to stand out, you don’t want to look or sound like everybody else. Think of it like dressing up for a party for which you want to make a grand entrance and leave a lasting impression. Part of your branding involves trademarks. What you may see as a harmless choice may be seen as an infringement by an existing trademark owner. This is why research is important.

In the US, there are two ways to apply for trademark protection. You can file a “use-in-commerce” application or an “intent-to-use” application. As the names suggest, a “use-in-commerce” application is for marks already in use on your goods/services, while an “intent-to-use” application is for marks not yet in use but there is a genuine intent beyond an idea to use the mark for your goods/services. An “intent-to-use” application is good to use when you are taking preparatory steps to enter the market and want to defend against faster players who may have the same idea but have more resources to quickly enter the market. Another advantage to filing on an “intent-to-use” basis is to establish date priority over subsequent applications that may be the same or similar to yours. The USPTO gives you six months to get yourself together and launch your product for use-in-commerce. If after those six months you still are not ready, you can apply for an extension in six-month increments until you reach the maximum 36 months. 

It is important to know that trademarks must be in use for protection to remain valid. A trademark owner can lose their trademark for non-use. Use of a trademark must be made in the ordinary course of business. If a mark has not been in use with the goods/services specified in the registration for a period of three consecutive years, and there is evidence to show that the trademark owner intends to resume use of the mark for those goods or services, then the registration may be cancelled on the grounds of abandonment. Note, that the mark has to be in continuous use for the goods or services for which it was registered to qualify as being “in use.”

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