A quick quiz over company branding. What comes to mind when I say, “Swoosh?” When I say, “Arches?”
Intellectual property – the work or design that results from creativity – is valuable to businesses, and not just giants like Nike with its swoosh and McDonald’s with its golden arches. In the professional speaking world where I spend a lot of time, speakers develop catch phrases, systems, processes, and ways of analyzing information. So much of businesses these days is related to intellectual property. And it’s not changing. It’s not just technology. It’s the storage systems, the processing systems, and the devices that we use to access the internet. They all use intellectual property.
The world is growing more conceptual as assembly becomes easier with mechanization and the rise of artificial intelligence. What do we do with it all? The blanket advice you may hear from lawyers is, “Protect all your intellectual property. Copyright, register, trademark, et cetera.”
But that doesn’t fly in the real world. The costs are too high for the revenues. So, what does a growing or emerging business do with its intellectual property?
#1. Use trade secrets. Protect as much as you can internally with trade secrets. This is great for how to do things, perhaps customer lists and the ways you collect and use information. It’s an inexpensive way to protect your intellectual property like processes and employee confidentiality agreements. But for an outward-facing intellectual property, you will end up sharing it. Here’s where we have to get real.
#2. Take risks. As a small company, particularly a growing company, you probably cannot fight off a bigger business that may try to steal your great intellectual property. Realize even if you have the funds and resources to register the intellectual property, you may not have the money to defend it. You must be nimble. That means taking risks.
This is like every business decision you make. Figure out what you’re willing to expose without the most perfect of protections. You’ll probably pick up some common law just by using and publishing the information. You may get rights to copyright, and you certainly may start to build toward registration of intellectual property merely by publishing and using it. But you have to know you’re taking the risk that someone may try to claim your intellectual property. The practical answer is you probably will risk the potential of losing your intellectual property.
#3. Know what’s most valuable. For those things that are fundamental to your business – your one or two core pieces of intellectual property – spend your money. That name, that logo, that one way you do things like nobody else, that is what you probably want to spend your money on to protect.
Focus on protecting a handful of core items and take a risk on the rest. This isn’t a great answer, and it’s certainly not a textbook solution. But you must balance the risk of losing property against the cost of the protection. This is one of many business decisions. It’s simply a risk-reward calculation. Lawyers don’t like to think this way, but it’s what we have to do in the real business world.
What are your thoughts? Have you struggled with this? Join us in the comments below and let us know about your experience.
This posting is intended to be a tool to familiarize readers with some of the issues discussed herein. This is not meant to be a comprehensive discussion and additional details should be discussed with your attorneys, accountants, consultants, bankers and other business planners who can provide advice for your circumstances. This article should not be treated as legal advice to any person or entity. Freeimages.com/Photographer rsvstks.
About the Author
Shawn McBride — R. Shawn McBride is the Managing Member of The R. Shawn McBride Law Firm, PLLC. Shawn works successful, private business owners in their growth and missions to make a company that stands the test of time. You can email R. Shawn McBride or call (214) 418-0258.
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