If you’ve got a startup, there’s no shortage of reasons to protect your intellectual property. From defending against future legal challenges to providing evidence of your market credentials to potential investors, safeguarding your intellectual property is a sound commercial move.
What’s more, early-stage companies that take their intellectual property seriously are shown to outperform the pack when it comes to standard measures of startup success, such as IPOs or acquisitions. Indeed, a 2018 study by the United States Patent and Trademark Office (USPTO) identified a positive correlation between companies that filed early for trademark protection and future company growth.
It may not feel like a top priority for your busy startup, but understanding how to get a patent and how to trademark your logo will prove a worthwhile investment in the long run. Let’s take a closer look at what you need to know about protecting your startup’s intellectual property.
The purpose of a patent is to grant you the right to exclude others from making, using, or selling your invention for a limited period.
Preparation is key to a successful patent application. Prior to filing with the United States Patent and Trademark Office, it’s important to perform due diligence. Scrutinize your invention from all angles, asking such questions as:
While the prospect of being the first to file is alluring, public evidence of similar past inventions is considered “prior art” and may impede your ability to successfully secure a patent. Therefore it can be advantageous to perform a search for existing technologies before investing in a patent application. Licensed patent attorneys and agents can assist in performing these types of searches and assessing your chances of success in achieving a patent on your invention so you can make an informed investment.
Depending on the nature of your invention, there are three types of patents from which to choose, each covering distinct subject matter. Utility patents are the most common kind of patent, and cover what a product or process does, while design patents are intended to protect the way a product looks. The third type of patent is a plant patent which, as the name implies, covers new and distinctive plants.
There are two types of utility patent applications—provisional and non-provisional. Provisional applications are informal filings that operate as a place holder for a subsequent, more formal non-provisional application. The subsequent non-provisional application must be filed within one year of the provisional filing to get the benefit of the earlier filing date. A provisional application can allow the inventor to file a quick patent application and delay the cost of the more formal non-provisional application. This grace period can also help protect an invention from competitors while prototypes are prepared and the non-provisional patent application is being completed.
Utility patents normally last for 20 years from the date of filing, while design patents are good for 15 years. To keep an issued utility patent alive during this term, regular maintenance fees must be paid. Maintenance fees are not required for design or plant patents.
The application process for a patent is detailed, but your startup should not be deterred from embarking on it. The USPTO website offers a helpful overview of the patent process. Although you can file a patent application yourself, it is advisable to engage a registered patent attorney or agent to guide you through the process.
Protecting your intellectual property and making sure a competitor doesn’t run away with your invention should be a paramount consideration for any startup striving for success.
Registering a trademark can give you the exclusive right to use your company’s brand name and logo in relation to your business.
Seeking trademark protection may feel like an obvious move for larger companies, but startups must similarly consider the benefits of securing trademarks early in their growth journey. In addition to protecting your trademarks from competitor infringement, registering your company marks can help build brand identity, generate goodwill among your customer base, and justify your pricing in the marketplace.
Also, remember that brand identity helps drive strong marketing, a central element to startup success. Is there a unicorn in existence that didn’t have a great marketing strategy in place to help reach its billion dollar valuation?
In its study of firms that proactively register their trademarks, the USPTO is also clear about the benefits of protection. It points to a correlation between higher growth and those companies that seek trademark protection early in their operations.
According to the study, “Firms that ﬁle in their ﬁrst year of existence tend to have a very diﬀerent growth trajectory compared to non-trademark ﬁling ﬁrms.” The study identified revenue levels three times higher within five years of filing for those firms that did file compared to those companies that did not protect their marks. Companies that sought trademark registration were also significantly more likely to file for a patent or undertake R&D compared to the average U.S. firm.
For detailed instructions on how to trademark your company name and logo in the United States, the U.S. Patent and Trademark Office is the place to start. The trademark section of the USPTO website provides a wealth of resources about how to file and what to expect, including informational videos and handy FAQs. As with a patent application, you can conduct a comprehensive trademark search prior to filing to make sure you’re not unknowingly treading on someone else’s already trademarked territory. The USPTO network of Patent and Trademark Resource Centers is another excellent resource to explore.
For companies that operate within a single state, it may be possible to file for trademark protection at the state level. However, trademark protection as granted federally through the USPTO is generally seen as the wiser choice for most companies.
And although companies can claim trademark protections under common law (as conveyed by the commonly seen ™ symbol), the legal certainties afforded by taking the necessary steps to formally register a trademark (indicated by the ® symbol) are usually worth the while. Generally, registered trademarks don’t expire provided they are in use, renewed every 10 years, and all applicable maintenance fees and proof of use filings are completed.
One further element of intellectual property to consider is copyright. Copyright formally confers authorship rights for creative works, such as software, manuals, and photography.
As with trademarks, common law affords copyright protections to authors even without a formal registration. However, registering your company’s creative works with the United States Copyright Office is a smart preventive step against copyright violation. Copyright protections extend for many decades, as many as 95 years from the date of publication for works made for hire, and do not require renewal.
The difference between copyright and trademark protection is an important distinction to grasp. In the case of a company logo, the former protects against unwarranted copying, whereas trademark protection protects against other businesses using your mark, or sufficiently similar marks, in a way that might produce confusion in the mind of a reasonable consumer.
And while you’re carefully protecting your company’s creative works, be diligent in securing the rights to use other people’s work—such as photographs—in your own marketing materials. One exception is for works created by, or on behalf of, U.S. federal bodies, which are automatically considered in the public domain.
Being proactive about protecting your startup’s intellectual property makes good business sense.
The rest of the world would appear to agree. Internationally, patent and trademark applications have experienced robust growth in recent years, particularly in Asian countries. According to the World Intellectual Property Organization, patent offices located in Asia received 65.1% of all applications filed worldwide in 2017, in what it describes as “a considerable increase from 49.7% in 2007, primarily driven by growth in China.”
In an increasingly global marketplace, strong intellectual property protections are necessary to ensure competitiveness for your startup. They may even prove indicative of your chances for an acquisition or IPO. According to the USPTO study, “Recent research indicates that having a patent or a trademark application is highly correlated with the ultimate success of an early entrepreneurship activity, as measured by rare events such as an IPO or a high-value acquisition.”
If you’re still deliberating about how to get a trademark or whether to file for a patent, now might be a good time to take the leap. Explore some of the resources in this article for more details on what the process entails, and confer with an intellectual property legal expert for further advice.
Also, remember that protecting your intellectual property is just one aspect of laying the foundations for your future growth. At UPS, we understand the logistical realities of building and scaling every aspect of a startup.
Sign up for a virtual consultation with a UPS business solutions expert or email us at firstname.lastname@example.org, and let’s work together in planning your logistics and preparing your startup for long-term success.
This article is for informational purposes only. It does not constitute legal advice. Recipient has sole responsibility for determining the usability of any information provided herein. Before recipient acts on the information, recipient should seek professional advice regarding its applicability to the recipient’s specific circumstances.
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