This is a guest blog by Sharon Toerek, an intellectual property and marketing law attorney with a national practice based in Cleveland. She is also the publisher of the marketing industry legal blog Legal + Creative.



If you’re a marketing, advertising, or creative services professional, you might believe you are in the business of helping your company or client sell their products, grow their brand awareness or educate their customers. The truth is that while one or all of these things might be your end goal, you’re actually in the idea business.

Marketing professionals create new concepts, brands, educational content, and sometimes new technology, every day. Each of these begin as ideas that can result in valuable intellectual property. So, why should marketers care about this? These 3 reasons rise to the top of my list:

  1. Intellectual Property is Currency. Intellectual Property is an intangible; however it is an “ownable” asset that is as valuable as it is protected.  Some examples: Do you have an original brand name or logo?  Have you developed an original software program or mobile application?  Both are types of intellectual property that increase in value when secured by appropriate trademark, copyright or patent protection, and both can also be licensed for money to other parties.  For many small companies, IP is the most significant asset on the balance sheet, and its owners are totally unaware of this fact.
  2. Failing to Secure Intellectual Property Costs Time and Money. Sometimes a Lot.  Proactively securing intellectual property with appropriate registrations and contracts is far less expensive and time consuming than litigating ownership or infringement disputes later.  My heart breaks a little for every marketing agency who calls me to say their client loves a new brand that has been discovered, late in development, to conflict with some else’s trademark.  Likewise for every marketer who has paid for custom created technology but has nothing in writing addressing its ownership.  These misunderstandings or missed steps cost time, money, and damaged customer relationships that no business can afford in today’s economic environment.
  3. Intellectual Property Ownership Doesn’t “Follow the Money.” It seems highly illogical in the commercial world; however simply paying for creation of intellectual property by a third party doesn’t mean you own the rights to it. What?  It’s complicated, but U.S. copyright law requires a transfer of rights, in writing, from any third party who creates original work for you (not an issue if your employee created the work in the scope of employment). In today’s freelance, virtual-work, independent contractor-friendly world, it’s an issue that has to be addressed. And if you’re a creative services or marketing agency, IP transfer and ownership is a necessary part of any agency-client services agreement.   

These are just a few reasons marketers need to care about IP.  We’ll discuss these and more during an upcoming webinar presented by Traklight on January 14, 2014.  Go here for more details.

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