The Traklight Blog

As a small business owner with intellectual property (IP), you have to leverage your assets to work for you. We have talked a number of times about the importance of protecting your IP and the necessary steps to achieve that end. The next step involves making the IP generate capital in more ways than just product sales. You may at times need to enter into an agreement with a third party with respect to that intellectual property. There are a number of different types of agreements that affect IP.

Obtaining a patent not only protects your company but increases your valuation. Given the advantages, it’s no wonder there are dozens of kits and quick online services calling for inventors to file patents. The process of getting a patent with the help of The United States Patent and Trademark Office (USPTO) is relatively simple in principle.  Advertising wants you to believe in their quick routes to obtaining patents, but it entails a little more work than that.

In a nutshell here is how to patent an idea:

By now, you've certainly heard the terms 'intellectual property' and 'IP' bandied about. We live in a time of creative wonder, where anyone with a great idea and access to technology has the potential to disrupt the market. In such a world intellectual property carries more weight than its tangible counterparts. But does everyone understand how the concept and terms originated? Do you? There is a long and fascinating history behind the copyrighting of human creations. Here are a few things you might not already know about IP law.

Architectural design is protected by copyright law. But we have mentioned before that taking photographs of public buildings are completely legal (as long as you are taking photographs in a public space it’s all fair game). No one will come slap you with copyright infringement if you publish a photograph of yourself in front of the Statue of Liberty. But you might be in trouble if you take a photograph of another classic French structure at night, the Eiffel Tower.

Facing increasing disapproval from international bodies as well as other countries, China has finally decided to take action to show the world that it is indeed willing to protect intellectual property (IP) rights. China is all set to open a specialized court to deal entirely with IP issues in Beijing within the month. It also plans to open two other similar courts within the year in Shanghai and Guangzhou.

If intellectual property (IP) was a rock band, then a patent would definitely be the lead singer. This is not to say they are better than other forms of IP, just the face of it, and an important one if applicable to your IP. An investor is more likely to be impressed with an IP portfolio with patents than without.

The Greek philosopher Heraclitus once said, “Nothing is constant, but change.” This applies markedly to the fashion industry. Style is a constantly evolving phenomenon. We laughed at the clothes our parents wore but it’s not long till our children start mocking the clothes we wear. Each generation etches its own signature in the ebbs of time but one product has stood out amongst the rest. Something that our grandparents wore while playing basketball, our parents wore while being rebels and listening to punk, and something most of us have worn at some point in our lives. 

If you have been anywhere near Traklight or its members, protecting and leveraging your intellectual property (IP) has probably been drilled into your head so many times you have started reciting ‘work for hire’ and non-disclosure provisions in your sleep. Although there are many advantages to protecting your IP, let’s delve into how you can make money off of it, specifically in terms of licensing your intellectual property.

The Indian Prime Minister, Narendra Modi, ended his US tour on October 1st following a packed Madison Square Garden speech and successful visit to the White House. Out of the many things on the agenda, intellectual property (IP) seemed to be a major consideration. He planned to encourage more foreign investment from America with his theme of "declaring India open for business."

Last week saw two popular artists file a complaint for copyright infringement.

Eminem, the Detroit rapper who rocked the world with his hard hitting rhymes is suing the National Party of New Zealand for using the music for his hit song "Lose Yourself" in a campaign video. The campaign video to promote John Key, who is up for re-election, has since been taken down but the National Party rejected the allegations leveled against it stating the music was taken from the Beatbox library and, although similar, is not identical nor does it include any lyrics.

The complaint has been filed in Wellington, New Zealand. Hopefully the High Court will recognize the importance of respecting foreign copyrights, certainly considering how important the New Zealand legal system considers intellectual property rights. A spokesman for Eminem’s publisher stated, “It is both disappointing and sadly ironic that the political party responsible for championing the rights of music publishers in New Zealand by the introduction of the three strikes copyright reforms should itself have so little regard for copyright.” Lose Yourself has been licensed to only a handful of companies and certainly not to any political party as the publishers are against such usage.

Intellectual property (IP) protection is necessary. But with rights comes responsibility; a responsibility to not misuse such rights. Automattic, the web publishing platform most famous for Wordpress, uploaded a ‘Hall of Shame’ list after getting tired of its users being harassed by copyright and trademark infringement notices. Wordpress is a free blogging tool and content management system. As with any site uploading content there are bound to be intellectual property issues from time to time but not all have merit.

At Traklight we are all about protecting intellectual property, but understanding when you have an actual cause of action is equally important as needless litigation wastes time and effort, while giving you a bad reputation in the market (assuming you do not have a legitimate claim). Creation of IP rights is to protect against exploitation, not curb the freedom of speech. Among the various people/ companies on Automattic’s list is Janet Jackson. Her lawyers attempted to remove / control all references of her on Wordpress. One of the claims included trademark infringement for using her name in the following blog “Dinner Party Conversation: What would your WWE Smackdown name be?”:

Disney has been known to aggressively protect its intellectual property (IP) in the past and the latest IP issue involving mouse ears is no different. People familiar with electronic dance music (EDM) are no stranger to the music of DeadMau5. Joel Zimmerman, the man behind the mask, is an established producer from Canada that has been performing and selling records for over 10 years now. He has trademarks over his mouse themed logo, known as Mau5head, in over 30 countries.

 The ALS Ice Bucket Challenge took America by storm a month ago and has since gained momentum internationally as well. Amyotrophic Lateral Sclerosis (ALS), also known as Lou Gehrig's disease, is a debilitating illness that affects nerve cells in the brain and the spinal cord. The progressive degeneration eventually leads to death and there is still no cure.

Who'd have thought that a trademark controversy would have ensued over this charitable awareness campaign?

While seeking funding from investors or being acquired, the first step most third parties conduct is due diligence. Diligence is basically an in-depth review of a business’ official and legal documents. In case of startups composed predominantly of intellectual property, diligence is conducted to assure that the intellectual property actually belongs to them, preventing future infringement suits or licensing deals. Keeping your documents in order is a very important part of running a successful business.

Previously in our Intellectual Property (IP) Best Practices series, we introduced step nine to maximizing your IP: don't infringe. Check back next Monday for a bonus tip, the last of this series. Don't miss it!

Finally, what all this blog series has been leading up to: Be prepared. Using a good strategy to protect intellectual property enables a company to leverage the maximum value of created IP to boost a business’s valuation. But before investing or conducting business, a third party will always want to conduct its own due diligence to: (1) ascertain whether you actually have ownership of the IP you purport to own, and (2) determine what risks using your IP may entail.

Monkeys and humans are similar in more ways than one: we have opposable thumbs, share a majority of DNA, and evidently, love taking selfies. Back in 2011, British photographer David Slater travelled to Indonesia to take photographs of black crested macaques. In a not-so-surprising turn of events, the macaques completely disregarded Slater’s setup and started playing with one of his cameras that produced the photo under controversy: a selfie of a grinning macaque that garnered much internet craze and went viral. The photo found its way onto Wikimedia commons where it is free to download and use and, despite Slater’s removal notices, has been kept in the public domain. Wikimedia has stated that Slater does not own the rights of the photograph as he did not take the photo but the macaque did. On the website where the photo is available for download the license states that,

“...this file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested.”

This raises an interesting question regarding copyright ownership. So who legally owns the photo in question?

Previously in our Intellectual Property (IP) Best Practices series, we introduced step eight to maximizing your IP: regular IP audits. Please check back every Monday for the next part in this series.

As important as protecting intellectual property (IP) is, it is just as important not to infringe upon someone else’s IP. Not only is it morally wrong tantamount to theft, the expense following an infringement suit can run high. This may seem painfully obvious, but a number of people who infringe do so unknowingly or believe they did not need a license or permission. Ignorance of the law is not an excuse. Entrepreneurs and startups need to allocate funds wisely; IP litigation is not where you want to be spending your time and resources.

When we think about intellectual property (IP) we think about copyrights, trademarks, or patents. Trade dress is never the first thing that pops up during heated IP law debates (yes, at Traklight we have heated IP law debates). Trade dress is often overlooked but worth understanding. It is the protection afforded for a particular form of packaging used by a company that attains secondary meaning.

But a form of packaging that has been used by a company in the industry for a number of years alone cannot be protected under trade dress. Some uniqueness must be present and the packaging must not be functional. Furthermore, the packaging, coloring, so on and so forth, must confuse and mislead a consumer. Under Section 43(a) of the Lanham Act, trade dress is protected even if it is not formally registered. Although it is distinguishable from trademarks, service marks and trade names, a number of companies opt to trademark their trade dress, such as Coca-Cola, as it provides a number of additional benefits.

Previously in our Intellectual Property (IP) Best Practices series, we introduced step seven to maximizing your IP: discovering employee created IP. Please check back every Monday for the next part in this series.

Conducting regular intellectual property audits is integral to a successful IP strategy. A company is comparable to a living organism: if taken care of and provided the right nutrition, it grows. As companies scale, the same policies and compliance procedures that may have worked when the team consisted of a handful of employees, may not work in a larger company.

Previously in our Intellectual Property (IP) Best Practices series, we introduced step six to managing your IP: well-drafted agreements. Please check back every Monday for the next step in this series.

Intellectual property (IP) is continuously created in all innovative companies so if a proper discovery and disclosure protocol is not in place, employees may disclose IP by mistake. It is important to establish a process by which discovery becomes a regular affair. One of the best way for a business to ensure compliance is to provide incentives for employees to come forth proactively.