This article is sponsored by Smart & Biggar.
It’s every entrepreneur’s worst nightmare.
After spending countless hours developing and refining an idea, it’s finally time to bring a product to market. But far too often, what should be the most exciting time for a startup is swiftly derailed by an avoidable legal dispute over a brand name or copyright, or a costly patent infringement claim.
Conducting the proper trademark and patentability searches, as well as filing for intellectual property protection for any product names and patentable inventions, can both secure a company’s intangible assets and ensure they aren’t crossing into a competitor’s territory, says Jamie-Lynn Kraft, a senior associate at Smart & Biggar, Canada’s largest intellectual property law firm.
“Having a strong and protected brand helps build value for a company and creates trust and loyalty with your customers,” she says. “Being aware of your own intellectual property – as well as that of others – early on sets you up for success in the future.”
Here are three steps businesses can take to proactively protect their IP while avoiding a costly legal battle:
Do your research on brand names
One of the easiest ways to safeguard your business from an IP claim or lawsuit is to do some initial research on existing trademarks before advancing too far with a brand name.
A quick online search – or a more in-depth search and analysis undertaken by a qualified IP lawyer – can give you a pretty clear picture if your product name, branding or concept already exists, says Kraft.
“There are free databases online including Google or through the Canadian Intellectual Property Office (CIPO) that can help you narrow down your marketing team's ideas before heading to a lawyer for a deeper search,” she says. “The test for trademark infringement is whether a name, logo or slogan is likely to be confused with an existing one, which can be a tough question. That’s when you need the insight of an experienced trademark lawyer.”
By starting this process in the early stages of branding, teams can give themselves enough time to make any necessary changes.
Start the patent process early
Companies should start thinking about filing their patents during the ideation phase to ensure they are securing a competitive advantage, says Natalie Galley, a patent practitioner and associate at Smart & Biggar.
Ideally, companies should start by searching for any existing patents for similar technology or products before a full product is underway, since it can save a great deal of time and effort to make changes earlier rather than later in the development process. They should also consider seeking legal advice and investing in what’s known in legal circles as a “freedom to operate” or FTO analysis to identify risks from competitors, as well as gaps and opportunities to exploit.
Companies should also be looking at protecting their idea(s) before seeking outside funding from investors or widely publicizing the concept, she adds.
“A lot of people have this misconception that a patent is something you get at the finish line, but you actually need to start the process a lot sooner,” she says.
Canada like many countries has a ‘first to file’ patent system, which means it’s often a race to the patent office in competitive industries where technology is key to business value.
Filing a provisional patent gives entrepreneurs the flexibility to continue to adapt and tweak their idea for up to a year before having to file a full patent application.
This can be an extremely useful tool to safeguard any early stage ideas, while giving the inventor the time to perfect the product.
Make IP a part of your business
Protecting and monitoring IP isn’t something a company can “set and forget,” says Kraft.
Implementing an IP strategy can help ensure the entire team understands the company's IP goals, guiding principles and growth strategy for the future, as well as how IP integrates into the everyday workflow.
“Get your marketing team, your engineers and your legal team talking,” says Kraft. “Establish a policy that outlines how to register a new brand name, the timeline it will take and how that will be communicated going forward.”
For technology, research and development teams should also have a process for documenting inventions and securing these along with any confidential trade secrets.
While it may seem like a lengthy – and at times intimidating – process, protecting intellectual property can save a company time and money, says Galley.
“People shouldn’t be as intimidated by patents and trademarks because they can be really valuable tools to help you grow and develop a competitive business,” she adds. “It takes dedication to fully protect your intellectual property, but when you do, it can be absolutely worth it.”
The team at Smart & Biggar can help businesses establish an internal IP strategy that can maximize the effectiveness of their patents and trademarks to give the company a competitive edge.
And, with a strategic plan in place, companies can use their IP assets to leverage business partnerships and drive sustainable growth.
A crash course in brand protection and IP
Get a more in-depth look at how to establish – and protect – a company's brand at an upcoming online IP masterclass hosted by Jamie-Lynn Kraft through Invest Ottawa.