Whether you’re an established company or a start-up venture, protecting your company’s intellectual property is paramount.
In the new techonomy, information and know-how are kings, whether you have a dot-com after your name or not. Complicating the race for information and know-how is a tight labor market and the struggle to find and retain quality employees.
The product and market information you create and obtain is developed by and entrusted to your employees. Your methods of doing business, product development, even profit margins are available, at the very least, to your key personnel.
What happens if they leave, if a competitor lures them away or the entrepreneurial bug bites them? Does that information, know-how and competitive edge go with them? Maybe, depending upon how you have protected your assets.
A semiannual or annual review of your intellectual property inventory, policies and procedures is a proactive means of protecting those assets. Below are several areas to consider when evaluating your own policies and procedures:
Noncompetition agreements
Losing a key employee to a competitor can put a company in a vulnerable position. Noncompetition agreements are enforceable to the extent that they protect legitimate business interests. What that means is that noncompetition agreements can protect your company if they are properly designed.
Careful drafting, proper consideration and inclusion of key terms are of critical importance. Perhaps the only thing worse than not having a noncompetition agreement is having one that is unenforceable.
Confidentiality/nondisclosure agreements
A confidentiality/nondisclosure agreement is a simple and useful tool. It requires you to evaluate your company’s inventory of trade secrets and confidential and proprietary information and secures your employees’ obligation to protect those assets.
The law will categorize information as trade secret, confidential and/or proprietary, each with a different set of protections. It is important to identify which of your information falls within each of the categories. Equally important to a comprehensive and well-drafted agreement is the implementation of policies and procedures to maintain and protect the secrecy of the information.
If you call it a secret, but fail to treat it as such, you may lose the protection of your agreement. Make sure your agreement is worth more than the paper it is written on.
Trademark/trade name registration
Trademark and trade name registration is a simple and inexpensive method of protecting your company’s market identifiers: names, logos, slogans. You have spent, or will spend, years developing an association between your name and logos and the quality products and service you provide.
With success will come attempts to copy. Whether ill-intentioned or not, competitors will spring up with similar names, logos or slogans in an effort to take advantage of the competitive edge you have developed. Similarly, if you are a start-up investing time and money in promoting your brand, there will be nothing more frustrating than to find out later that someone has taken your name, logo or slogan and that you are precluded from using it.
The answer is simple. A trademark/trade name search and registration is a proactive method of protecting your identity and preserving your reputation.
Copyright
Copyright registration of your company’s printed, audio and visual material serves to protect against reproduction of those materials by competitors or others without your consent. Of particular concern to many companies in the new techonomy is the development of Web site software and/or content, which is subject to copyright protection.
Identification and ownership of your Web-based and other printed, audio and visual materials are essential. Make sure you own what you think you own.
Patents
Patent development and application is a much more specialized process and requires the input of a licensed patent attorney. Patent law has experienced a recent surge of notoriety as a result of the race to dominate new technology markets and new methods of doing business. Recent decisions have permitted the patentability of business models or business plans.
Whether you are an existing company with a new idea or method of doing business on the Web, or a start-up company in the highly competitive technology industry, one of the most powerful and valuable assets you can have is a patent.
It is never too early to start planning for the success of your idea.
Nicholas C. York is an attorney at Arter & Hadden LLP and a member of the E-Group, a multidisciplinary group of attorneys who focus their practice on entrepreneurs, Internet, e-commerce and emerging growth companies. He can be reached at (216) 696-5572.
