Intellectual property (IP) broadly refers to creations of the mind – covering everything from images, written work, video and audio to games, inventions and software. Digital IP refers to those works that exist in the digital world. If you’re dealing in that, protecting your work should be pretty high up on your to-do list. We spoke to US-based law firm Better APC’s founding and managing partner Sam Mazzeo, who shared his tips on looking after your IP (from a US perspective).
Copyright and trademarks
Copyright protects your work and stops others using it without permission. Trademarks, meanwhile, are basically a badge of origin to show where that product or service is from. Some rights apply automatically once the work is created or used publicly – but officially registering it guarantees protection and gives you more rights.
• Do your homework. Understand the registration process and keep everything prepared. For trademarks, submit images of the mark that’s being used along with your application. When it comes to copyright, submit the actual asset or a schematic of it.
• First, carry out a trademark search with someone who has expertise in evaluating them. Look out for identical marks, similar marks and marks with a similar context.
• For copyright, add © to your creation along with the year that it was created. Intellectual property is “first in time, first in right”.
Creating an agreement allows no room for ambiguity. You can avoid future problems by making sure everything is outlined, clarified and agreed on. Make sure you detail who owns the rights to the work at the end of the project.
• Consistency is critical. Contracts include ‘defined terms’, and once defined, they need to be consistent throughout. Using the term for something other than its definition can create issues. Try to avoid piecing together sections from different contracts while creating your own – inconsistencies can render parts of the contract void.
• Ensure that the contract is signed by everyone. An unsigned contract falls into a gray area around whether it’s enforceable or not.
• Check that everyone’s clear on the contents and stay away from using plain English. Though it might seem easier to read, it can create uncertainty. Using legalese instead will ensure there’s no debate about the meaning.
IP insurance might initially seem like an unnecessary cost, but having it is a good defense – whether that’s for protecting your own IP or any unexpected infringement claims that may pop up.
• Get quotes from multiple insurers. Don’t just pick the cheapest option – choose the one that suits your needs and provides the best coverage.
• Be open with your needs. Hiding details can be counterintuitive – have a conversation with your insurer and they’ll help you to get coverage that’s robust.
• Pay attention to the policy requirements. Follow what it says you can and can’t do. Be transparent and abide by the terms because that will help you to maintain your coverage.
This article was first published in Courier issue 43, October/November 2021. To purchase the issue or become a subscriber, head to our webshop.