How to protect your startup’s intellectual property

By Dennis Clemente

You often hear about startup founders saying there’s no way to protect yourself, but what if there was some kind of intellectual property protection you have not explored fully, because you’re used to hearing there is no such thing as protection online. What If you just didn’t bother to ask until it was too late and someone already tweaked your idea and co-opted it?

Last March 20, the Entrepreneur & Small Business Forum hosted a meetup billed “Protect Your Startup’s Intellectual Property” with guest speakers Calvin Chu, managing director of R/GA Accelerator, John Hempill of Sheppard Mullin who talked about copyright and trademark design and Gary Walpert of Byrne Poh LLP who talked about design patents at the Lee Hecht Harrison offices at Met Life at Grand Central Terminal.

In most legal talk about protection, many on the receiving end always find themselves hearing general assumptions, for the reason that the law is specific to one case over another, but Chu pointed out that keeping these three things in mind—copyright, design patents, trademark design—can go a very long way. He calls it “one very good combo.”

For copyright, Chu said you are protected immediately when you’ve expressed design in tangible form (the way Apple has obsessively done so); the advantage here is immediate protection. How does it stack up? It doesn’t protect against independent reverse engineering. And when it comes to raising the infringement issue in this matter—you’ll need to prove that the offender had access and substantial similarity.

With regard to design patents, protection begins when it’s issued. The advantage you get is that it prohibits others to use your design regardless of how they arrived at their own design. Even better, it protects you against independent reverse engineering. How does the infringement work? If the design of the article is similar, you have a case.

As for trademark design, protection begins when it’s used in commerce—and it’s an immediate protection against use of your design as a trademark. You can even chase someone’s trademark if it’s likely to cause confusion (Toys R Us against Adults R US, for instance), to protect yourself.

Having that “combo” helps you protect yourself. Everything else is relative. There’s no one-size fits-all scenario.