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Inspiration or Infringement: Protecting Your Intellectual Property Portfolio

In today's rapidly evolving business landscape, intellectual property (IP) is a vital asset for, dare I say, all businesses, offering a strategic edge and fueling growth.

Entrepreneurs spend years of ideating, envisioning and collaborating with trusted friends and family, thousands of hours, and exorbitant financial resources to bring an idea to life; when the public sees or experiences some bit of it, this enormous investment is rarely what they see, rather they are often just left inspired by the experience that investment has meant for them. In comes the issue of protecting your IP portfolio in a time where inspiration is too commonly wielded to justify infringement.

It is hard to imagine that one could feel so entitled to take for themselves what someone else built, or worse, to do so knowingly and in recognition that others respect and value it, but to every ideator, entrepreneur, and creative mind’s dismay, self-justification appears to be exceedingly common, and thus we are left in a position to understand and protect.

When inspiration crosses into infringement, it’s your right and in some instances, your responsibility, to fiercely defend your IP, against infringing parties. As a guardian of originality, you not only protect your legacy but also champion the integrity of innovation itself.

What it means: Building an IP portfolio

Building an IP portfolio involves systematically ideating, developing, identifying, acquiring, and managing IP rights that align with a company’s business goals. For many entrepreneurs, this means not only protecting their innovations and brand identity as it is traditionally thought of (e.g. name, logo, slogan), but also using their IP portfolio as a tool for market differentiation, revenue generation, strategic partnerships and other growth opportunities.

An appropriately managed IP portfolio contemplates various measures of protection for different types of IP and can serve as a shield against competitors, creating a pathway to prevent or shut down the replication of proprietary technologies and designs. It also is an asset that can hold significant value, which in turn can create real damages when infringed upon, as an IP portfolio is recognized by investors and traditional funding, as value in driving business success.

How to build your IP portfolio

If you are reading this, chances are you have already begun building your IP portfolio, given the immediate and common law rights that can attach to developed IP assets, even before you formally register them. Papering your IP portfolio will help you identify what these various assets are.

To build a robust IP portfolio, many begin by conducting an IP audit to identify their existing and potential IP assets. ‘Audit’ is a buzzy word that causes many to recoil, but in this instance, it can manifest as more of a think tank, in which you (and perhaps your core team, along with legal) thoroughly examine your branding elements, digital platforms, digital content, digital assets, products, processes, software and anything else that may qualify for protection. Once identified, the next step is to decide which forms of IP protection are appropriate for each asset.

• Patents: Protect inventions and processes that offer new and useful functionalities. Entrepreneurs should consider filing for patents early in the development process to safeguard their innovations.
• Trademarks: Protect brand names, logos and slogans that distinguish a company’s goods or services. Registering trademarks ensures exclusive rights to use these identifiers in the marketplace.
• Copyrights: Protect original works of authorship, such as software code, designs, and marketing content. Copyright registration provides legal backing against unauthorized use or reproduction.
• Trade Dress: Protect your product, service or brand’s overall commercial image, including its look and feel, through strategic registrations and implementing strict confidentiality agreements and security measures.
• Trade Secrets: Protect confidential business information that provides a competitive edge, such as proprietary algorithms or manufacturing processes. Maintaining trade secrets involves implementing strict confidentiality agreements and security measures.

Building an IP portfolio is not a one-time activity but an ongoing process that requires regular monitoring and updating to reflect changes in the business and technological landscape, but when done well can be an asset in waiting for whenever an opportunity presents itself or is found.

Policing intellectual property: Inspiration vs. infringement

Policing intellectual property is a critical responsibility for entrepreneurs, ensuring that their IP assets are not infringed upon by others. However, distinguishing between inspiration and infringement can be challenging in our fast-paced business economy, where ideas are constantly evolving and intersecting.

And, when infringement is clear, the choice in how and when one chooses to police it can also call for critical analysis – who is the infringing party? what can you decipher about their personality? what are they infringing on? is there consumer confusion? are they aware of it? are they innocent (potentially unknowing)? are they unapologetically infringing? have they used your personal name? – and the list goes on. Legal action can range from cease-and-desist letters to litigation, depending on the severity of the infringement, and should be strategically considered with your legal counsel.

When inspiration becomes infringement

While inspiration is a natural part of the innovation process, it crosses into infringement when an individual or company unlawfully replicates or exploits another’s protected IP without permission, and even more so when the two uses are for a same or similar business, good or service.

This includes, but is not limited to, copying patented technologies, imitating trademarks, replicating or using close modifications of brand colors, brand feel, brand design, digital design, slogan or reproducing copyrighted content. And the kicker that is most often overlooked is that the standard does not require exact replication, rather it contemplates if consumers are confused by the similarity to a point that they may think that the two uses are related – if consumers are confused as to the origin of two uses or two brands, there is a strong footing to assess the existence and level of infringement and the damages that the infringed upon party is entitled to.

Entrepreneurs should seek legal counsel to assess potential infringement cases and ensure their IP rights are upheld.

Conclusion: The imperative of building and protecting your IP

In conclusion, building an intellectual property portfolio is not merely a defensive strategy but a proactive approach to driving business success and innovation. For businesses of all sizes, a well-managed IP portfolio serves as a foundation for growth, offering protection, revenue opportunities, and a competitive edge in a crowded market. As the pace of technological advancement accelerates, which can fuel the entitlement to ‘be inspired’ by others, the importance of securing and policing intellectual property cannot be overstated. By investing in the development and protection of their IP assets, businesses are committing to ongoing excellence, creativity, and strategic foresight, ensuring that a startup’s most valuable assets are both protected and leveraged to their fullest potential.

Wynne Reece represents businesses of varying sizes, corporations, creative entrepreneurs, professional entities (such as law firms, mental health practices, or dental practices), and individuals, in a variety of commercial matters, including general structure, client relations and disputes, investor growth strategy, buy-sell agreements, mergers, acquisitions, intellectual property (e.g. trademark, trade dress and copyright), real estate, team structure compliance and mediation. Wynne is the founder of The Creative’s Counsel®, which focuses on making legal work accessible with relatable counsel; to date, Wynne has worked with over 1,800 clients in an outside counsel capacity.

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