How to Protect Your Intellectual Property

A 2021 article by the Hill reports that in late December the US Department of Homeland Security released an advisory warning businesses about the potential threats associated with partnering with firms from the People’s Republic of China. The advisory makes special note of how doing so can have significant implications on businesses’ ability to ensure intellectual property protections and perhaps even lead to intellectual property infringement. But what’s so important about intellectual property and why do you need to protect your intellectual property?

Protecting intellectual property is important as it prevents others from copying or stealing a businesses’ different creations that may be crucial to how a business functions its long-term sustainability/profitability.

However, what actually is intellectual property? According to the World Intellectual Property Organization (WIPO), intellectual property refers to ‘Creations of the mind - everything from works of art to inventions, computer programs to trademarks and other commercial signs’. To answer the second question.

What are the Different Types of Intellectual Property

In addition to understanding what constitutes intellectual property, it is also important to understand the different types of intellectual properties.

The US Chamber of Commerce recognizes three different types of intellectual properties. First is the patent. Arguably the oldest type of intellectual property, patents protect inventions from being copied by others. There are two types of patents - utility patents and design patents. Utility patents protect the way an invention works and lasts twenty years (in the US) whereas design patents protect the way an invention looks and lasts fifteen years.

Second is the trademark. A trademark is a sign, brand, logo, etc., that distinguishes a business, its goods, or its services from its competitors. The most important aspect of any trademark is its distinctiveness. A service mark is the equivalent type of intellectual property for services a business provides.

Third is the copyright. To quote the US Chamber of Commerce, ‘Copyrights shield creative ideas transferred to a tangible medium of expression, like a literary, artistic, musical or architectural work or performance.’ Unlike patents or trademarks, all copyrightable works are automatically protected under the US Copyright Act.

Though not commonly considered a type of intellectual property, many, including Wells Fargo, would argue trade secrets - or information or business practices that offer businesses advantages over their competitors and are thus kept secret - are indeed a type of intellectual property that can be just as crucial to a business as the three aforementioned types of intellectual property.

What is Intellectual Property Theft

Though the term ‘intellectual property theft’ is commonly used, it is entirely not accurate. In a 2020 article, Lexology states that the more appropriate term would be ‘intellectual property infringement’ as intellectual properties are non-material things and do not technically physically exist.

Intellectual property infringement can take many different forms, depending on the type of intellectual property and the corresponding legal protections being infringed upon. Patent infringement occurs when a patent that has been properly registered is used or applied in the industry by another person without the patent owner’s permission.

Trademark infringement on the other hand occurs when somebody makes unauthorised use of a mark that is identical to the registered trademark, whereas a copyright is infringed upon when a creative work copies major elements from a different creative work.

Exposing a trade secret - by violating the agreed upon NDAs surrounding trade secrets and exposing these highly confidential secrets - is also considered a form of intellectual property infringement.

Lastly, in some jurisdictions there is no difference between trademark infringement and counterfeit. In other jurisdictions, to qualify as counterfeit ‘to the consumer, the actual product must look like a fake’.

In order to act upon these infringements it is important to first consider whether or not the intellectual property has been properly registered with the appropriate institutions prior to filing an infringement suit.

How to Protect Your Intellectual Property

However, it is always best to ensure that it never gets to the point where an infringement suit is filed. A 2017 Forbes article outlines different steps individuals and companies can take to better protect their individual properties.

It is important to quickly identify what aspects of the business and/or products need to be trademarked, copyrighted, or patented. It is also important to do market research and see if any other firms or individuals have anything similar or perhaps even already has your company’s brand or product registered.

The article also stresses that ‘member agreements [must] state that all intellectual property developed by members, shareholders, etc. belongs solely to the company and that members who develop any intellectual property will execute any and all documents necessary to protect the company’s rights’.

Furthermore, in terms of sourcing or even when it comes to working with one another, companies should only engage with countries or companies they can trust and/or have a proven track record for upholding intellectual property rights.

One method of assessing a country or companies’ reliability is to utilise indices such as the International Property Rights Index. For example, it can be inferred that companies from Finland, Switzerland, and Singapore uphold intellectual property rights as these three countries are ranked first, second, and third respectively on the 2020 International Property Rights Index.

Conclusion

Though many may not take intellectual property protection seriously, perhaps due to the fact that these protections may incur the business additional startup cost not legally required to start or run the business, general anxieties surrounding whether the business or product will ‘take off’, or perhaps a lack of legal knowledge surrounding intellectual property protection, it is important to take these matters seriously and to legally register intellectual properties to prevent intellectual properties from being infringed upon.

In addition to properly registering intellectual properties in the country of the company’s origin, as the company grows and expands into foreign markets it becomes increasingly important for businesses to properly consider the companies they partner with/source from, the countries they are based in, and the implications these companies and countries can have on your company’s intellectual property.

The companies your company partners with or source from must have a proven track record of respecting others’ intellectual properties, an understanding of relevant intellectual property protections, and a willingness to invest in safeguarding intellectual properties.

Furthermore, the countries these companies are based in must have a comprehensive intellectual property protection framework, the means to enforce these protections, and a legal mechanism to report infringements upon intellectual property.

When deciding on which companies to partner with or source from, it is important to properly and thoroughly consider these factors so as to prevent what happened to US firms partnering with or sourcing from Chinese firms from recurring.