Protecting intellectual property: how and why?
Starting a startup requires so many considerations to be made, and among them is how to protect intellectual property. In fact, if the basis of your project is an invention or a new idea, you need to know that, in addition to making sure that you do not infringe on that of a third party, you also need to protect your intellectual property, so as to ensure good profitability in the long run. Herbert Spencer, after all, said:
“If it is a duty to respect the rights of others, it is also a duty to enforce one’s own.”
If you do not know what is meant by intellectual property and how it can be protected, do not get distracted and read the next few lines very carefully because they will answer these very questions (and many others).
What is meant by intellectual property?
As is often the case, there is no universally valid definition of intellectual property because what is included within it varies, inevitably, from country to country.
Nevertheless, it is possible to shed light on the meaning of this concept, which, in general, refers to a system of legal protection referring to intangible assets that are the result of human creative and inventive activity, such as artistic works, industrial inventions, brand names, and designs.
More specifically, intellectual property is considered, from a legal point of view, the set of rights of a personal nature (i.e., the moral right to be recognized as the author of a work or as the originator of a technical solution or trademark) and patrimonial (i.e., the right attached to the economic exploitation of one’s creative activity).
You should know that while the former is a very personal and inalienable right, the latter is available and transmissible. It should also be pointed out that both individuals and businesses, of whatever size, can benefit from intellectual property rights.
What rights does intellectual property preserve?
Regarding the specific rights preserved by intellectual property, in Italy it can be divided into 3 different macro-areas:
- intellectual works protected by copyright (artistic and literary works, music, television programs, artistic designs, advertising creations and multimedia products, software, databases)
- industrial property (patents on inventions, trademarks, industrial designs, new varieties of plants and geographical indications of origin);
- commercial strategies (trade secrets, know-how, confidentiality commitments or rapid production).
The specific form of protection provided by intellectual property, however, depends on the nature of the asset to be protected. While for some, in fact, protection is triggered automatically (this is the case, for example, of copyright relating to literary texts and sound recordings), for others it is necessary to submit a formal request which, then, will be considered by the competent body of the country where the registration took place.
Having said the division into macro-areas that is possible in Italy regarding the preserved rights of intellectual property, it is the case that you know what the main categories are. We will review them briefly, one by one, in the next few lines.
Patents are specifically concerned with new and unique inventions that can be produced or exploited. Their purpose is to confer the right to take legal action against making, using, and selling them without authorization.
Copyrights, as noted above, automatically protect original creations that require skill, labor or judgment. Examples include products of fine art, literature, music, theater, and software.
This particular form of (immediate) protection protects the design or external conformation of a product. A patent may be associated with it.
Logos and trademarks
It is possible to register a trademark at the Italian, European and international levels. It is a form of protection aimed, in particular, at brand names and logos and is divided into classes of goods and services.
European Union regulations and those of individual member countries protect against the unlawful acquisition, use and disclosure of trade secrets.
How to protect the intellectual property of intangible assets
Intellectual property of intangible assets varies, as has been pointed out many times before, depending on the geographical context in which protection is activated and according to the object of protection, taking different forms (the aforementioned copyrighted intellectual works, industrial property, and commercial strategies).
Whatever the subject matter, the general advice for you is to register the intellectual property or patent it (in the case of a patent) at the UIBM – Ufficio Italiano Brevetti e Marchi (Italian Patent and Trademark Office). First, however, you need to make sure that you comply with all legal requirements, verify that there is not already an equal or similar registered trademark, and make sure that the trademark does not have any of the characteristics considered “negative.”
You must, in addition, thoroughly evaluate the potential duration, functions, and features of the patent or trademark and consider extending protection to countries where you export and market the subject matter (or plan to do so in the future).
Why is it important to protect intellectual property?
A mistake in choosing the form of intellectual property protection for your intangible assets risks giving others the opportunity to copy your invention/innovation.
To understand why it is important to protect intellectual property, however, we need to make a broader argument, which revolves around a very specific concept: that of competitiveness, based on parameters such as quality and differentiation.
Too often, the low liquidity that characterizes the early stages of a startup’s life journey leads people to underestimate the importance of intellectual property, mistakenly believing it to be an unnecessary cost; in reality, you need to know that you would do well to protect the idea behind your project from the outset because it is the most valuable asset you have, since it is what allows you to introduce new elements to the market sooner and better than anyone else. It is your idea, moreover, that drives the investments needed to implement it and to gain and maintain the competitive advantage.
Keep in mind that intellectual property allows you to show potential investors the innovative elements of your idea and its potential, precisely because of the protection from future infringement. In this regard, keep in mind that when you present your startup to third parties (as, indeed, may be the case with potential investors) without first taking steps to protect your idea, you should not disclose the elements that could become the subject of a patent (alternatively, you can request that a confidentiality agreement be signed).
You should also know that the protection and enhancement of intangible assets also gives you the opportunity to enter into licensing agreements with other (obviously non-competing) companies and for applications in areas other than your company’s core business, thus allowing you to start making money even before you enter the market.
Intellectual property, therefore, has not only a defensive function (e.g., against counterfeiting) but also an active role, which translates in practice into an increased ability to attract forms of funding, opportunities for collaborations, and customers.
What to do in case of violations
The overview of intellectual property can only end with another answer to a very important question: what to do in case of infringement? That is, what actions can you take if you believe that your intellectual property rights have been violated? It is good for you to know that you can turn to different competent authorities depending on the type of infringement.
In case of infringement of a national patent, for example, you can turn to the relevant national court.
To protect your products from counterfeiting, you can register with the anti-counterfeiting database of the European Union Intellectual Property Office (EUIPO): you will be put in direct contact with the relevant authorities.
In the event that someone has registered a trademark identical or similar to yours, you can request cancellation of the registration and, if it is still pending, you can oppose the application. In the event of a dispute over a domain name, you can turn to the courts or try the route of an out-of-court settlement (e.g., by turning to ICANN).
Finally, if the intellectual property infringement results in a violation of trade secrets, you can initiate court proceedings.
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