In addition to the five important things that entrepreneurs should be aware of regarding trademarks and copyright law, entrepreneurs should also have a knowledge of the potential challenges that may arise as well as how to overcome them. This is a good way to prepare for any future issues that may come up.
Not Knowing the Level of Protection Needed for Your IP
Entrepreneurs often face the challenge of not knowing what level of protection is enough for the businesses’ IP. Is copyright enough? Should I pay to register a trademark? Should I patent this?
Copyright is automatic and is given to any original work you have regardless. However, it is a much stronger statement about your business if you can show that your trademark is registered. In deciding whether or not you should register a trademark, from a legal perspective, it is the safest strategy to prevent others from either using your brand or from wrongfully claiming your brand as their own.
Having Your Copyright Infringed Online
With the arrival of the internet, copying and reproducing others’ work only takes a matter of moments. It can often be hard to keep track of any infringements that have indeed taken place. The biggest challenge with work that is reproduced online without permission is that often there is not much that can be done. The usual course of action is to write to the infringer and to ask them to take it down. Beyond this, there is little that you can do unless you choose to take official legal action.
Taking legal action is in general not recommended for small online infringements as the cost far outweighs the benefit. Legal action is only recommended when the infringer has made a financial gain from reproducing your work and has therefore been unjustly enriched. For example, if someone piggybacks off your business name to sell similar goods or services online. In this case, you should be entitled to the profits that the infringer made using your copyrighted work.
Similar Trademarks Already Registered
The other common challenge for entrepreneurs is often finding out that a similar trademark to the one that they wish to register already exists. The best way to prevent this issue is to register your trademark as soon as possible to a) prevent others registering something similar, or b) to find out early if a similar mark exists so that you can consider modifying yours.
Sometimes a similar trademark will not be a roadblock if it has been registered under a different class of goods and looks significantly different to yours. An IP lawyer will be able to tell you the chances of registering your trademark if this is the case. If it seems unlikely that your mark will be approved, the next course of action may be to file for removal of the mark. In general, you can file for removal of the mark for three reasons:
- The owner had not used the trademark for three consecutive years;
- The owner had not used the trademark in good faith;
- The owner did not have any intention of using the trademark.
It can be a lengthy and troublesome process to have a trademark removed, so it is recommended that you register your mark as soon as you have created it.
For entrepreneurs, IP challenges may be a daunting prospect. Often it is a case of planning ahead and anticipating how your IP can be infringed – such as registering your trademark before somebody else can. It can also be about weighing the cost and benefit – should I sue for copyright infringement? Should I ask to remove a previous trademark? If uncertain, the best course of action is to consult an IP lawyer.