Creativity Life Cycles : Canadian Trademark Agent and Lawyer : Joshua MacFadden : MacPherson Leslie & Tyerman Law Firm : Patents, Intellectual Property

Be careful when copying material. Most material on the Internet (i.e. photos, logos, articles, etc.) is protected by copyright. Such material can only be used with the written consent of the owner (i.e. a license). The penalties of using content without such permission can be costly and embarrassing to you or your business. 

Be careful when selecting and adopting new trademarks (i.e. logos, product names, slogans, etc.).  It is important to research whether a new trademark may infringe on a third party’s copyright and/or trademarks. Consult with a legal advisor to research the availability of your new trademarks before investing large sums of time and money in adopting new brand names, logos or slogans.  A failure to do so may result in a need to re-brand or, at worst, litigation.  Bottom line:  the loss of momentum for your new brand, not to mention the costs associated with litigation, are huge in comparison to appropriate due diligence.

Comply with license terms. Periodically review  compliance with all key licensing agreements to which you are a party and make sure you are complying with user counts and other license terms and conditions. If you are not sure, check the license or consult with your legal advisor.

Protect third party confidential material.  Many businesses will have material from third parties that is protected under confidentiality agreements.  Segregate this material from non-confidential material, don’t disclose to third parties without authorization, and only discuss that information with others on a “need to know” basis.

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Know what you have.   Know what  your business owns and what is licensed into the organization.  Consider whether a client deliverable, an internal document or module of software (or a portions thereof) are developed, owned or licensed from a third party?

Protect what you have.   If a deliverable or work product is owned by your company consider whether it should be protected by IP registration or trade secret policies.  If you are unsure, contact your legal advisor.

Put IP Notices on original materials. This includes appropriate notices, symbols and disclaimers for your IP, for example:

• Copyright notices include the © symbol and copyright notices such as “© 2010 . All rights reserved.”;
• Patent rights can be indicated on a product or its packaging (i.e. Canadian pat. No. 1,234,567); and
• Trademark rights can be indicated with use of the TM symbol or ® symbol for registered marks along with trademark notices such as “ is a registered trade mark of work”.

Make sure Consulting and Employment Agreements are in place to address Confidentiality and IP Ownership. Make sure written agreements are in place referencing commitments of non-disclosure, confidentiality and IP ownership before disclosing IP to employees or potential employees or engaging outside consultants.  If there is not an effective agreement in place, a consultant, for example, may claim IP ownership or otherwise misuse key information or materials for their own benefit or for others in the industry.

Mark  confidential information as “CONFIDENTIAL”. Where documents contain confidential information, mark the document “Confidential” and protect it from unauthorized disclosure.  Only discuss confidential matters internally on a “need to know” basis and do not disclose to a third party unless effective confidentiality and non-disclosure agreements are in place.

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IP is an asset of every business and indeed, may be the most valuable assets of a business.  Such assets include brand names, logos, slogans, domain names, software code, literary works, inventions, confidential information and trade secrets (i.e. everything from your customer list to your corporate logo).

For many businesses IP may be unprotected, under-exploited, or vulnerable to theft or infringement by third parties thereby reducing the potential competitiveness of a business and opportunities for growth.   Any individual or organization which invests in innovation fails to capture and exploit the true value of that investment if IP rights are not protected, commercialized and enforced.  Moreover, to the extent that a third party’s IP (i.e. software) is being used in conducting business, it is essential to know what your rights and obligations are to any such third party to ensure you are not violating the rights of third parties.

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