We’ve discussed the essence of copyrights and trademark protection in previous posts (Copyrights vs. Trademarks Part One and Part Two). But entrepreneurs aren’t looking for a 101 in intellectual property protection law, they are concerned with goals such as protection of unique attributes of their business, and protection of market position. The key question is how do copyrights and trademark protection and registration protect technology startups?
Copyright Protection of Technology Startups
The purpose of copyright protection is to grant exclusive rights to the original attributes of a mobile application’s user-interface (UX) and software code. Legal protection of copyright of software code, algorithms, and the UX or user-flow of a mobile application in most cases requires valid, legally binding contracts with employees, contractors or co-founders. Issues such as rights clearance, copyright assignments, warranties, licensing agreements, and work for hire contracts are typically implicated in the legal due diligence required to secure copyright ownership of technology startups such as mobile applications, software codes, and websites.
In the dynamic and competitive world of technology startups, safeguarding your intellectual property is essential. Copyright protection plays a pivotal role in ensuring that the original elements of your mobile applications, software code, and user interfaces (UX) remain exclusively yours. This blog delves into the nuances of copyright protection for technology startups, highlighting the importance of legal agreements and due diligence in securing your rights. By understanding these critical aspects, you can better protect your creations and maintain a competitive edge in the market.
The Purpose of Copyright Protection
Copyright protection is designed to grant exclusive rights to the original works of authorship. For technology startups, this includes:
Mobile Application UX: The unique design, layout, and user-flow of your mobile app.
Software Code: The specific code and algorithms that power your application.
Other Creative Works: Graphics, audiovisual content, and other original materials embedded in your technology products.
These elements are fundamental to the identity and functionality of your technology products, making their protection vital to your business’s success.
Legal Protection of Software and UX
Securing copyright protection for software code, algorithms, and the UX of a mobile application involves several critical steps and legal considerations. Here’s a closer look at what’s required:
Valid, Legally Binding Contracts: To ensure you own the copyrights to work created by employees, contractors, or co-founders, it’s essential to have robust contracts in place. These contracts should clearly outline the assignment of rights and include clauses related to copyright ownership.
Rights Clearance: This process involves verifying that all the content used in your technology product does not infringe on existing copyrights. Ensuring that you have the necessary permissions to use third-party content is crucial to avoid legal issues.
Copyright Assignments: When employees or contractors create original works, they must assign the copyrights to your startup. This assignment ensures that your company retains the exclusive rights to use, reproduce, and distribute these works.
Warranties: Including warranties in your contracts can protect your startup from potential claims of infringement. These warranties should guarantee that the work provided does not violate any third-party rights.
Licensing Agreements: If your technology product incorporates third-party software or content, licensing agreements are necessary. These agreements specify the terms under which you can use the licensed materials.
Work for Hire Contracts: In many cases, it’s beneficial to designate the work created by contractors as “work for hire.” This designation ensures that the copyright automatically belongs to your startup, rather than the individual creator.
Legal Due Diligence for Copyright Ownership
Ensuring comprehensive copyright protection involves rigorous legal due diligence. Here’s what you need to focus on:
Document Review: Examine all contracts, agreements, and licenses related to your technology products. Ensure they are properly executed and enforceable.
Ownership Verification: Confirm that your startup holds the copyright to all original works created by employees, contractors, or co-founders.
Compliance Checks: Ensure that your technology products comply with copyright laws and regulations to avoid potential legal challenges.
Trademark Protection of Technology Startups
Trademarks are essential for distinguishing your products and services in the marketplace, ensuring that customers can identify the source of your offerings. Unlike copyrights, which reward originality, trademarks are based on commercial use and distinctiveness. This blog delves into the importance of trademarks for technology startups, explaining how they function and providing practical steps for securing trademark protection. With the right strategies, you can safeguard your brand’s identity and build a strong reputation in the market.
What Are Trademarks?
Trademarks are symbols, words, phrases, designs, or combinations thereof that identify and distinguish the source of goods or services. They serve as a badge of origin, helping consumers recognize and choose products based on their familiarity with the brand. Here are key aspects of trademarks:
- Commercial Use: For a trademark to be registered, it must be used in commerce. This means the mark is actively used in the marketplace to identify goods or services.
- Distinctiveness: A trademark must be distinctive, meaning it can clearly identify the source of the product and differentiate it from others in the market. This distinctiveness can be inherent or acquired through extensive use.
Examples of Trademarks
To illustrate the concept of trademarks, consider the following example:
- A Lowercase ‘f’ in Blue Tones: This example could represent a distinctive logo that consumers associate with a particular company or product. The unique design and color scheme help customers identify the source and quality of the goods or services provided under this mark. (see others below)
Why Trademarks Are Important for Technology Startups
For technology startups, trademarks are vital for several reasons:
- Brand Recognition: Trademarks help build brand recognition, making it easier for customers to find and choose your products or services.
- Legal Protection: Registering a trademark provides legal protection against unauthorized use, allowing you to take action against infringers.
- Market Positioning: A strong trademark differentiates your offerings from competitors, enhancing your position in the market.
- Customer Trust: Consistent use of trademarks builds customer trust and loyalty, as they associate your mark with quality and reliability.
Steps to Secure Trademark Protection
Securing trademark protection involves several key steps:
- Conduct a Trademark Search: Before applying for a trademark, perform a thorough search to ensure your desired mark is not already in use. This helps avoid potential conflicts and legal issues.
- File a Trademark Application: Submit an application with the U.S. Patent and Trademark Office (USPTO) or the relevant authority in your jurisdiction. The application should include a clear representation of the mark and a description of the goods or services it will cover.
- Demonstrate Commercial Use: Provide evidence that your mark is being used in commerce. This can include marketing materials, product packaging, and other documentation showing the mark in use.
- Maintain and Enforce Your Trademark: Once registered, actively monitor the market for potential infringements and take necessary legal action to protect your rights. Renew your trademark registration periodically to maintain its validity.
Trademarks do not reward originality per se, trademarks are based on commercial use and distinctiveness, as in, the ability to identify the source of a product, such as
A lower case ‘f’ in blue tones:
The letters ESPN for a sports branded website:
A silhouette of a man on a horse swinging a mallet for men’s clothing:
Your favorite brand of coffee:
Any word, phrase or design (usually a logo) that meets trademark requirements can have trademark rights vest with the first user. Once trademark protection attaches it lasts forever provided the mark is used in commerce. For tech startups, trademark due diligence is the touchstone of branding strategy, what to call the app, and what is the commercial impression it conveys. Legal due diligence in the form of a search, trademark clearance, and analysis of results by an experienced trademark attorney is critical to understanding the trademarkability of a selected name or brand, a selected commercial impression, a branding persona that can distinguish the mark in a crowded field.
Understanding the scope of protection of different forms of intellectual property– everything from copyrights, trademarks, patents, to trade secrets can be intellectually stimulating (Trust me, I do it for a living). While intellectual property law is a sexy topic to some, technology startup entrepreneurs, CEOs of mobile application companies, marketing teams at software innovation firms, and niche social media platforms are more interested in how it applies to capturing and securing market share. What is most important to tech startup founders is not the definitions of the terms copyright and trademark, but what legal protection strategies they should pursue. The question that most need answered is, “What legal due diligence steps, involving contracts and federal copyright and trademark registrations, will secure the broadest exclusive rights to solely monetize the unique features, the unique selling propositions, and/or unique commercial impression for my product?”
Author: David N. Sharifi, Esq. is a Los Angeles based intellectual property attorney and technology startup consultant with focuses in entertainment law, emerging technologies, trademark protection, and “the internet of things”. David was recognized as one of the Top 30 Most Influential Attorneys in Digital Media and E-Commerce Law by the Los Angeles Business Journal in 2014. Office: Ph: 310-751-0181; david@latml.com.
Disclaimer: The content above is a discussion of legal issues and general information; it does not constitute legal advice and should not be used as such without seeking professional legal counsel. Reading the content above does not create an attorney-client relationship. All trademarks are the property of L.A. Tech & Media Law Firm or their respective owners. Copyright 2015. All rights reserved.
