Insight

Four Disastrous IP Mistakes Most Companies Make

Registering and investigating trademarks are just the beginning when it comes to keeping your intellectual property safe.

Four IP Mistakes and How to Avoid Them

Eric Vaughn-Flam

July 17, 2018 03:50 PM

Companies, especially startups, routinely agonize over the development of new products and services, costs and pricing, as well as their physical plant, operations, sales, distribution, and human resources, among other things. But these companies rarely pay enough attention to the intellectual property aspects of their business, and that may be because they are unfamiliar with core IP concepts. Here are four IP mistakes that can create disasters for business owners.

Insufficient trademark investigation

Let’s start with the brand name. While a company might select a “cool” name for their business, they often fail to investigate whether the name is already in use by another business. It is extremely difficult to develop a desirable brand name that is not already in use. If the investigation is not thorough enough, you may receive the dreaded “cease and desist” letter from someone claiming a superior right to the name. If this happens, you may risk losing not only your profits, but also the time and money that you expended in developing a brand name.

Failure to register trademarks

Brand names should not be descriptive of the product or service, nor should they utilize generic or commonly used phrases for the product or service. A brand name should be unique to the goods or services that the company provides, meaning it should not be confusingly similar to another brand that offers a similar product or service. Once a brand name is established, it should be registered with the United States Patent and Trademark Office. The benefits of registration are numerous and include the acquisition of a national trademark. Without one, you may only be entitled to the exclusive use of your brand name in the geographic location in which you do business, which leaves open the possibility that any other company may use the same name in other locations.

Failure to properly transfer IP rights

The goal in all branches of intellectual property is to establish exclusive rights. Regarding trademarks, exclusive rights are accomplished by choosing a distinctive mark and registering it with the USPTO. Copyright covers items such as artwork, graphics, photos, literary property, music, film, television production, and software. Many of the foregoing items are used by companies in one fashion or another. Copyrights are obtained when an original work is fixed in a tangible medium: This means that you cannot secure rights in an original idea unless it is expressed in something tangible like paper, canvas, or a computer drive. The exclusive rights in copyright include the right to copy (thus the name) sell, distribute, display and perform, and create derivative works.

The most glaring mistake that I encounter regarding copyright property is that clients think that they have acquired rights because they paid for certain items. This is not true. For example, if a company hires people to create a logo, ad campaign, illustration, television production, or customized software (each, a “product”), the owner is the person who created the product, not the company. Just because you buy a painting does not mean that you can make copies of the painting and sell it. These misconceptions lead companies to mistakenly believe that they possess a proprietary interest in aspects of its products, services, or operations.

Failure to Register Copyrights

Registration of copyrights with the U.S. Copyright Office is generally mandatory if you wish to enforce your rights, but it is also necessary in order to recover “Statutory Damages.” Copyright damages are generally comprised of actual damages and the infringer’s profits. Statutory damages are a kind of punitive damages, which may range from $200 to $150,000 per infringement depending on the infringer’s culpability. Statutory damages may be awarded even if actual damages or an infringer’s profits are not provable. Thus, it is important to register a copyright prior to infringement. Failure to do so might leave a copyright owner without any monetary remedy in the case of infringement.

In conclusion, early registration of trademarks and copyrights and proper acquisition of intellectual property is vital to the preservation of a company’s intellectual property rights. Consult an experienced intellectual property attorney for help in navigating the trademark and copyright process, and protecting your intellectual property.

----------------------

Eric Vaughn-Flam, Esquire is Of-Counsel at Cooper Levenson, P.A.’s Boca Raton office, and Chair of the Firm’s Intellectual Property Practice Group. He can be reached at evaughnflam@cooperlevenson.com, or 561.569.8062.

Related Articles

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Learn How to Value Your Company's IP Portfolio as a Source of Income with Patent Scorecarding


by Troy A. Groetken

It’s imperative that intellectual property counsel, especially those responsible for the protection of innovation in the electrical, chemical, pharmaceutical and life-science arenas, regularly audit their company’s IP portfolio. Here’s the best way to do it.

Intellectual Property Scorecarding Benefits

What Entrepreneurs Should Know About Intellectual Property


by Todd Fichtenberg

With the growing rates of entrepreneurs and startups during 2020, applications for EINs and intellectual property protections should grow proportionately.

Business Owners And Intellectual Property

Anthony M. Insogna - San Diego 2021 Lawyer of the Year


by Best Lawyers

Litigation - Intellectual Property San Diego, California

Anthony M. Insogna

The State of Women Inventors


by Amanda Hermans and Kate Rockwood

What’s being done to improve the gender patent gap—and how attorneys can help.

How to Improve the Gender Patent Gap

Property Protectors


by Best Lawyers

Georg Schönherr and Thomas Adocker discuss the theft of trade secrets, patent infringement, and strategies to combat fake goods.

An Interview With Schwarz Schönherr Rechtsanw

Protect Your Intellectual Property From Patent Trolls


by Best Lawyers

Michael Ritscher discusses how he advises clients to better protect their trade secrets.

An Interview With Meyerlustenberger Lachenal

Technology and the Changing IP Climate in Mexico


by Best Lawyers

Roberto Arochi discusses Arochi & Lindner’s 2019 “Law Firm of the Year” award for Intellectual Property Law in Mexico in an interview with Best Lawyers.

Arochi & Lindner "Law Firm of the Year" Q&A

Alicia Lloreda on the Increasing Complexity of IP Law


by Best Lawyers

The Lloreda Camacho & Co. attorney discusses the firm's 2019 “Law Firm of the Year” award for Intellectual Property Law.

Alicia Lloreda Law Firm of the Year

After 30 Years, Kevin R. Casey Looks Back on IP Law


by Best Lawyers

Kevin R. Casey, the 2019 "Lawyer of the Year" winner for IP Law in Philadelphia talks about his practice and career.

Kevin R. Casey 2019 "Lawyer of the Year"

Stopping Infringement before It Happens


by Jennifer Ko Craft

IPR protection strategies that work.

How to Prevent Copyright Infringement

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Is Premises Liability the Same as Negligence?


by Jeremy Wilson and Taylor Rodney Marks

In today's age, we are always on the move, often inhabiting spaces we don't own. But what happens when someone else's property injures you or someone you know?

A pair of silhouetted legs falling down a hole with yellow background

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Why Backlinks Matter for Law Firm SEO


by Nancy Lippincott

The key ingredient to a law firm's online search visibility could lie within backlinks, a driving factor in the industry's efforts to build an SEO-based future.

Collection of search bars, menus and posts in front of gray background

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background