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Intellectual Property Awareness

By: Jason White



What happens if you’re trying to do business on a national or global level?  One thing is certain. You’re going to have intellectual property issues to deal with. And you may not even realize that these issues exist. Here are a few things to think about in determining whether you need outside help.

Before Starting a Business
If you’re reading this before forming a business, one of the initial considerations about intellectual property is determining the name you’re going to use for your company. The name is often considered as a trademark or a service mark when you’re doing business.  You want to start by looking on the internet. See if somebody else out there is using the same name, obviously checking if the domain name is available from a website standpoint. A great place to start is a Google search. This will give you a good sense for whether anybody out there has already taken the great name that you thought of for your company. If they have, it’s not the end of the world; it’s just something to understand.

Checking on potential conflicting usage and documenting your findings is going to give you more rights. It gives you a better chance to protect your trademarks and service marks at local, state, and federal level.  The necessary protections are a little complex and may require the guidance of an attorney. But it’s very important to protect your trademarks and service marks.

Ideally, you should also determine that you’re clear on an international level so that when your company is set to take over the world you haven’t taken someone’s name that’s been in business for the last 10 years and is a step ahead of you.

Copyrights and Patents
When it comes to written copyright issues and music issues if you’re using music either online or in videos, there are multiple copyright and rights issues that typical small business owners may not consider. Do you have permission to use it? Do you need permission to use it? There are many tough stories about people from well-established companies using songs in their commercials without realizing they had to license the rights for the songs and getting hit with huge lawsuits. Be sure to tread in these areas carefully. Get some guidance if you can; it’ll be a real advantage in the long run.

Consulting an Attorney
With patents, trade secrets, knowhow and things of that nature, our starting point is internal employment agreements. For example, your business is doing well and you want to bring in some support to help you execute the next secret Coca-Cola formula. You don’t want your employees to take those ideas and post them on the internet or take them to their new company and let your secret out to the competition. So use an attorney to draft provisions in your employment agreements if you have them that protect confidentiality, using non-compete clauses and non-solicitation clauses so your employee can not leave your company and then steal all your trade secrets from you.

Again, this is an area that’s riddled with legal challenges. Be aware that some states are really hesitant to enforce these types of provisions in court. So you have to draft them with appropriate guidance. You can’t make these blanket provisions on your own. This is an area where you’re going to need some help.

Drafting an employment agreement is another area where it likely makes sense to supplement your efforts at self-help by consulting an attorney. Your attorney will have you start by asking whether you even need an employment agreement. Most states have what is referred to as “at-will employment”. There’s likely no need for an employer to even have a written agreement in place with their rank and file employees. You can fire them at any time. So that’s something to consider as well. Why draft an expensive employment agreement if you may not need one?

What you may need is certain supplemental agreements that employees execute upon employment. Such agreements would include Confidentiality and Non-Disclosure Agreements, whereby employees make explicit agreement not to expose the company’s intellectual property to misappropriation.

Published: April 5, 2013

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Jason White

 Jason White is an associate attorney at Finestone & Morris in Atlanta, GA. With a J.D. from Emory University, Jason is a member of the State Bar of Georgia and the American Bar Association. His legal specialties include corporate, sports and entertainment, civil litigation, creditor’s rights, commercial leasing, estate planning, and criminal defense.

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