Should I Protect [This]?

When people learn that I am an intellectual property attorney, I typically hear one of two things: 1) “what is that?”; or 2) “oh really?  LET ME TELL YOU ABOUT THIS THING I’M WORKING ON!”

I love the second thing! Usually, the long explanation and history of their content, brand, software, or product, ends with them asking me, “Should I protect [this]?” Where, “this” is everything that they are building or creating. And, I understand, as entrepreneurs, we have to make tough decisions all the time.  The legal aspect can seem particularly daunting and mysterious.  I try to help my clients answer this question all the time…but when it comes to cocktail party or watercooler conversations, I really just can’t answer the question!  It seems like such a lawyer cliché to say “it depends,” but answering that question takes research, takes getting to know the person and their business, and takes some thought.

So, yes, entrepreneurs can hire someone to answer the question for them, BUT isn’t it better to provide entrepreneurs with a way to think about the question in a systematic way so that the focus is at least narrower when you talk to an attorney or seek protection for your content and innovations?  I thought so, so I created a workshop to teach a man to fish instead of giving him a fish.

Let’s start with the word, “Protection.”  It can mean a number of different things in a legal sense.  If you’re talking strictly about an innovation or creation, then it may mean a copyright, patent, or trade secret.  If you’re talking about a brand, it may mean a trademark.  However, it can also extend to having a business entity or having the right terms of use/service and privacy policy on your website. It can also mean you have the right contracts in place to ensure that you own the things that you think you own.

For example, someone like Tumblr does not have a ton of original content to protect.  They are built on user-generated content.  So, they focused a lot of their legal strategy on things like “Community Guidelines” (Terms of Use) and a Privacy Policy.  These documents allowed them to protect the company from getting in trouble for what their users post, allowed them to protect their users from each other, and allowed their users to fully express themselves.

So, the protection strategy can depend on what you want to protect AND how that thing or those things interact with your clients, customers, and/or users.

Before we can talk about strategies and types of intellectual property registrations, though, we need to know what you are creating and whether it is worth protecting.  At the beginning of my workshop, I go through how your values, mission, and vision should inform your legal strategy. People then look confused because it seems like something fluffy like your mission, vision, and values do not mix with something like legal strategy which no one has ever called fluffy.

So, why do I talk about it first?

First, your company has at least one purpose and typically this purpose (or purposes) focuses on how the company creates some sort of value for yourself and for the community it serves.

Second, every company generally has standards for how they currently operate and wish to operate in the future.  These standards help them to define their goals.  It doesn’t have to be vision, mission, and values. However, most companies these days invest time and money into creating these standards so that is why I use that standard.  So, whether you are using mission, vision, and values or you are using a different set of standards, the important thing is that you have some sort of standard to operate your business and achieve your goals.

So, in order to decide whether or not your content, innovations, and brand are “worth” protecting, entrepreneurs should start with: 1) making a list of all the things that they are creating; 2) making notes next to each “thing” of every type of person that interacts with that thing; and 3) evaluating whether those things align with their mission, vision, and values.

If your innovations and creations do not further your goals and are not in line with the standards that you use to operate your business, then they likely should not be high on the priority list for protection. Does it mean that they should NEVER be protected?  No.  I’m assuming that you have limited resources and would like to figure out how to prioritize the use of your time, money, and resources.

That’s your first set of things to demote. Now you need to prioritize the rest.

Shrey Ley
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