India: Backing Up Your Start-Up By Having An IPR Strategy

While developing a new idea as a product, innovators understandably invest a lot of time into the research and development of the product. They focus on building a business model, getting more and more investors to invest in the business and hoping that the product will gain an early traction in the market. What they forget is to have a sound Intellectual Property Protection in place before they launch their product into the market. Although people are now becoming increasingly aware about their IP rights, it is always advisable to have a sound IPR regime in place before launching products into the market.

Intellectual property refers to an invention resulting from creativity, such as new technology, brand, design, or literary and artistic works, to which exclusive rights are recognized. Because there are so many things involved in starting a business, most startup entrepreneurs will neglect to protect their intellectual property as it does not seem so important at the time. However to protect one's IP to the best of his ability, one has to identify which form of IP protection would be best suited for their ideas and products.

Trademark Registration

A new business usually has a brand name that is new and innovative in nature. The advice to the startup community is to trademark at least their name and logo in order to prevent others from ripping off the name of their company. A registered trademark will do this in two ways. First, the trademark will appear when other entrepreneurs conduct a trademark search. Secondly, if registering for a trademark fails to deter imitators then the startup at least has a sound legal argument in Court. Thirdly in a single brand or logo, trademarks can convey emotional attributes and messages about you, your company, and your company's reputation, products and services. Trademarks also act as an efficient commercial communication tool to capture customer attention and make the business, products and services stand out.

The Government has provided incentives to such startups to protect their trademarks by giving them a 50 percent discount in the official fees for filing a trademark application. For e.g. the official fees for filing an application for registration of a trademark of a startup is Rs 5000 as opposed to Rs 10,000 that other enterprises have to pay. Further, the government has appointed start-up facilitators specifically for the prosecution of Trademarks application and will pay them out of their own pocket for helping Start-ups in the process of registration of trademarks.

Patent Protection

Ideally, a startup should file for a patent at the earliest possible stage in the startup's evolution because patent protection is time-sensitive. A startup developing a new product should always apply for a patent for the product before launching it into the market. For once a technology becomes "public knowledge" before the startup files a patent application, it will not be awarded a patent because the invention will already be known to the public.

The Government has provided incentives to such startups to protect their products by giving them a 50 percent discount in the official fees for filing a patent application. For e.g. the official fees for filing an application for grant of a patent of a start-up is Rs 4000 as opposed to Rs 8,000 that other enterprises have to pay. Further, startups are also exempted from paying professional fees to legal counsels who file trademark applications on their behalf.

Copyright Protection

The product/industry on which the startup is working on determines whether a copyright protection is needed or not. For instance, if it the startup is a software company, it is essential that the developer assesses whether it is susceptible copyright infringement or not. Also, whether the copyrighted software/product has a long shelf life or not has to be determined.28 The answers to the aforementioned can help decide whether it is plausible to copyright the software or not. Although obtaining a copyright is not a costly affair, but it is always advisable to copyright the product if there is a threat to the commercial exploitation of the same.

Domain Name Protection

In this age of social media, a domain name is a must for any startup. A domain name is an easy-to-remember translation of an IP address, through which users can access information. By registering their brand name as a domain name, the startup can not only market their presence in the real world but also the digital world. Having a presence online ensures that the startup can reach all age groups including their target audiences and also make their products accessible from any part of the world. In India, domain names are treated at par with trademarks and therefore can also be protected as a trademark. If a registered trademark is adopted by any third party then the owner also has right under INDRP ICAAN policy to file for arbitration for the transfer of domain name similar to their trademark.

Trade Secret Protection

A trade secret is confidential know-how that has value to the success of a business. It is any information that can be used in the operation of a business and is sufficiently valuable to afford an actual or potential economic advantage over others. A startup in the nascent stage of business development should consider using non-disclosure agreements when discussing sensitive and confidential information with employees or third parties, to safeguard their IP.

Design Protection

A design under the Designs Act, 2000 is defined as features of shape, aesthetics, configuration, pattern, ornament or composition of lines or colors applied to any article by any industrial process or means. The Act provides protection or registration right only to the designs that are aesthetic in nature and nit dictated by a functional feature. All startups should apply for registration of all their designs well ahead of the launch of their business. Having a design protection protects the owner of the startup against another person creating a similar or identical design, even in overall impression, regardless of whether it was inspired by the registered design or created independently Further, startups are also exempted from paying professional fees to legal counsels who file design applications on their behalf.

Plant Variety protection

Plant varieties are protected under the Protection of Plant Varieties and Farmers Rights Act, 2001. Nowadays innovative startups such as Indigo Agriculture who create drought-resistant seeds coated with tiny microbes are on the rise. These startups should definitely protect their methods and modes of seed production and breeding in order to ward off infringing parties.

Conclusion

A startup's intellectual property is one of its most valuable assets. Accordingly, a startup should develop a comprehensive strategy to use starting at the inception of its business to protect its intellectual property. Ignorance of law is no defense and same cannot be pleaded in case of IP rights as they provide time bound protection and hence it is imperative that IP rights must be secured at the first instance.

Footnote

28 https://bizztor.com/intellectual-proper tyrightsprotection-for-startups/

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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