1. Make sure the company retains ownership of founder or employee IP

Under English law, the general rule regarding intellectual property is that the creator or author of the work automatically owns the IP rights to that work. This principle applies to various forms of IP, including copyright, patents, trademarks, and more. Many startups trip up on this point as they don’t have the appropriate contracts in place with their employees and founders to protect the company’s IP. You want to ensure that you have IP assignment provisions in your shareholder and employment agreements to ensure that any IP they create belongs to thecompany. It's not just about complying with the law – it's about securing your future.

2. Contractors or freelancers should enter into assignment provisions

This caution should also extend to anyone who works with the business, including contractors or freelancers. Remember: initially any IP they create belongs to them. You can protect your company’s interests by including provisions for IP assignment in their contractor or freelancer agreements.

3. Keep record of all intellectual property

The devil is in the details. Keep records of the development of your IP including confidentially marked drawings and drafts. These records act as protection during registration or disputes. Some intellectual property, like copyrights which include source codes, cannot be registered to show ownership, so you will need to find alternative ways to prove ownership. Whenever building new innovations, keep track of all records, such as email communications and any draft drawings and make sure that you date everything.  

4. Protect your brand properly and earn the mark: “TM/®”

Your brand represents who you are as an entity and if it is not protected, then it can be infringed or even stolen. Safeguard its identity by registering it as a trademark, which grants within your market. It’s important to trademark your brand in each jurisdiction in which your company operates, as there are different registration requirements in each jurisdiction. For example, if you want to operate in the EU and the USA,  it is not enough to trademark in the EU alone.  

You can trademark more than just your brand name or logo! You can also trademark words and phrases distinctive to your brand, such as Nike did with “Just Do It”. You can even trademark colours, sounds, scents and shapes. Heinz Baked Beans trademarked their infamous “blue” colour.  

Once your trademark is registered, you will earn the title next to your brand name “TM/®”

5. Do not make this mistake with your trademark registration

It is very important to remember that registering a name with Companies House or obtaining a domain name does not automatically grant you trademark protection and does not protect your brand from infringement. These processes are separate. You only legally protect your brand when you register a trademark with the appropriate intellectual property office(s), in the relevant jurisdiction.

6. Don’t forget about your copyright protection or known as ©

Creative works, such as literary, artistic, musical, dramatic, film and video, sound recordings, broadcasts, databases and software are automatically protected upon creation. When you think about what covers copyright, think: books, paintings, song lyrics, plays & scripts, spoken word, television and computer programs – it really does cover all creative works.

It is crucial to understand your rights and the terms governing the use of copyrighted work owned by others. These works are automatically protected for the lifetime of the creator plus 70 years, so you don’t need to register it.

7. Approach Open-Source Software (“OSS”) with caution

OSS actually falls under copyright law. When using OSS, it is essential to be mindful of licenses that you may require to distribute your software for free if combined with the OSS. Creators of OSS grant permissions through licenses. These licenses outline the terms under which others can use, modify, and distribute the software. Always make sure you understand the terms associated with OSS licenses, that you comply with those terms and that your data is protected.  

8. If you work internationally, consider international protection

If you have plans for expansion or are already operating internationally consider acquiring IP protection in those jurisdictions. This not only safeguards your property but also attracts potential investors.

9. If you’re sharing confidential information, use an NDA

When sharing confidential information with someone about your company, ensure that you enter into a confidentiality/ non-disclosure agreement (“NDA”). You should safeguard your information by implementing NDAs when dealing with employees, customers, suppliers or investors. NDAs serve as a tool, in protecting your IP and trade secrets.  

Many investors will push back on signing an NDA as they work with so many startups and it will be a waste of their time, so you may want to hold back on the NDA until you are at term sheet stage and investors are looking into your data room and sensitive confidential information.

10. Use IP provisions in customer and supplier contracts

Ensure that robust provisions regarding IP ownership and licenses are included in your customer and supplier contracts. Clearly outline the scope of the license provided to customers. Establish agreements regarding the use of IP with suppliers to prevent any potential issues related to infringement.

This list is by no means exhaustive and aims to give you an overview to kick off your business. For specific, bespoke support please book some time with one of our experienced lawyers for a competitive upfront fixed fee.

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