What Every Start Up Should Know about Intellectual Property Law

What Every Start Up Should Know about Intellectual Property Law

 by Charles R. Macedo and Michael J. Kasdan

Identifying what differentiates a venture or product line, and the right type of intellectual property that can be used to protect it can be critical to a start-up's success. This article examines the types of items that can make a start-up (particularly an internet start-up) special, and the available types of intellectual property that can be used to capture and protect it.

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Every new business venture or product line has, at its root, an idea that makes it special, which is intended to distinguish the new venture from other competitive offerings already in the market or coming to the market. Identifying what differentiates a venture or product line, and the right type of intellectual property that can be used to protect it can be critical to a start-up's success. This article examines the types of items that can make a start-up (particularly an internet start-up) special, and the available types of intellectual property that can be used to capture and protect it.

2. Introduction: Common Aspects of Internet Ventures

Traditionally, Internet ventures make product or service offerings through a website. However, with the growth of additional powerful access points, such as smart phones, tablets and who knows what will come next, mobile applications and mobile marketplaces have also increased in importance to start-up ventures.

There are certain fundamental aspects that Internet sites (whether social media websites or otherwise) have in common.

First, an Internet site resides at a domain name or Uniform Resource Locator (URL), which acts as the address of the website.

In addition to an organizations' own website address, the organization may also present itself to the public through other portals, like corporate or fan pages on other websites (e.g., Facebook fan page, Pinterest fan page, Twitter feed page, etc.). They may also be accessed through downloadable applications from App Stores (e.g., Apple's App Store, the Google Play App Store, Amazon, etc.)

Furthermore, social media may be directly integrated into an organization's websites by allowing for users of the websites to comment or share information in response to postings on the websites (like blogs) or products offered for sale (like product reviews or commentaries). Social media may also be integrated in less direct fashions, such as through sharing links which allow a user to tell his or her friends on a social media website like Facebook that the user "likes" the product, article or website, or by providing a link in a "tweet" on Twitter.

Websites and mobile applications are now commonly used to sell products, content, or to display other kinds of information.

In addition to merely displaying data or other information in response to an inquiry, websites and applications can also obtain, process, reformat and/or display data obtained from other sources. For example, the social media management tool, Hootsuite (https://hootsuite.com) provides feeds and posts from various social media sites, such as Facebook, Twitter, LinkedIn, and FourSquare. Similarly, the social magazine app, Flipboard (https://flipboard.com/), aggregates content from numerous content channels and reformats them as an online magazine.

As discussed further below, these websites and mobile applications can be protected by intellectual property rights. In addition, they can potentially infringe upon others' intellectual property rights. Thought should be given both to protecting key IP as well as reducing the risk of third-party claims of infringement.

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Charles R. Macedo and Michael J. Kasdan are Partners at Amster, Rothstein & Ebenstein LLP. Mr. Macedo is the author of The Corporate Insider's Guide to U.S. Patent Practice. Mr. Kasdan written and spoken extensively on IP strategy issues pertaining to start-ups, and was recently named to the IAM 300 as one of 2013's World's Leading IP Strategists. Their practice specializes on intellectual property issues including litigating patent, trademark and other intellectual property disputes, prosecuting patents before the U.S. Patent and Trademark Office and other patent offices throughout the world, registering trademarks and service marks with the U.S. Patent and Trademark Office and other trademark offices throughout the world, drafting and negotiating intellectual property agreements, and counseling clients on an array of IP issues. They may be reached at cmacedo@arelaw.com and mkasdan@arelaw.com.