Mind the Gap!

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It’s a problem for all entrepreneurs. You find a gap in the market, whether a service or a product, and head-down you go for it!  The problem with a gap in the market is how do you know you are the first to spot it and exploit it? If you’re not, expect at some point, possibly after much financial investment, to be pursued for breaching what is someone else’s idea, brand or design. If you are lucky enough to genuinely be the first to meet a marketplace need and set up a viable business model to feed it what, if anything, have you done to protect your unique position?

Welcome to the world of Intellectual property rights for the start-up.  You would be an exception if your tech’ start-up had no ideas worth protecting. Nearly all do. Whether it’s a computer code, algorithm, primary research or prototype and even if you don’t yet realise it, as a start-up, to survive let alone thrive you must ensure your Intellectual Property Rights (IPR) are fully protected. Sadly, far too many ignore the gap between delivering the product and service to the market and meeting client’s needs and watching their backs for unfair competition or infringement.

IPR is your friend
Entrepreneur start-ups need to be clear about IPR. Get to know this area of law. In doing so, you give yourself the best chance of survival.  Right from the get-go when you find the perfect business or product name protect it with a trademark. Words, phrases, numbers, designs, logos and even 3D shapes can be registered as trademarks. This exercise alone will tell you whether you are the first to try and protect it. If you are, it will stop others using it. Too many start-ups are ‘run out of town’ and forced to cease trading because they failed to consider IPR early enough whilst others, usually established businesses, did not. For a start-up to become embroiled in an IPR legal dispute serves only to sap its energy and finances. In many cases it leads to closure. Designs and trademarks should be registered. If possible, consider a patent which can ringfence your new way of doing something. It provides a legal opportunity to exploit and profit from your creativity.

Know your market
Don’t let the often informal, co-operative atmosphere of your start-up lull you into thinking formal IPR protection is not for you. It almost certainly will be. At its most basic a non-disclosure agreement with colleagues, potential business partners or clients can protect your trade secrets.  The clever start-up takes time to analyse the existing IPR ‘landscape’ of the business idea. Who, if anyone, is already in that space or close to it? Might they pursue you? “Prior search”, as IP professionals call it, is vital to avoid infringement and prepares the start-up business – down the line – for that all-important commercialisation stage of business growth. The monetisation of the service or product concept and pay-day for the entrepreneur.

Having an idea and the energy to deliver it to market will all be in vain if, at the time of scale-up, you fail to attract investment from a business dragon because you neglected your IPR. You have a choice – you needn’t be that business.

Murray Fairclough
Development Underwriter
Opus Underwriting Limited.

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