Discussing Intellectual Property | ventureLAB

Discussing your inventions or designs can be complex, especially with the nuances of intellectual property (IP) laws to consider. To navigate this effectively, here’s a checklist of key points to ensure compliance and avoid unintentional pitfalls.

Confidentiality Before Protection: If you’re planning to talk about your inventions, it's crucial to keep details confidential until you've secured formal protection, such as a patent, industrial design, or trademark. Both patent and industrial design rights must be novel at the time of examination, implying that premature disclosure could compromise your rights. While North America allows some leeway with grace periods for self-disclosure, other jurisdictions do not offer the same protections.

Trademarks in Canada: In Canada, trademark registration is not mandatory, but it’s advisable to file your application before any disclosure. This is because of the concept of trademark squatting, where someone else could register your trademark, potentially requiring you to negotiate to use it.

Post-Application Considerations: Once you have applied for protection, the risk of damaging disclosure is minimized, but caution remains essential. For example, while a provisional patent application grants you the right to use “Patent Pending,” depending on Canadian and U.S. laws, misrepresenting your invention as “patented” before a patent is granted may lead to legal repercussions.

Product Marking: Properly marking your products is important. For instance, marking communicates to the public that your invention is protected, which can help deter claims of "innocent infringement" by others who might infringe your rights while claiming ignorance. It’s important to consult an IP professional about effective marking strategies, as this can influence damage calculations in infringement cases. In Canada, the letter "D" enclosed in a circle signifies a registered industrial design.

Trademark Symbols: In the U.S., the ™ symbol is used for unregistered trademarks, while
® is reserved for registered ones. In Canada, these symbols don't have legal weight, but it's a best practice to use them. Copyright notices, although not mandatory in Canada, include the © symbol, the holder's name, and the year of first publication in jurisdictions that require them.

Discussing Competitors’ IP: When making comparisons with competitors, such as positioning your invention against theirs, it’s essential to tread carefully. Competitors can pursue legal actions for trademark infringement if their trademarks are reproduced without permission, and this extends to logos, which may also fall under copyright infringement. Moreover, falsely portraying competitors can lead to claims of false advertising, especially if they can prove losses stemming from such actions.

Legal Consultation: Prior to any comparative advertising, seeking legal advice is critical. Ensure that any claims made are truthful, factual, and supported by concrete evidence, such as test results or surveys. It’s advisable to avoid superlatives or negative remarks about competitors and to focus instead on presenting verified differences between products.

In summary, navigating the discourse surrounding your intellectual property requires a strategic approach to confidentiality, legal protection, marking practices, and understanding the implications of discussing industry competitors. By adhering to these guidelines, you can effectively present your innovations while safeguarding your IP rights.