Protecting Intellectual Property: A Guide for Start-ups

For many start-ups, intellectual property (IP) is their most valuable asset. Your unique technology, brand identity or creative content sets you apart from the competition. But how do you protect these intangible assets? In this guide, we explain the main forms of IP protection and provide practical tips.

What is intellectual property?

Intellectual property includes all rights to creations of the human mind. Think of inventions, trademarks, designs and creative works. IP rights give you the exclusive right to exploit your creation and to prohibit others from doing so without permission.

The main forms of IP are:

• Trademark law: Protection of your company name, logo and product names
• Copyright: Protection of creative works such as texts, software and designs
• Patent law: Protection of technical inventions
• Design law: Protection of the appearance of products
• Trade name law: Protection of the name under which your business trades
• Trade secrets: Protection of confidential information

Trademark law: protect your brand

Your brand is your identity. It tells customers who you are and what you stand for. A registered trademark gives you the exclusive right to use your name, logo or slogan for your products or services.

Why register?

Without registration, you have limited protection through trade name law. This only protects you in the region where you operate and only against confusion. With a trademark registration, you have:

• Exclusive rights throughout the registration area (Benelux, EU, international)
• The right to take action against infringers
• The ability to license or sell your brand
• A stronger position in conflicts over domain names

How do you register a trademark?

You can register a trademark with:

• BOIP (Benelux): Protection in the Netherlands, Belgium and Luxembourg. Costs from 244 euros.
• EUIPO (EU): Protection in all EU countries. Costs from 850 euros.
• WIPO (international): Protection in selected countries worldwide.

Before you register, it is wise to conduct a trademark search. This will prevent your trademark from conflicting with existing rights.

Copyright: automatic protection

Unlike trademarks and patents, copyright arises automatically when a work is created. You do not need to register anything. Copyright protects:

• Texts (websites, blogs, documentation)
• Software (source code and object code)
• Designs and illustrations
• Photos and videos
• Music and sound recordings
• Databases (structure and content)

Who holds the copyright?

In principle, the creator holds the copyright. But be aware:

• Employees: Copyright on works created in the course of employment is automatically transferred to the employer.
• Freelancers and agencies: They retain the copyright unless you agree otherwise. Arrange this in your contract!
• Co-founders: Joint copyright can be tricky. Record who created what and how you will manage the joint work.

In your general terms and conditions, you can arrange what happens with copyright for assignments you carry out for clients.

Patent law: protect your invention

A patent gives you the exclusive right to exploit a technical invention. This is relevant if you have developed new technology that is unique and not obvious.

When is a patent possible?

An invention is patentable if it is:

• New: The invention has not been publicly disclosed anywhere in the world before.
• Inventive: The invention is not obvious to a person skilled in the art.
• Industrially applicable: The invention can be applied in industry.

Please note: software is difficult to patent in Europe. However, you can protect the technical effects of software.

Why a patent?

Patents are expensive and complex, but can be very valuable:

• 20 years of exclusivity for your invention
• The ability to generate licence income
• Attractive to investors
• A weapon against competitors

The costs for a patent range from a few thousand to tens of thousands of euros, depending on the complexity and the number of countries where you want protection.

Trade secrets: the underestimated protection

You cannot or may not want to register everything. Sometimes, confidentiality is the best protection. Think of:

• Algorithms and formulas
• Customer lists and pricing strategies
• Production processes
• Know-how and expertise

Since 2018, trade secrets have been legally protected. But you must take measures to keep them secret:

• Non-disclosure agreements (NDAs) with employees, partners and suppliers
• Technical measures (access control, encryption)
• A clear policy on what is confidential
• Employee training

IP and your team

As a start-up, you often work with co-founders, employees and freelancers. Make sure it is clear who holds which IP rights.

Co-founders

Stipulate in a shareholders' agreement that all IP created by the founders becomes the property of the BV, not of the individual founders.

Employees

Copyright is transferred automatically, but patents are not always. Include in employment contracts that all IP becomes the property of the employer and that employees will cooperate with the transfer.

Freelancers and agencies

Explicitly agree that IP rights will be transferred. This must be in writing. Also, ensure you have access to source files.

IP and investors

Investors look critically at your IP position. During due diligence, the following is investigated:

• What IP rights does the start-up have?
• Have all rights been correctly transferred to the BV?
• Are there any conflicts or claims from third parties?
• How is the IP protected against infringement?

A messy IP situation can be a deal-breaker. Make sure your paperwork is in order before you approach investors.

What to do in case of infringement?

Do you suspect that someone is infringing on your IP rights? Take the following steps:

1. Gather evidence: Screenshots, purchases, witness statements
2. Consult a lawyer: Assess whether there is actual infringement
3. Send a cease and desist letter: Demand that the infringement stops
4. Negotiate: A settlement is often more efficient than litigation
5. Legal proceedings: If negotiations fail, you can go to court

Do not wait too long to act. The longer you tolerate infringement, the weaker your position becomes.

IP protection checklist for start-ups

• Register your trademark in the Benelux or the EU
• Check if your domain name is available and register variants
• Record IP agreements with co-founders, employees and freelancers
• Consider a patent application for unique technology
• Use NDAs when talking to third parties
• Keep trade secrets genuinely secret
• Document who created what and when
• Keep source files and design documentation

Conclusion

For many start-ups, intellectual property is the foundation of their value. Protect it in a timely and careful manner. This does not have to be expensive: start with basic protection (trademark registration, good contracts, confidentiality) and build from there.

Would you like advice on the IP strategy for your start-up? At Helder Advocatuur, we help tech entrepreneurs protect their intellectual property. Feel free to contact us without obligation.