Should You Protect Your Intellectual Property? Take the 3-Part Test

Nearly every business I know has a treasure chest of intellectual property assets. Companies are teeming with creativity and ingenuity inside their proverbial “four walls.” But it is simply not practical to formally protect every creative work. Even our most innovative companies must decide when to seek registration for their various trademarks and copyrights and when to prepare and file patent applications for their new inventions.

Prioritizing those assets that get protected from those that don’t may require some fancy footwork, but you can streamline the process if you can answer YES to three questions:

  1. Does it have commercial value?
  2. Is it part of my commercial advantage?
  3. Am I willing and able to enforce my rights?

The Test

1. Does it have commercial value?

Bottom line, will people buy it if it is offered for sale?

Consider the following … Imagine that you are an aspiring children’s book author with a lot of promise and, like many great artists, you draw inspiration from your own life.

Your daughter Beatrice loves playing outside and has become fascinated by insects — particularly butterflies. As a surprise present for her recent birthday, you wrote a sweet story for her, and aptly named it Beatrice and the Butterfly. It was such a hit with her that you have continued to develop the story and are now working on a complete series, including Beatrice and the Bee and Beatrice and the Bedbug. In fact, both Beatrice and her brother Brad have gotten in on the action and given a few plot thickening suggestions. Beatrice and the Butterfly is a family favorite.

Should you file an application with the U.S. Copyright Office to formally protect Beatrice and the Butterfly?

We have established that the Beatrice and the Butterfly story has tremendous value with your family; but will the public agree?

Your task is to determine whether it has value in the marketplace. To do so, you will need to conduct market research: identify your customers, channels of distribution, and price point.

In this case, your customers are probably parents with small children, teachers, and perhaps some educational organizations. You will likely distribute the book through traditional and online retailers, such as your local bookstore and Amazon.com.

Your price point will be determined by factors such as your costs, desired profit margin, and price tag on similar products. If you can ascertain that your target audience shops for children’s books involving nature themes for $9.99 on Amazon.com or in your local bookstore (just ask the proprietor), then you just might be on to something.

The process of writing a business and marketing plan will force you to answer these and other relevant questions necessary to determine whether your book has commercial – and not just personal – value.

2. Is it part of your competitive advantage?

Ask yourself a series of questions to determine whether Beatrice and the Butterfly will differentiate you and your books from other children’s book authors and their works.

  • Will this particular story (or series as the case may be) help you outperform your competition?
  • Will it help you stand out from the crowd?
  • Will it compel readers choose your books over other books with similar themes?
  • Are your costs such that you can offer it at a lower price and/or in multiple formats (e.g, as an ebook)?
  • Is there some characteristic of the story that will allow your readers to have a more pleasurable or enjoyable experience that similar books offer?

If you conclude that Beatrice and the Butterfly can do more than make you awesome to your kids – it just might make you awesome to a lot of kids – then it may be part of your competitive advantage.

3. Am I willing and able to enforce my rights?

Here also, ask yourself a series of questions to determine whether you have the interest, in some cases the moral courage, and financial means to enforce your rights.

  • Will you go on the offensive and send a cease and desist demand to someone even if it seems “mean”?
  • If the offending party doesn’t comply, are you willing to follow through with the enforcement action and file a lawsuit?
  • Can you afford to hire an attorney who specializes in enforcing intellectual property rights to help you?
  • Is the value of your intellectual property sufficient to merit the expense of defending your rights?

In the United States, intellectual property rights are exclusive rights – emphasis on exclusive. Our intellectual property laws give you the right to exclude others from using your creative works. They do not create any new rights in the work itself.

For example, a patent grant is the right to exclude others from making, using, or selling the invention. It does not impose a duty on the patent holder to actually make, use, or sell the invention. Similarly, a federal copyright registration provides the copyright owner with the right to exclude others from copying or selling the copyrighted work. Here also, the law declines to impose a duty on you to make copies of your works or to distribute them (e.g., sell, donate, etc.).

Given the nature of these exclusive rights, enforcement is inherently confrontational. You as the property owner are responsible to enforce your rights (unfortunately, there is no such thing as 911 for IP matters or the IP police), and if you fail to defend what is lawfully yours, you may risk losing those rights. As the adage goes … you snooze, you lose.

In short, unless you are willing to enforce your rights and follow through with legal action (preferably with the assistance of a competent lawyer) if necessary, it makes no sense to spend your resources seeking formal protection. Admittedly, it might be “cool” to own a trademark or copyright registration, but your investment in securing that registration certificate will yield no return if it is rendered to nothing more than wall art.

Your Takeaway

Beatrice and Butterfly has made you the hero of your home, but unless it has the potential to make you a hero in other children’s homes too, consider carefully whether it is worth your time and money to pursue formal protection for it.