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Protecting your IP Assets as a Part of your Exporting Strategy

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Intellectual property (IP) rights include various types of intangible corporate assets which you will want to protect and use and exploit on a daily basis in your business.  These include trademarks and design rights, copyright, patents, trade secrets or confidential information, and other categories of rights. Even the smallest companies have such proprietary information and proper protection for these IP assets can enable companies to get the most out of their branding.  As you prepare to export your products and services, there are many considerations that go into the development of a fulsome exporting business plan, and you will want to be sure to have an international IP strategy in place that aligns with your commercial objectives. 

A starting business planning recommendation is to conduct an IP audit.  This consists of assembling a list of key IP items that your company already owns, or might wish to protect in the future, as well as some understanding of their relative importance. You can assemble a basic IP inventory on your own, or you can enlist the assistance of an IP lawyer to help you to assemble this information.  Regardless of how you build it, this will be an important asset for you in the understanding of the relative placement of IP in your company.  With an inventory in hand, international strategic planning can be started.

One of the things that exporters must keep in mind is that the laws of each country are different with respect to the protection of various types of IP.  Certain types of IP assets are protectable, or not, by statutory IP rights or registrations in some countries.  Presumptions of ownership can vary by IP type and country, and the like. For example, the patent law in Europe is different than the patent law in Canada and the US on the patentability of computer software.  In another example, assets registered as trademarks in some countries might be protected by copyright in others. Dependent upon the geographic footprint of your marketing plan, and the nature of IP assets to be protected, localized legal awareness is necessary to ensure that the right protection is understood and used.  Building an IP plan that accommodates local legislative requirements or options is a significant competitive advantage to your company.  This can also help in terms of prioritizing your foreign plan (since virtually no company has an unlimited legal budget and depending upon your overall export decision matrix and the relative strength of local laws, you can try to “get the most bang for your buck” in terms of your legal spend through such awareness).

Particularly where your IP assets are not ideally protectable locally under the law of the country in question, contracts with customers, distributors and other parties become paramount in importance as a supplemental layer of protection (even with respect to trade secrets and other confidential information – customer lists, corporate information etc.).  These are again subject to local law and should be considered with local legal counsel at the time of their creation.

Two other key planning factors in your international IP protection strategy are the timing of your overall market entry plan, local business model, as well as relative costs or budgeting.  Your IP strategy should accommodate your overall business timeline – for example if you plan to be in a particular geographic region in three years, and it will take two years to register and protect your IP assets there, these relative timing indicators can dictate the appropriate times for the triggering of foreign protective actions as well as being used to best inform your budgeting in terms of costs.  Knowing when things need to be triggered and finished, and understanding the nature of the relative timelines can help to develop a most accurate budget of costs and other corporate resources required in this area.  Another timing element to consider, particularly in the trade secret or patent space, is that certain home market decisions about disclosure, filing or otherwise can have positive or negative effects on your ability to protect in foreign markets at a later date, and this should be factored into your planning as well.

As the geographic footprint of your business expands, it is important to ensure that your have taken the appropriate measures in foreign markets to protect your IP assets in order to enjoy the maximum economic benefit of your intellectual creations.  Aligning your IP strategy with the remainder of your business plan, rather than simply protecting IP for the sake of doing so in a list of indeterminate foreign markets, will yield a plan this is more easily understood and executed throughout the organization.  You should consider consulting an intellectual property professional to put yourself in the best shape on these points.

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OUR TEAM:

Cory Furman, Q.C.

Lawyer,
Patent & Trademark Agent

Anna Hengen

Legal Assistant

Lorna Giljam

Business Manager

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