We invite you to read the column written by our senior associate, Carlos Lazcano, and associate Esteban Orhanović, from the Intellectual and Industrial Property Group, where they discuss the main mistakes entrepreneurs should avoid in order to protect their intangible assets.
Starting a business is a challenge that requires creativity, effort, and a clear vision of the business. However, in the enthusiasm of getting started, many entrepreneurs in our country overlook a fundamental aspect that can end up being costly: intellectual property. Neglecting to protect intangible assets can weaken the position of the business, open the door to legal conflicts, and stunt the growth of promising initiatives.
One of the most common mistakes is to start operating under a trade name and/or logo without having registered it as a trademark with the National Institute of Industrial Property. Registering the trademark prevents third parties from using the same or similar signs for the same or identical items. In many cases, we have seen businesses affected because a competitor (sometimes a former employee or collaborator) begins to use similar signs, and in the absence of registration, there is no possibility of filing trademark infringement actions.
In addition, the brand is an intangible asset that increases the value of the company, facilitates investment, and supports future expansion. As some startups unfortunately discover when it is too late, almost no investor or venture capital firm will be willing to finance a start-up if it does not have its trademark registered, since it is precisely the registration that gives it value and acts as a guarantee for the investor.
For this reason, it is highly recommended that, before becoming known under a name—ideally even before starting to operate in the market—you conduct a background search to verify its availability and proceed immediately with registration. If it is not available, come up with another name before making one known that does not have legal protection.
Similarly, it is also essential to register a domain name (for example, under the “.cl” extension) that reflects the name of the trademark, in order to guarantee your presence on the internet and prevent a third party from taking it.
Another recurring mistake is to omit confidentiality and non-competition clauses in employment contracts. It is essential to protect yourself through confidentiality clauses (and trade secret protection clauses, if applicable) and non-competition clauses (to the extent permitted by our legislation).
Likewise, in the technological, scientific, or industrial fields, another common mistake is failing to assess whether the company’s developments are patentable as inventions or at least as utility models. Not reviewing the viability of patenting can lead to missing the opportunity to protect a key innovation, which could then be exploited by competitors without legal consequences.
Finally, many ventures also generate original content: software, designs, texts, photographs, presentations, videos, and jingles, among others. A common mistake is not documenting authorship and the creation process, as well as not signing the necessary contracts for the protection, transfer, and exercise of the economic rights associated with such works (i.e., the powers by which they can be exploited economically) and ensuring that they remain effectively within the company.
Intellectual property is a strategic pillar that can determine the success or failure of a venture.
Column written by:
Carlos Lazcano | Senior Associate Intellectual and Industrial Property Group | clazcano@az.cl
Esteban Orhanović | Associate Intellectual and Industrial Property Group | eorhanovic@az.cl
