If you are starting a business or entering a partnership, the intellectual property questions are cheapest to answer at the beginning. We help Maryland businesses audit what they own, confirm they are not infringing anyone else, and get agreements in place before there is a dispute to argue about. To arrange a complimentary phone or in-person consultation, call Jan I. Berlage or David L. Hankey at 410-752-9300.
Why the timing matters
Nearly every expensive IP problem we see was inexpensive to prevent. Registering a mark before a competitor adopts something similar costs a fraction of contesting it later. Having employees and contractors sign agreements costs almost nothing next to litigating who owns a design after someone leaves. Clearing a name before the packaging is printed costs less than reprinting it, and far less than defending an infringement claim you could have seen coming.
Due diligence does not eliminate risk. Infringements happen to businesses that did everything properly. What it changes is what happens next, meaning whether you have the documents to prove ownership, and whether you are the one making the argument or answering it.
What an IP audit covers
We start with an inventory of your intellectual assets, existing and in progress, then work through the questions that decide whether you actually control them.
- What do you own outright? Registered marks, patents, copyrights, and the trade secrets you are treating as protected.
- What do you only have permission to use? Licensed fonts, stock images, software, and third-party content in your product or marketing. Businesses routinely discover they do not own something central to their brand.
- Who created it? Work by employees generally belongs to the employer. Work by independent contractors generally does not, absent a written agreement. This is the single most common ownership gap we find.
- What are you exposed on? Whether your name, mark, product or campaign infringes someone else’s rights, checked before launch rather than after a demand letter.
- What is protected but should not be relied on? Registrations lapsing for want of a maintenance filing, or trade secrets nobody has actually kept secret.
The output is a plan. What to register, what to document, what to renegotiate, and what to let go. Assets that cost money to maintain and earn nothing are worth identifying too.
Partnerships and new ventures
Going into business with someone? Establish what each side is contributing and who will own what the venture creates, before the venture creates it. Ambiguity here is comfortable at the start and extremely expensive at the end. It is also worth verifying that a partner actually owns what they say they are bringing.
Agreements with employees and contractors
We prepare confidentiality, non-compete, non-solicitation and IP assignment agreements, and their value depends entirely on whether they are enforceable.
One Maryland limit is easy to overlook. Under Md. Code, Labor & Employment § 3-716, non-compete provisions are unenforceable against lower-wage employees, measured against a multiple of the State minimum wage. A non-compete that is void by statute protects nothing, however carefully it is drafted, so where your workforce sits in the wage structure is a question to ask while these agreements are being written rather than after someone leaves. For confidential information specifically, a well-drafted confidentiality agreement is often the more durable protection anyway. See trade secrets, non-competes and employee IP and confidentiality agreements.
Talk to us before you launch
Our attorneys have over fifty years of combined experience in Maryland intellectual property law. Call Jan I. Berlage or David L. Hankey at 410-752-9300 to arrange a consultation. See also protecting trade secrets under Maryland law.