“Protect your Intellectual Property”
This post is Part 4 in the series titled Navigating the Application Process in the Medical Cannabis Industry, where Mora Mota Group looks to share some of the keys to success as a small business startup look to emerge within this industry.
With the help of a distinct name or logo, your Company can distinguish itself among your generic competitors.
As you brand your Medical Cannabis products, you equip your company with the opportunity to sell the your products. By advertising and marketing those unique features and distinguishing qualities of your brand, your venture will benefit by the increase in reputation and character.
Despite spending a considerable amount of time and money developing these new assets, intellectual property is highly vulnerable to thieves looking to use your property for their own financial gain. As a business owner, it is important to know the legal protections afforded to you so you may gain sustainability for the future.
In this post, Mora Mota Group will identify the various types of intellectual property, their different features and qualities, and what to do to protect your intellectual property from infringement.
Types of Intellectual Property
Intellectual Property (IP) consist of various “creations of the mind” and the Constitution provides protection for the authors and creators of such property. IP is considered a highly valuable, intangible asset because it represents the ideas, creations, and communicates a Company’s reputation to the world.
Each type of IP has its own features and qualities and are protected under State and/or Federal laws; the four main categories of IP include Copyright, Trademark, Patent and Trade Secret:
Copyright: Consists of original works of authorship, fixed in any tangible medium from which they can be perceived, reproduced, or otherwise communicated;
Trademark: Consist of words, names, symbols, or designs used by producers to identify their goods in trade;
Patent: Inventions or designs on a specific subject matter that are useful, novel, nonobvious within the subject matter, and meet the sufficiency of disclosure by the USPTO; and
Trade Secret: Information that derives independent economic value from not being generally known and is the subject to efforts that are reasonable under the circumstances to keep it a secret.
Infringement Issues and Consequences
Businesses dedicate enormous resources to developing unique and engaging names and trademarks. However, as technology has allowed us to communicate globally, the possibility to exploit these intangible assets has grown exponentially thanks to increased access to content.
Certain ways infringement can hurt Medical Cannabis Companies include dilution of the brand where the distinct character of the Company’s mark can be diminished by an infringer’s unauthorized use; exhausting resources as IP requires cash resources and human capital to create, and infringement decreases the value of both; hurts reputation since the impact on a Company’s reputation from infringement can be devastating; and court costs because in the event you do end up in court, you may incur massive legal fees to successfully win an infringement case.
Who needs to protect their IP?
Everyone! No matter if you own a Dispensary, Processing Company, are an Infused Product Maker, or Wholesale Cultivator, all segments of the Medical Cannabis Industry produces IP on a continuous basis. Knowing how and what you need to protect is necessary in the event your IP is compromised, however, there are many steps that must be taken to secure your assets.
Tips for Medical Cannabis Businesses
While you may have specific IP you wish to protect, either State or Federal law may apply, and certain actions must be taken. Depending on the IP you own, you may have to use the property in commerce, while other IP receives protection the moment it’s created.
The Difference between State and Federal Law: As Congress has determined Cannabis to be a Schedule 1 Controlled Substance, the USPTO, the agency in charge of issuing and protecting Trademarks and Patents, almost never processes applications for Cannabis-related marks and very rarely allow for Cannabis Patents to be approved. Nonetheless, Medical Cannabis Companies should understand what protection is available to them at the State level to protect their assets in the event infringement occurs within the States.
What is/isn’t infringement: IP law affords the creators of certain content the exclusive rights to use and distribute the intangible asset limited to the specific nuances of the IP. A trademark may lose its protection if the mark becomes "genericized" or if a business secret is made public in the course of doing business. It is important for business owners to understand the limits of the protection granted by certain Intellectual Property law.
Registering your IP: While your Cannabis-related Trademark may not receive Federal protection, however, State Trademark registration may be available to your in your specific State; copyright law grants the creator of the IP exclusive rights to use and disseminate their work. However, in both cases, the owner must first register their property before they may sue for damages in a Trademark or Copyright infringement case.
As the Medical Cannabis Industry continues to mature, businesses must further devote resources toward protecting against violations of their property rights. Business Owners should seek the advice of an experienced IP lawyer or business consultant to understand the nuances that are required before registering their IP in order to help you navigate the registration process.
Check back next week to read Part 5 on Navigating the Licensing process in the Medical Cannabis Industry as Mora Mota Group provides more advice for small business startups in the Medical Cannabis Industry.