IP law for startups: protect your brand, design and technology early

A startup’s name, design and technology can be among its most valuable assets. Their legal protection should be considered early in the planning process. Which steps should come first depends on the business model, stage of development and planned disclosures.

IVANOV.LAW examines IP protection and the allocation of rights between the founders and the company. On that basis, we agree with you on the appropriate sequence for searches, applications, contracts and company formation.

Four areas to consider when planning your startup

1. File the trademark

The name is a startup’s first asset and the first thing others copy. Before filing we search for earlier trademarks, company names and domains that could block you, and we define the classes of goods and services to fit the business you will have in three years, not just the one you have today. Then we file: with the DPMA for Germany, with the EUIPO as an EU trade mark covering all member states, or through WIPO for further countries. A trademark lasts ten years and can be renewed indefinitely. If it is challenged, we represent you in opposition and cancellation proceedings.

2. Registering a design

Product shapes, packaging and graphic designs may qualify for design protection if the legal requirements are met. Novelty and individual character are particularly important.

Disclosure before filing can jeopardise protection. A grace period may apply to certain disclosures made by the designer or their successor in title. This does not mean that every earlier disclosure is harmless. Before disclosing a design, you should therefore clarify where protection is needed and on what legal basis. A registered design can be protected for up to 25 years if renewed in time.

3. Check the technology

Before money goes into development, two questions need answers: what is the technology worth legally, and does it infringe anyone else’s rights? We search the prior art and assess whether an invention is patentable or whether a German utility model, a fast and unexamined right, is sufficient. We run a freedom-to-operate check: which third-party patents stand in the product’s way, and how can the technical design be adjusted so they do not. For software, we assess copyright protection for the code, whether a technical invention may qualify for patent protection and how to safeguard confidential know-how. And one rule above all others: public disclosure before the patent application can destroy the novelty of the invention. Before a pitch, a trade-fair demonstration or a publication, clarify whether a filing is needed first and which confidentiality measures apply.

4. Form the GmbH or UG

We guide you through forming a German GmbH or UG and arrange the allocation of IP rights and rights of use between the founders and the company. Transferable IP rights are assigned or licensed as appropriate; for software and other works, we secure the necessary copyright usage rights. This includes IP and non-compete clauses in the shareholders’ agreement and agreements with employees, freelancers, agencies and developers. Employee inventions are addressed under the German Employee Inventions Act.

Then: contracts and trade secrets

What cannot be registered is protected by confidentiality and contract. Trade secrets under the German Trade Secrets Act only count as such if reasonable protective measures are in place. We provide non-disclosure agreements, development and licence agreements, SaaS and platform terms, and the documentation a startup has to present in a funding round or an exit.

What founders get

• Clear allocation of rights: the company holds the IP rights and rights of use required for its business model.
• Identify infringement risks early: relevant third-party IP rights are searched and legally assessed before market launch.
• Prepared for investors: the IP documents for a due diligence are prepared before an investor asks for them.
• One firm for all four steps: specialist attorney for IP law, LL.M. IP, representation before the DPMA, EUIPO, WIPO and the German courts.

About to incorporate, or already incorporated with the IP still sitting with the founders? Tell us where you stand and we will say in the initial assessment which step comes first.