Failing to Develop a Proper Strategy
One of our favorite clichés is “it’s easy to make a mistake, but hard to clean it up.” The challenge for those who rush to market, without vetting a strategy for the best chances of success, is that unintended consequences that often occur. The range of problems runs the gambit from minor to major. Some examples include:
- One of your licensees is using your trademarks in an objectionable manner hurting the brand’s reputation. Other licensees are threatening to cancel their licenses and/or a joint venture is threatening dissolution.
- Your IP licensee isn’t placing sufficient marketing dollars behind a product and royalty revenues are down.
- There is a great opportunity, but your contracts preclude you from acting, and the window will close before you have a chance to capitalize.
- You suspect your joint venture partner is providing false sales reports, but forgot the right to audit the books.
- Your partner is stuck in bankruptcy court – along with a set of rights to your IP - and there is no chance to use it for the next several years, while the bankruptcy is pending (not to mention, your royalties will be zero until the restructure is complete).
Irrespective of the problem (really the symptom) the cause is most often…incomplete planning.
Failing to Properly Market the IP
This issue requires strong coordination between business analysis and legal. Additional considerations include:
- Identifying certain aspects of your IP that differentiate it from other alternatives available (strengths).
- Identifying issues with your IP that might affect its marketability (weaknesses).
- Not analyzing the market potential, applicable industry, or the right targets (assessing opportunities).
- Not properly assessing threats to your brand and/or technologies (threats).
- Not performing an IP valuation (developing a pricing strategy).
- Not considering existing markets and leaving open the option to exploit future markets (trends).
- Not considering alternative technologies or brands available (competitors).
Using Forms Found on the Internet (the DIY approach)
Perhaps it’s a cynical viewpoint, but in our experience the Internet has a few good examples and just as many bad examples. The challenge for most people is distinguishing between what is good and what isn’t. More importantly, the common user doesn’t understand how or why samples found on the Internet were created in the first place. We’d suggest before using a form on the Internet, perhaps it’s wise to ask these questions at minimum:
- Why was this agreement created?
- Can I point to a place where it was successfully used?
- Is it still being used?
- Has this agreement been tested in Court?
- Will this contract be upheld in my jurisdiction?
- Are the provisions of the agreement still valid under current law?
- What’s missing from this agreement?
- Does this agreement really meet my needs?
Failing to Consult with an Experienced IP Firm Early-On
Monetization is hard to do by yourself. It’s a complicated process that requires knowledge in many areas including marketing, finance, legal, and sometimes other disciplines. Having experienced counsel in your corner provides a stronger foundation and helps turn optimistic vision into an effectual strategy.
We’re Here to Help
The attorneys at Nexio Law Firm are committed to helping our clients achieve their business objectives and maximize return on their talent and inventions. If you decide to create and implement an IP monetizing strategy, it’s important to do all the necessary preparation to ensure your intellectual property—and your business—are well protected under the law. We’re here to help you every step of the way. We can be reached at (949) 478-6830 or complete the contact form and we’ll be in touch soon.