IP Monday Law Blog 

The phases of launching a startup move fast, such as branding, prototypes, pitches, and investor decks. But amid the excitement, intellectual property (IP) strategy often gets left behind. The result? Costly mistakes that can derail growth or scare off investors.

Below are the most common IP missteps—and how to avoid them before they become expensive lessons:

1. Skipping the Trademark Search

Falling in love with a name before checking availability is a classic blunder. A professional knockout search can reveal conflicts before you invest in branding, packaging, and websites. It’s much easier (and cheaper) to pivot early.

2. Waiting Too Long to File a Patent

Provisional filings are fast, affordable, and protect your priority date. Waiting until your product is on the market—or worse, publicly disclosed—can permanently forfeit your rights.

3. Confusing “Ideas” with “Ownership”

Many founders assume that simply thinking of a name, product, or concept gives them ownership. But IP rights only arise when the law recognizes them—through filing, fixation, or use.

• Patents only exist once an application is filed and granted by the USPTO.
• Copyrights arise automatically once a creative work is fixed in tangible form (like written or recorded), though registration is required to enforce those rights in federal court.
• Trademarks gain limited “common law” rights through actual use in commerce, but strong, nationwide rights only come from federal registration.

Without proper filings, your “ownership” might not extend beyond your local area—and may not hold up when a competitor with a registered mark comes along.

4. Ignoring Employee and Contractor Agreements

Every line of code, logo, and prototype should belong to the company—not the individual who created it. Without written agreements, ownership can default to the creator, not the startup.

To avoid costly disputes later, make sure IP ownership is clearly defined in your employment agreement or, ideally, in a separate invention assignment or work-for-hire agreement executed at the time of hire or engagement. These agreements ensure that all intellectual property created within the scope of work is automatically assigned to the company.

5. Using Stock Images or Open-Source Code Without Understanding the License

Not all “free” content is free for commercial use. Failing to comply with license terms can trigger infringement claims or takedowns. Always review the license and, when in doubt, obtain written permission or use properly licensed assets.

6. Treating IP as a Last-Minute Investor Box-Check

Smart founders build IP into their business plan from day one. Investors value companies with protectable IP—it signals foresight, defensibility, and a scalable competitive advantage.

Proactively filing for trademarks, patents, and copyrights also provides powerful indirect benefits:

• It makes your brand publicly searchable, forcing others to reconcile with your rights when they encounter your mark during their own clearance searches.
• It enhances the perceived ownership and legitimacy of your business when you can use ®, “Patent Pending,” or © notices on products and materials.
• From a patent perspective, it positions your company as an innovation leader in your field—something investors notice when deciding where to put their capital.

The Takeaway

Your startup’s value often lies more in what you’ve protected than what you’ve built. Laying the IP foundation early keeps your momentum safe as you scale.

Contact Foster Swift's IP Team to learn more about early-stage IP protection strategies.