When starting or running a small business, entrepreneurs usually put protections in place for their physical property, financial assets, and operational systems. Intellectual property (IP), however, can easily be overlooked — even though it’s often the most valuable asset a small business has.
Understanding what counts as IP, and how to safeguard it, can help protect your brand’s competitive edge and reduce the risk of others using your ideas as their own. In this guide, we’ll cover everything you need to know about IP, including common types, proactive ways to protect it, and what to do in the event of infringement.
What is intellectual property?
The World Intellectual Property Organization (WIPO) defines IP as any creation of the mind that is used in commerce. For small businesses, this often includes the ideas, materials, and processes that set your business apart from competitors.
IP protections apply to both digital and non-digital assets, covering everything from your physical products and processes to internally created software and online content. Common forms of IP for small businesses include the following:
- Copyrights protect original creative works, such as written content, design files, videos, and software code. For instance, a marketing agency may copyright its blog posts and graphics to prevent others from repurposing them without permission.
- Trademarks include names, logos, slogans, and any other brand identifiers that help consumers recognize your business. For example, a bakery might seek out exclusive rights to its name and logo to prevent similar branding in the same geographical area.
- Patents protect new inventions, product designs, and technical processes. Consider a manufacturer that develops a proprietary material that gives them an advantage in efficiency or quality over their competition.
Some small businesses may also need to protect their trade secrets, which refer to any confidential information (e.g., formulas, methods, internal data) that gives your business an advantage, and their publicity rights, which protect against unauthorized commercial use of an individual’s name, image, or likeness.
[Read more: What Digital Assets Can You Copyright?]
Common issues small business owners face regarding intellectual property
Small business owners may face challenges protecting their IP, especially with limited time and resources. These issues typically fall into a few key categories.
Uncertainty around what to protect and when
Small business owners may not fully understand what qualifies as IP, if their brand or content is distinct enough to warrant registration, and when to register. However, failing to protect your IP before it goes public can lead to missed market opportunities, including competitors claiming or iterating on your original concepts.
“The last thing you want to happen is someone [learning] about your creation and [copying it] before you are protected,” explained Brian Aagaard, Founder of Cooperhawk Business Brokers. “This can be costly in both time and resources.”
Unclear ownership of assets and limited documentation
Small businesses may also lack the structured onboarding, documentation practices, and IP training found in larger companies. This knowledge barrier can lead to ambiguity about whether something is proprietary — and, in the case of collaborative works, who truly owns it.
“Most large companies have training courses designed to explain what's proprietary when you join,” noted Akhil Verghese, CEO and Founder of Krazimo Inc. “Small companies get straight to work, and employees are unclear on what is and isn't privileged.”
Resource and operational constraints
Even if a small business owner is well educated about IP protection, they may struggle with the practical demands of following through.
“The two biggest things most [small businesses] face in safeguarding their IP [are] having the time and financing to follow through to completion,” Aagaard said. “It can become overwhelming for many, as it can require a lot of time and money.”
Vulnerabilities in client and partner contracts
Finally, small businesses may feel pressured to accept contract terms from larger clients — even at the expense of their own IP.
“When you’re a small business, it can be difficult to insist on a particular contract, especially if the client is a large company,” explained Verghese. “But very often, [these] … service agreements don’t adequately protect the IP of the service providers they work with.”
For example, some contracts may grant the client broad rights over work produced or include clauses that limit the service provider’s ability to use or safeguard their own materials. Even a small business may recognize this but might lack the resources to negotiate better terms or fear losing the contract altogether.
The last thing you want to happen is someone [learning] about your creation and [copying it] before you are protected. This can be costly in both time and resources.Brian Aagaard, Founder of Cooperhawk Business Brokers
How to protect your IP
Safeguarding your IP requires both upfront preparation and consistent habits over time. Here’s how to set up your initial protections, along with practical ways to keep your IP safe day to day.
Identify your IP
Before you can protect your IP, you first need to understand what you actually own. Start by auditing the ideas, assets, and materials your business has created. (The U.S. Patent and Trademark Office [USPTO]’s free IP Identifier tool can guide you through the types of protections that may apply to your business.) Document each asset’s purpose, creators, and development timeline; this information will be crucial if you ever need to prove ownership.
Once you’ve catalogued your assets, assess the level of risk associated with each one. How likely is it that someone could copy, claim, or otherwise use this asset? And if this were to happen, what would the impact be? Prioritize protecting what is most business-critical, including anything that defines your brand identity or gives you a competitive advantage.
Secure your protection rights
Different types of IP require different steps to protect them. Here’s what you need to do for each type of IP:
- Copyrights: As soon as a creative work is fixed, it’s automatically protected by copyright law. However, registering with the U.S. Copyright Office makes it easier to enforce ownership if needed.
- Trademarks: Start with a trademark search to ensure your mark is available. If so, apply with the USPTO to secure federal protection and exclusive nationwide rights.
- Patents: First, prepare detailed documentation of how your invention works, and use the USPTO’s patent public search tool to see if something similar already exists. If not, you can apply for your patent via the USPTO Patent Center.
Maintain thorough records of your IP
Keeping clear, organized records of your IP protections makes it significantly easier to enforce your rights if necessary. Keep copies of all your trademark, copyright, and patent registrations, along with any certificates or correspondence.
Record when each asset is created or first used, who contributed, and how it has changed over time. Store any IP-related agreements, including nondisclosure agreements and work-for-hire or assignment contracts, in a secure system.
Find good legal counsel
If you’d rather not manage IP protections yourself, consider working with an attorney. An IP lawyer can:
- Assist with copyright, trademark, and patent applications.
- Draft and review contracts related to ownership.
- Advise on issues regarding licensing, confidentiality, and/or enforcement.
Though hiring an attorney is a significant expense for a small business, it can save time and reduce the risk of mistakes that are far costlier to fix later.
Educate your employees
Employees play a key role in protecting your IP, so they must understand what your business considers proprietary and how their work contributes to those assets. Incorporate expectations around IP into your onboarding process, and revisit them regularly. You should include clear guidance on:
- What should be treated as confidential (e.g., trade secrets, internal data, unpublished work).
- How to store and access sensitive materials.
- When and how to report unusual access or accidental disclosures.
Common law and international IP protection
As your business grows, it’s important to know which protections take effect immediately and which require formal filings to hold up across markets. In the United States, some IP rights are granted automatically under common law; for example, for trademarks, simply using a name or logo in commerce can create limited rights in your geographic area. While these protections may deter people from using your mark locally, they’re harder to enforce, easy to miss in a search, and don’t extend across state lines.
If your business operates, sells products, or licenses content outside the United States, keep in mind that IP rights do not automatically transfer internationally. While there is no worldwide trademark, you can streamline applications through international systems like WIPO’s Madrid Protocol (or, for patents, the Patent Cooperation Treaty). However, each country reviews applications independently, so consider where you currently do business — and where you plan to expand — to determine whether common law rights are sufficient or if formal international filings are necessary.
[Read more: Finding a Small Business Attorney for Your Startup]
How to handle IP infringement and suspected theft
If you suspect someone is using your IP without permission, follow these steps to resolve the issue and ensure your assets are protected.
Confirm your ownership and verify the issue
Start by confirming that you own the relevant IP and that the other party’s use overlaps with those rights. Check your registrations, contracts, and documentation, and make sure the material in question is actually protected. In copyright matters, consider whether it could plausibly fall under fair use, which allows limited, unlicensed, and “transformative” use of copyrighted materials. (Common examples include critique/commentary, educational use, and parody.)
Gather your evidence
Before you contact the other party, collect and save as much information as you can in a secure folder or drive. Useful evidence may include:
- Documentation of the infringement, including screenshots, URLs, saved copies of posts or listings, photos of products or packaging, and any advertising or promotional materials showing the unauthorized use.
- Proof of your original work, such as dated drafts, metadata, creation files, version histories, and published copies. Also include any copyright registrations, trademark certificates, patent filings, or prior-use records.
- Business or communication records that show when your work was created, used, or made available, as well as when the other party began using it.
Determine the impact and your desired outcome
Next, evaluate how the suspected infringement affects your business. Ask yourself: Is the use confusing customers, undermining your brand, or impacting sales? These answers will help you decide whether to pursue a quick correction (such as removal of a post), a licensing discussion, or a more formal response.
Start with informal outreach
Many issues can be resolved without going to court. In some cases, a direct email or phone call that explains your concerns and requests changes is enough. For more serious or ongoing misuse, a formal cease-and-desist letter — often drafted with help from an attorney — can outline your rights, describe the infringing activity, and set a clear deadline for them to stop.
Take legal action when necessary
If the other party refuses to cooperate, continues the behavior, or has caused significant harm, legal action may be the next step. Depending on the type of IP and the situation, this could involve filing a lawsuit, pursuing an injunction, or seeking monetary damages. An attorney can help you weigh the strength of your case, the potential costs, and the best path forward.
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