Intellectual Property: How to Protect What You Build

The recurring scenario: a founder engages an independent developer to build the product, pays them, and signs no assignment clause. Two years later, during due diligence, it emerges that the rights in the code belong to the developer rather than the company. The problem is usually fixable, but it stops a deal and weakens a negotiating position.

1. Four types of protection

Trademarks. Protect the name, logo, and distinctive identity of your business. Registered with the competent intellectual property authority, within specific classes covering your activity — registration in one class does not protect you in another.

Copyright. Protects creative works, including software code, designs, and content. It arises on creation without formality, but registration strengthens proof in a dispute.

Trade secrets. Information with commercial value derived from its secrecy: algorithms, customer lists, pricing formulas. Protection depends entirely on your taking actual measures to preserve confidentiality — confidentiality agreements, access controls, and restricted permissions.

Patents. Protect technical inventions capable of industrial application. Relatively costly and slow, and they require no prior disclosure — announcing the invention before filing may forfeit its protectability. Better suited to deep technology than to conventional software products.

2. Priorities in the first year

In order of return relative to cost:

1. Assignment from everyone who contributed to building — the highest priority without contest.
2. Trademark registration in the classes core to your activity.
3. Confidentiality agreements with employees, contractors, and partners.
4. Domain and platform accounts registered in the company's name, not an individual's.
5. Documentation of trade secrets and control over who can access them.

3. Assignment: the detail that matters most

From employees. The employment contract must contain an express clause stating that what the employee produces within the scope of their work belongs to the company. Do not assume it implicitly.

From independent contractors. This is the greatest exposure: a contractual relationship does not automatically transfer ownership merely because payment was made. The clause is express and written, or the ownership isn't yours.

From founders. Anything built before incorporation requires written assignment to the company once it exists.

From agencies and service providers. Designs, visual identity, and content — check the scope of the licence granted: is it a full transfer of ownership or a limited licence to use?

4. Open-source software

Using open-source components is normal and useful, but each licence carries its own conditions. Some licences impose obligations on derivative works — which may mean disclosure obligations you hadn't anticipated.

The sound process: maintain a register of components used and their licences, and review it before any funding round. Serious investors ask for it.

5. Artificial intelligence and generated content

A recent question worth attention: ownership of outputs generated with AI tools, and the limits of their protectability, remain subject to ongoing regulatory development in many jurisdictions. Review the terms of the tools your product depends on, particularly regarding rights in outputs and the use of your data in training.

6. When infringement occurs

• Document first: screenshots, dates, and evidence of your priority.
• A written notice through counsel, which resolves most cases without escalation.
• A complaint to the competent authority or the hosting platform.
• Litigation as a last resort, given cost and duration.

Real protection begins with prior registration: without it, proof is considerably harder.

Common mistakes

• Paying a contractor with no assignment clause.
• Registering the domain or accounts in an individual's name rather than the company's.
• Publicly disclosing an invention before filing for protection.
• Registering a trademark in one class that doesn't cover the actual activity.
• Neglecting the open-source licence register.
• Relying on a confidentiality agreement alone without actual access controls.

Checklist

• Assignment clause in every employment and contractor agreement
• Written assignment of pre-incorporation work to the company
• Trademark registered in appropriate classes
• Domain and accounts in the company's name
• Signed confidentiality agreements
• A register of open-source components and licences
• Access controls over trade secrets
• Review of the terms of AI tools in use

FAQ

Should I register the trademark before launch?
Preferably, and at minimum before investing in visual identity, to avoid rebuilding if the name is already taken.

Do rights in code transfer to me simply because I paid?
No. Without an express written clause, rights may remain with the person who produced it.

Do I need a patent?
Usually not for conventional software products. Priority goes to trademarks, assignment, and trade secrets.