SEMA Show and Your Business’ Intellectual Assets: Protecting Your New Product Launch at the SEMA Show (Part 2 of 4)

Welcome to this second of our four part series on protecting your business’ intellectual assets at the Specialty Equipment Market Association (SEMA) Show.

Part 1 dealt with what to do when you find counterfeits of your product at the SEMA Show. In part 2, we address how, when and why to protect new products that your company launches at the SEMA Show.

The attention gained by launching a new product at the SEMA Show is often a critical piece of a company’s marketing strategy for that product. New products, particularly those that appear in the SEMA Show New Products Showcase, gain a buzz around the Show that can attract buyers to your company.

Sadly, many companies fail to take steps to protect their new products before launching at the SEMA Show.

Should I apply for a patent on my new product? If so, when should I file my application? Can I protect my new product as a trade secret? What steps should I take to protect my new branding?

These are all questions that you should be asking yourself (and your attorney) as you prepare to launch a new product at the SEMA Show. Failing to put these protections in place before your SEMA Show launch can cause serious consequences. In some instances, failing to act before your SEMA Show launch can even be fatal to your ability to protect your intellectual assets in your new products.

The next three pages address concerns related to patents, trade secrets and copyrights as they relate to your SEMA Show launch.

Apply for Patents Before You Launch or Lose Your Opportunity to Do So

Patents give the patent owner a legally granted right to prevent others from making, using or selling an invention. However, patent law requires that you file a patent application before you can disclose your invention to the public, or offer to sell a product or process covered by your patent. In other words, once you have launched your new product at the SEMA Show without applying for a patent, you no longer have the right to obtain a patent for your new product. In the United States a one-year grace period might exist in some instances. In the rest of the world, simply displaying your product at the SEMA Show before filing a patent application eliminates your ability to get a patent.

You might be wondering how the simple act of displaying your new product at the SEMA Show can forever cut off your ability to obtain a patent covering that product. Simply put, when you display your new product at the SEMA Show, that product is no longer considered “new” for purposes of patentability. In order to obtain a patent, your invention must be new and non-obvious. A “new” invention is one that is not already known in the market, or in the patent and scientific literature. Once your company displays your new product at the SEMA Show, without first filing a patent application, that product is now known in the market and is no longer considered “new” for purposes of patentability.

If you plan to launch a new product at the SEMA Show, you should integrate patent protection into the product launch by consulting with a patent attorney well in advance of the SEMA Show. Patents are particularly valuable for new products which are easy to reverse engineer, and are therefore not amenable to trade secret protection (more on that later). Without a patent, you have no way to combat reverse engineering and copying of your new product. This places your new product at risk of lost sales, reduced profit margins, and decreased market share; not to mention wasted efforts in developing, producing and marketing your new product.

Find out more about trade secret protection on the next page.

It Isn’t a Trade Secret if You Tell Someone – Evaluate Trade Secret Opportunities Early

Trade secrets cover a wide variety of confidential business information. The key hallmark of a trade secret lies in the economic benefit (i.e. increased sales, increased profit margin) your company sees from keeping the information confidential. Trade secrets can cover many aspects of your new product launch, including:

• Manufacturing processes
• Secret formulas for producing chemical compounds
• Vendor lists for parts and raw materials
• Pricing structures
• Customer lists

The only caveat to what can be deemed a trade secret is that the information should not be easy to reverse engineer. The more susceptible your new product is to reverse engineering, the less amenable it is to trade secret protection. For instance, if your competitor can buy your product off the shelf, disassemble it, and find out your secret manufacturing process, then the process probably isn’t a trade secret. Here, applying for a patent (as described on the previous page) is probably a more appropriate protection avenue.

Before you launch a new product at the SEMA Show, you should consider what, if any, aspects of that product might constitute a trade secret. Once trade secrets are identified, your company should train its entire SEMA Show staff (under appropriate Non-Disclosure Agreements of course) on what you consider your trade secrets and how to protect them at the SEMA Show and beyond. Failing to do so runs the risk that one of your SEMA Show staff members might inadvertently disclose one of your trade secrets to a third party at the Show. Remember, it isn’t a secret if you tell someone.

Click through to read the final page, which addresses using trademarks to protect your brand.

Get Your Trademarks First or Risk Someone Else Beating You to the Punch

Trademarks protect anything that a company uses to identify and distinguish its products and services from those of its competitors. This can include:

• Brand names
• Product logos
• Three dimensional packaging shapes
• Product design elements such as color combinations and shapes (also known as trade dress)

Registering your trademarks with governmental authorities provides significant protections. Once your company has a trademark registration, you can use that registration to have counterfeit goods seized by customs and border protection, seek injunctions stopping a competitor/counterfeiter from selling products using the trademark, and sue for damages resulting from unauthorized sales.

In the United States, your company must prove that you actually use your trademark in commerce in order to obtain a trademark registration. Unfortunately, in many other countries including China, Germany and Japan, proof of use is not required to obtain a trademark registration. In these countries, the first person/company to apply for a trademark registration wins. Often, companies will find squatters in these countries who register the company’s trademark before they do. The squatters then use the trademark registration to extort money from the company in exchange for selling or licensing the trademark registration back to them. One can easily envision how a squatter might monitor SEMA Show product launches to identify new brand names, logos or other trademarks to file in their country.

Companies launching new products at the SEMA Show, or even re-branding old products under new brand names or logos, should integrate trademark registrations into their SEMA Show marketing plan. Failing to do so can leave important brand identifiers unprotected in the market place. Worse still, failing to integrate international trademark registrations into your company’s SEMA Show marketing plan risks squatters registering your trademark themselves and extorting money from your company when you begin selling products in their country.

Knowing when and how to protect your new products is important for a successful SEMA Show product launch, and can protect your market share in your new product for years to come. If you plan to launch a new product at the SEMA Show, please contact an attorney of your choosing immediately to discuss your options for protecting your new product(s).

Stay tuned for additional blogs on protecting your innovations and brand identifiers at the SEMA Show.

• Part 1 – Aug. 15 – What to Do When You Find Counterfeits of Your Product at the SEMA Show
• Part 2 – Aug. 23 – Protecting Your New Products at the SEMA Show
• Part 3 – Sep. 6 – Protecting Your Trademarks and Brand Identifiers at the SEMA Show
• Part 4 – Sep. 12 – Using Artwork and Photographs in Your SEMA Show Booth and Literature