Startups and Trademarks

2 octobre 2019

  • Portugal
  • Propriété intellectuelle
  • Démarrage

Startups and Trademarks – Get it right from the Start

As a lawyer, I have been privileged to work closely with entrepreneurs of all backgrounds and ages (not just young people, a common stereotype on this field) and startups, providing legal advice on a wide range of areas.

Helping them build their businesses, I have identified a few recurrent mistakes, most of them arising mainly from the lack of experience on dealing with legal issues, and some others arising from the lack of understanding on the value added by legal advice, especially when we are referring to Intellectual Property (IP).

Both of them are understandable, we all know that startups (specially on an early stage of development) deal with the lack of financial resources and that the founders are pretty much focused on what they do best, which is to develop their own business model and structure, a new and innovative business.

Nevertheless it is important to stress that during this creation process a few important mistakes may happen, namely on IP rights, that can impact the future success of the business.

First, do not start from the end

When developing a figurative sign, a word trademark, an innovative technology that could be patentable or a software (source code), the first recommended step is to look into how to protect those creations, before showing it to third parties, namely investors or VC’s. This mistake is specially made on trademarks, as many times the entrepreneurs have already invested on the development of a logo and/or a trademark, they use it on their email signature, on their business presentations, but they have never registered the trademark as an IP right.

A non registered trademark is a common mistake and opens the door to others to copy it and to acquire (legally) rights over such distinctive sign. On the other hand, the lack of prior searches on preexisting IP rights may lead to trademark infringement, meaning that your amazing trademark is in fact infringing a preexisting trademark that you were not aware of.

Second, know what you are protecting

Basic mistake arises from those who did registered the trademark, but in a wrong or insufficient way: it is very common to see startups applying for a word trademark having a figurative element, when instead a trademark must be protected “as a whole” with their both signs (word and figurative element) in order to maximize the range of legal protection of your IP right.

Third, avoid the “classification nightmare”

The full comprehension and knowledge of the goods and services for which you apply for a trademark is decisive. It is strongly advisable for startup to have (at least) a medium term view of the business and request, on the trademark application, the full range of goods and services that they could sell or provide in the future and not only a short term view. Why? Because once the trademark application is granted it cannot be amended or added with additional goods and services. Only by requesting a new trademark application with all the costs involved in such operation.

The correct classification is crucial and decisive for a correct protection of your IP asset, especially on high technological startups where most of the time the high added value of the business arises from their IP.

On a brief, do not neglect IP, before is too late.

The author of this post is Josè Varanda

The concept of privacy by design has been around for a few decades. Although it has been referred to in studies since the 1970s and present in legislation since as far as the early 1990s, it was consolidated only in 2009 with the work of Ann Cavoukian, the Information & Privacy Commissioner of Ontario, Canada

 

This author defined the seven foundational principles of privacy by design: (i) to be proactive not reactive, preventative not remedial; (ii) privacy as the default setting; (iii) privacy embedded into design; (iv) full functionality – positive-sum, not zero-sum; (v) end-to-end security – full lifecycle protection; (vi) visibility and transparency – keep it open; and (vii) respect for user privacy – keep it user-centric.

 

After being adopted as a privacy standard by the International Data Protection and Privacy Commissioners in 2010, privacy by design was also included in the General Data Protection Regulation (GDPR – Regulation (EU) 2016/679 of the European Parliament and of the Council, of 27 April 2016). However, in the GDPR (article 25) it no longer remains as a mere principle. Instead, it has become a mandatory legal obligation and failure to comply can lead to severe administrative fines (article 83/4/a).

 

Regarding privacy by design, the GDPR establishes that the data controller shall implement the appropriate technical and organisational measures designed to implement data protection principles in an effective manner and to integrate the necessary safeguards into the processing. The appropriate technical and organisational measures are to be determined taking into account (i) the nature, scope, context and purpose of processing, (ii) the risks for rights and freedoms, (iii) the state of the art, and (iv) the cost of implementation.

 

Regarding privacy by default, the GDPR establishes that the controller shall implement the appropriate technical and organisational measures to ensure that, by default, (i) only the necessary data is processed, (ii) only to the necessary extent of processing, (iii) is only accessible by the necessary individuals, and (iv) is only stored by the necessary period of time.

 

Both privacy by design and privacy by default are established around the idea of the implementation of the appropriate technical and organisational measures to safeguard the personal data protection principles and rules. The GDPR provides some examples of these measures (such as pseudonymisation, encryption, anonymisation), but it is not a catalogue for these measures or other privacy enhancing technologies (PET) and the provided examples should not be seen as mandatory measures.

 

Clear guidance on privacy by design and by default is not to be found in the GDPR and it is a work in progress by all the community and parties involved. But the GDPR has the clear intention of impacting the core of the digital age system, reshaping its values regarding privacy.

 

The success of this ambition is uncertain, but some important challenges are already very clear, such as the role of the producers of products, services and applications, the integration of data protection principles in the design of User Experience (UX) and User Interface (UI) and also in the software development planning (agile and scrum, for instance).

 

In the meantime, examples of the real impact of privacy by design and by default are coming to light. In 2018, Valve changed the privacy settings of the users of the gaming platform Steam, making games owned private by default. As a direct consequence, the analytics activity provided by SteamSpy and other similar companies was severely damaged.

 

Privacy by design certainly is, for those closely involved in the design process of products, services and applications, one of the most interesting and challenging topics in personal data protection.

Individuals coming to Portugal and here becoming residents for the first time, can be entitled to some important tax benefits under the “non habitual resident rules”. These rules are an important contribution for making Portugal one of the most attractive destinations for retired individuals, but also for entrepreneurs.

Who can benefit?

A non habitual resident is an individual becoming resident for tax purposes in Portugal for the first time in the last five years period. To become resident for tax purposes, one should be in Portugal for more than 183 days in any 12 months period or for a shorter period but in such conditions that the intention of becoming resident is sufficiently clear. After becoming resident for tax purposes and register as such before the Tax Authorities, the individual must register as a non habitual resident to be able to benefit from this regime.

High Value Added Activities.

Some of the benefits under the non habitual resident rules are only applicable to income arising from high value added activities. These activities include architects, engineers, artists, auditors and tax consultants, medical professions, university teachers, top managers and other liberal professionals in areas such as informatics (software and hardware) development and consultancy, science investigation and design.

For how long?

The benefits arising from the non habitual resident status are valid for a ten year period and depend on the individual remaining as resident in Portugal for tax purposes. If, for any reason, the individual ceases to be resident, he can later benefit from the remaining period by becoming resident again.

What are the benefits?

Individuals becoming non habitual resident benefit from a more favorable tax treatment regarding both income from Portuguese source and income from foreign sources.

As to the income from Portuguese source arising from employment and self-employment, it is subject to a special tax of 20%. This benefit is only applicable to non habitual residents earning income from high value added activities.

As to the income from foreign sources arising from employment and pensions, it is exempted from taxes in Portugal, in most cases. This exemption also includes income arising from self-employment in high value added activities, and from intellectual and industrial property, capital and real estate gains.

GDPR – Privacy by design and by default

9 août 2019

  • Europe
  • Portugal
  • Confidentialité - Protection des Données

Startups and Trademarks – Get it right from the Start

As a lawyer, I have been privileged to work closely with entrepreneurs of all backgrounds and ages (not just young people, a common stereotype on this field) and startups, providing legal advice on a wide range of areas.

Helping them build their businesses, I have identified a few recurrent mistakes, most of them arising mainly from the lack of experience on dealing with legal issues, and some others arising from the lack of understanding on the value added by legal advice, especially when we are referring to Intellectual Property (IP).

Both of them are understandable, we all know that startups (specially on an early stage of development) deal with the lack of financial resources and that the founders are pretty much focused on what they do best, which is to develop their own business model and structure, a new and innovative business.

Nevertheless it is important to stress that during this creation process a few important mistakes may happen, namely on IP rights, that can impact the future success of the business.

First, do not start from the end

When developing a figurative sign, a word trademark, an innovative technology that could be patentable or a software (source code), the first recommended step is to look into how to protect those creations, before showing it to third parties, namely investors or VC’s. This mistake is specially made on trademarks, as many times the entrepreneurs have already invested on the development of a logo and/or a trademark, they use it on their email signature, on their business presentations, but they have never registered the trademark as an IP right.

A non registered trademark is a common mistake and opens the door to others to copy it and to acquire (legally) rights over such distinctive sign. On the other hand, the lack of prior searches on preexisting IP rights may lead to trademark infringement, meaning that your amazing trademark is in fact infringing a preexisting trademark that you were not aware of.

Second, know what you are protecting

Basic mistake arises from those who did registered the trademark, but in a wrong or insufficient way: it is very common to see startups applying for a word trademark having a figurative element, when instead a trademark must be protected “as a whole” with their both signs (word and figurative element) in order to maximize the range of legal protection of your IP right.

Third, avoid the “classification nightmare”

The full comprehension and knowledge of the goods and services for which you apply for a trademark is decisive. It is strongly advisable for startup to have (at least) a medium term view of the business and request, on the trademark application, the full range of goods and services that they could sell or provide in the future and not only a short term view. Why? Because once the trademark application is granted it cannot be amended or added with additional goods and services. Only by requesting a new trademark application with all the costs involved in such operation.

The correct classification is crucial and decisive for a correct protection of your IP asset, especially on high technological startups where most of the time the high added value of the business arises from their IP.

On a brief, do not neglect IP, before is too late.

The author of this post is Josè Varanda

The concept of privacy by design has been around for a few decades. Although it has been referred to in studies since the 1970s and present in legislation since as far as the early 1990s, it was consolidated only in 2009 with the work of Ann Cavoukian, the Information & Privacy Commissioner of Ontario, Canada

 

This author defined the seven foundational principles of privacy by design: (i) to be proactive not reactive, preventative not remedial; (ii) privacy as the default setting; (iii) privacy embedded into design; (iv) full functionality – positive-sum, not zero-sum; (v) end-to-end security – full lifecycle protection; (vi) visibility and transparency – keep it open; and (vii) respect for user privacy – keep it user-centric.

 

After being adopted as a privacy standard by the International Data Protection and Privacy Commissioners in 2010, privacy by design was also included in the General Data Protection Regulation (GDPR – Regulation (EU) 2016/679 of the European Parliament and of the Council, of 27 April 2016). However, in the GDPR (article 25) it no longer remains as a mere principle. Instead, it has become a mandatory legal obligation and failure to comply can lead to severe administrative fines (article 83/4/a).

 

Regarding privacy by design, the GDPR establishes that the data controller shall implement the appropriate technical and organisational measures designed to implement data protection principles in an effective manner and to integrate the necessary safeguards into the processing. The appropriate technical and organisational measures are to be determined taking into account (i) the nature, scope, context and purpose of processing, (ii) the risks for rights and freedoms, (iii) the state of the art, and (iv) the cost of implementation.

 

Regarding privacy by default, the GDPR establishes that the controller shall implement the appropriate technical and organisational measures to ensure that, by default, (i) only the necessary data is processed, (ii) only to the necessary extent of processing, (iii) is only accessible by the necessary individuals, and (iv) is only stored by the necessary period of time.

 

Both privacy by design and privacy by default are established around the idea of the implementation of the appropriate technical and organisational measures to safeguard the personal data protection principles and rules. The GDPR provides some examples of these measures (such as pseudonymisation, encryption, anonymisation), but it is not a catalogue for these measures or other privacy enhancing technologies (PET) and the provided examples should not be seen as mandatory measures.

 

Clear guidance on privacy by design and by default is not to be found in the GDPR and it is a work in progress by all the community and parties involved. But the GDPR has the clear intention of impacting the core of the digital age system, reshaping its values regarding privacy.

 

The success of this ambition is uncertain, but some important challenges are already very clear, such as the role of the producers of products, services and applications, the integration of data protection principles in the design of User Experience (UX) and User Interface (UI) and also in the software development planning (agile and scrum, for instance).

 

In the meantime, examples of the real impact of privacy by design and by default are coming to light. In 2018, Valve changed the privacy settings of the users of the gaming platform Steam, making games owned private by default. As a direct consequence, the analytics activity provided by SteamSpy and other similar companies was severely damaged.

 

Privacy by design certainly is, for those closely involved in the design process of products, services and applications, one of the most interesting and challenging topics in personal data protection.

Individuals coming to Portugal and here becoming residents for the first time, can be entitled to some important tax benefits under the “non habitual resident rules”. These rules are an important contribution for making Portugal one of the most attractive destinations for retired individuals, but also for entrepreneurs.

Who can benefit?

A non habitual resident is an individual becoming resident for tax purposes in Portugal for the first time in the last five years period. To become resident for tax purposes, one should be in Portugal for more than 183 days in any 12 months period or for a shorter period but in such conditions that the intention of becoming resident is sufficiently clear. After becoming resident for tax purposes and register as such before the Tax Authorities, the individual must register as a non habitual resident to be able to benefit from this regime.

High Value Added Activities.

Some of the benefits under the non habitual resident rules are only applicable to income arising from high value added activities. These activities include architects, engineers, artists, auditors and tax consultants, medical professions, university teachers, top managers and other liberal professionals in areas such as informatics (software and hardware) development and consultancy, science investigation and design.

For how long?

The benefits arising from the non habitual resident status are valid for a ten year period and depend on the individual remaining as resident in Portugal for tax purposes. If, for any reason, the individual ceases to be resident, he can later benefit from the remaining period by becoming resident again.

What are the benefits?

Individuals becoming non habitual resident benefit from a more favorable tax treatment regarding both income from Portuguese source and income from foreign sources.

As to the income from Portuguese source arising from employment and self-employment, it is subject to a special tax of 20%. This benefit is only applicable to non habitual residents earning income from high value added activities.

As to the income from foreign sources arising from employment and pensions, it is exempted from taxes in Portugal, in most cases. This exemption also includes income arising from self-employment in high value added activities, and from intellectual and industrial property, capital and real estate gains.

David Salgado Areias

Domaines d'intervention

  • Conformité
  • Entreprise
  • Taxe
Contact David