Create a product pre-launch legal checklist

1. Search publicly available databases to make sure your product isn’t infringing on third-party intellectual property rights.

Conduct a prior rights search to confirm that your product doesn’t infringe on another party’s patent. A patent is a right that enables inventors to prohibit others from making, selling, or using their inventions. Search the USPTO trademark database to see if your product name or tagline is owned by another party. Use original artwork, photography, and copy to avoid copyright infringement.

2. Protect your unique intellectual property by assessing the benefits of copyright protection and filing an application, if appropriate.

Analyze whether your product is protectable intellectual property. To qualify for a patent, the invention must be novel, non-obvious, and useful. Meanwhile, to qualify for a copyright, a product must be original and be created using a tangible medium of expression. In the United States, you get automatic trademark rights.  However, if you want to protect your intellectual property in other states or countries, you may want to file for formal trademark protection. Note that your trademark must be used in commerce to qualify for trademark protection. You can file an application before the product launch based on intent to use. However, proof of use will be required to meet registration requirements. Weigh the costs of pursuing intellectual property protection. For example, if your invention has limited, or no patentable elements, and you don’t anticipate using a patent to prevent third parties from appropriating the technology, it doesn’t make sense to file. Only file for patent, trademark, and copyright protection for protectable intellectual property. Once you have secured protection, craft a plan for enforcement. Send cease and desist letters to stop third parties from using your technology or product name for competing offerings.

3. Create a privacy policy for your website, app, and marketing communications to ensure compliance with privacy laws.

If your product, website, or app collects personally identifiable information (PII), it must comply with privacy laws. PII is any information that permits an individual’s identity to be directly or indirectly inferred. Examples of PII are email addresses, home addresses, location information, social security numbers, employment history, medical information, and date of birth. In the United States, the California Consumer Privacy Act is an important privacy law. If you collect E.U. user data, you must also comply with the General Data Protection Regulation. Any data collected from children must be compliant with the Children’s Online Privacy Protection Act.

4. Secure contracts with key partners to avoid future disputes or supply interruptions.

Document the agreed-upon deal terms with service providers, suppliers, agencies, brand partners, and influencers. Include key contract terms such as: Term of service. Product or service details. Price and payment terms. Exclusivity, if relevant. Order and delivery process. Warranties. Indemnification for third party claims. Limitation of liability. Confidential information. Intellectual property rights and restrictions. Compliance with privacy laws and regulations. Termination clauses.

5. Minimize product liability by performing safety testing, complying with industry requirements, and educating consumers on product use.

Consumer products must not pose an unreasonable risk. Perform extensive safety testing and ongoing safety audits. Prepare relevant user documentation for the product, including tutorials, troubleshooting guides, and reference manuals. Comply with industry-specific product testing, labeling and marketing requirements. Industries with specialized requirements include food & beverage, drug, medical devices, cosmetics, alcohol, tobacco, and electronics. Have a recall process in place to handle any possible recall scenario. Create website terms and conditions that govern product purchases and the consumer’s use of the website. Website terms and conditions should include: Restrictions on the use of the products. Intellectual property disclosures and restrictions. A DMCA-compliant process for submitting copyright complaints. A link to the privacy policy. Limitation of liability. Dispute resolution clause and governing law. Disclaimer of liability for content on linked sites. Warranty information for any products purchased through the website. If you are updating your terms of use, existing customers must agree to modifications to the updated terms. Work with your legal team to assess whether a new product or service will require updates to existing terms of use.

6. Review all marketing materials to ensure that advertising claims are substantiated, third-party permissions have been obtained, influencer relationships have been clarified, and products comply with state and federal laws.

Marketing materials cannot be unfair, deceptive, or fraudulent. If your advertising is directed at children, pay close attention to how children will perceive the ad. All marketing claims, whether express or implied, must be substantiated prior to use in marketing materials. The level of substantiation required depends on the type of product and type of claim. For example, health claims must be backed by reputable studies. Secure permission to use any third-party intellectual property and any individual’s name or likeness in marketing materials. Ensure your website is compliant with the Americans with Disabilities Act (ADA). Compliance requires WCAG 2.1 AA conformance and an accessibility statement. Require influencers to disclose their relationship with your company. The disclosure must be easy for consumers to read and understand.