A company may think it owns a trademark, but if it isn’t using it, it may not own it. On September 18, 2025, Sarah Gatti, Head of Legal at Zappi, moderated a CLE panel for the American Bar Association Business Law Fall Meeting 2025 held in Toronto, Canada, entitled “Who Owns IT? IP Ownership Conundrums in Business Transactions.” Gatti was joined on the panel by Marco Ciarlariello, General Counsel at Wynd Labs; Scott Lashway, Partner at Mintz; and Steven Kennedy, Partner at Cassels Brock & Blackwell LLP.
What Are the Different Types of IP?
The panel began with a brief overview of the most common types of intellectual property (“IP”) at issue in a business transaction, including copyrights, trademarks, patents, and industrial designs. Trademarks are a type of IP that protects identifying marks of a company, including logos and words, but also nontraditional marks such as scents and packaging designs. The panel discussed common forms of IP ownership, including traditional filings and common law ownership, highlighting that actual use of the mark is required for ownership in either instance. They continued to explain that copyrights are legal rights that protects creators of original works such as books, music, and art. Patents were defined as the protection of products against reverse engineering. Industrial designs protect the aesthetic aspects of a product, such as its shape, configuration, pattern, color, or lines. Finally, the panel reminded the audience that items such as manuals, handbooks, and training materials could all fall under the IP of an entity, and practitioners should consider advising clients to protect them.
How Does One Transfer IP to a Company?
The panel continued their discussion by exploring how IP gets transferred to a company once it is created. They emphasized that without action, a transfer of IP is not automatic. Gatti posed the question of whether employee-generated work was automatically owned by a company. The short answer by the panel was that some form of transfer agreement is needed to make this transfer effective. This document could be either an IP transfer agreement or a confirmatory agreement. Both documents are used to confirm or clarify the transfer of ownership of IP and provide documentary evidence of the transfer. To assist in identifying which IP needs to be transferred to the company by employees, the panel discussed requiring that employees execute agreements identifying any IP that they own, or claim to own, outside of their employment.
AI and IP Ownership
Next, the panel addressed artificial intelligence (“AI”), how it creates content, and IP ownership of that content. As the conversation transitioned into a discussion of the complexities of AI and intellectual property ownership, Ciarlariello emphasized the importance of AI and privacy by urging the panel and practitioners to consider who owns the datasets that fuel a company’s AI model—”Whose data does the company have?” He noted that companies are in a race to determine “who can get access to the best data for their model.” In a theoretical exploration, which most discussions surrounding AI seemed to become, Lashway questioned whether companies that use licensing agreements would begin sending addendums to those agreements to protect the ownership of AI-created work or AI models created by the company, and to disclose the use of AI in the target licensing agreement. Gatti said that she foresees complexity in licensing agreements attempting to govern AI ownership when the nonowning entity doesn’t understand the target product. The panelists discussed Gatti’s concern, with Kennedy concluding, “[Companies] can act overly cautious, but the company that does not embrace this technology will [fall behind].”
What IP Issues Keep You Awake at Night?
Gatti asked the panel for closing remarks and posed the question, “What keeps you up at night [in relation to IP]?” Kennedy confided that attorneys and clients who ignore jurisdictional specifics in IP protection causes him the most concern. For example, different jurisdictions govern the use of virtual assistants differently, and ignoring the target locale’s laws could have negative impacts on common law ownership and formal agreements. Lashway was concerned by companies who are lagging behind in the protection of expensive assets they are building. He posed the question, “Have you taken the necessary measures to protect your lowercase ip and your uppercase IP?” This distinction between lowercase ip and uppercase IP was mentioned throughout the panel, with lowercase ip referring to common law and less “concrete” forms of IP protection, and uppercase IP referencing formal patent and trademark registrations.
Final Questions
When the opportunity for questions arose, I asked the panel for clarification on difficulties in determining IP ownership in employment scenarios as opposed to independent contractor relationships. The panel referred to their discussion on jurisdictional differences, such as employment agreements in Canada being more common than they are in the United States. The panel recommended advising clients that if IP protection is important to their model, they should incorporate a standard form agreement when onboarding across the board.