Intellectual Property Tools That Every Business NEEDS | Legally Protect Your Brand

Hi, I'm Brittany Ratelle, attorney for online business owners, and here we make legal fun because your business is worth having it done. And today we're going to be talking about intellectual property and brand protection, because believe it or not, just about everyone, including you, probably has a brand and wants to know what are the things you need to be doing today, tomorrow, 5 or 10 years from now to make sure that you protected your brand. So that it can grow and be supported as big as your dreams. As a reminder, while I am a licensed attorney and I practice in Utah and Idaho, I'm not your attorney. This is not an official attorney-client relationship or legal advice. And if you have any questions, make sure you reach out to a qualified legal professional in your jurisdiction. Let's get into it. So today we're going to talk about brand protection and specifically about the tools that we use, or intellectual property tools, or IP for short. So if you ever hear the words or acronym IP, it stands for intellectual property, and it's a really important concept and principle to understand as a business owner, especially if you are in the business that you are selling, licensing, or renting intellectual property. This is especially important for my clients and customers or audience members like you who might be authors, teachers, bloggers, creators, YouTubers, podcasters, online course owners, digital product owners, or lots of other jobs that might involve intellectual property. It seems like everyone and their mom has a brand nowadays. Days, right? From a window washer to a dog walker to people who run Etsy shops to bloggers and creators and influencers to maybe what we think of more established brands and people who sell retail or consumer product goods. And there's a reason why branding has become so powerful as our ways of communication and the distribution and marketing has had a democratization and made it easier for people to get in touch with their audience and sell and move their goods and services. It's meant that it's become all the more important to understand and to be able to differentiate, well, why should you buy from me versus the person next to me? Why should you watch my video or watch my content versus other options that you have? And branding is a huge part of setting yourself apart in that distinction that comes into making sure people know you, like you, and trust you, can find you again, and can refer and recommend you to other people so that you get that social proof and that word of mouth. So. Probably don't have to convince you anymore. Brand protection is super important, and it's a really fundamental thing that all business owners need to understand, especially the basics. So our first tool we're going to talk about here is copyright. And copyright refers to original creative works. And here in the United States, as soon as you create something and it leaves your head, so this is where ideas happen, right? In our brain. And then as soon as they come out of our brain and we fix them in a tangible medium, That's lawyer speak for meaning it's in something. It's in a file format. It's drawn by hand or on an iPad. It's recorded over a microphone or on a video or written in a book by hand or on a keyboard. The technology isn't as important as the fact that it was created. Once it is created, it has automatic copyright protection by the creator. Automatic. You don't have to do anything. You don't have to put up the special C with the symbol. You don't have to mail something off to Congress. It's automatic created. And this is really great and incredible news. It's really a huge reason why the US has such a robust creative economy and is able to protect and extend creative freedom to so many different things and why it spurns on innovation because people can create works and then as soon as they do, it belongs to them. And now they have the option and the menu before them of what to do with those works and how to parcel out those rights. Or serve up those slices of their cake. I talk about this a lot when I teach in workshops and masterminds is you create a copyright cake or an intellectual property cake, and you bake the cake and you get to decide who gets to have those cake slices. And the nature of selling or renting out those slices is called licensing. And it's something I'm sure you've heard of, and we see it a lot in music and media, but it's something that can apply to copyright and to trademark. So just so you can know and have a good picture. So what exactly counts as a creative work, Brit? Or what are the things that you would maybe want to register the copyright or protect by copyright in your business? This counts as like the creative guts of something that you've created. So it could be anything from your website text to a book, ebook, online course, membership worksheet, handouts, journal. If there's things in the journal, original writing, original graphics, original surface pattern design, original audio, photo. Photo, video, all of those are protected by copyright law. And copyright is the scheme and the tool that we use to control it and to control who gets to use it and how do they get to use it and for how long. And those are all really good questions that we always want to have in writing to answer that. That's copyright. Now let's move on and talk about trademark. And trademark, a lot of people get mixed up with copyright, but after you watching this video, you're going to know the difference and be able to use it in your business and explain it to other people. So while copyright protects the creative guts of a work, of something you created, trademark protects branding elements and branding assets. So this means the name of a company, the logo of something, a product name, a product collection, a tagline, a slogan, and even the look and feel of packaging. Trademark can even protect smells or things that you hear in connection with knowing who is it that makes this thing in connection with branding. Just before you get super excited, 'cause people usually do when they start hearing packaging and external look of, oh, this is my secret to making sure people don't rip me off. Those kinds of external appearance trademarks are more challenging to get, and they require you to go on more of a branding journey for you to prove to the US Patent and Trade Office, which is a government agency in charge of monitoring and keeping track of trademarks, that you've been using those things long enough for those to be trademarked. For example, The red sole of a Christian Louboutin shoe, which a lot of people might know, is actually trademarked. And so you know that if you get a red sole and it's not bought off Canal Street, wink wink, nod nod, right? You know that they're the only brand that's able to use that because they've been able to show, look, we do such a good job of making sure all of our shoes have this distinct look and a red sole. And a red sole has nothing to do with the function of the shoe. It's totally for fun. And they've been able to show that. That's why they're able to use that packaging and to monitor and enforce and keep other people from putting red soles on their shoe and trying to make them look. Same thing with Tiffany blue. That iconic robin's egg blue color is a trademark color owned by Tiffany Co. So if you are starting a jewelry company, be more creative with your color scheme and your Pantone colors. Please don't use that color. Same with In-N-Out restaurants. The actual look and feel of the restaurants, the way that the stuff that the waitstaff uses and the employees to the red and yellow coloring, they have several trademarks that protect the look and feel of In-N-Out. Now, In-N-Out, what do they have? They've been in business for a long time. They have a good healthy budget, and they were able to show and prove and develop those trademarks and that intellectual property portfolio because they were able to show, look, we've done such a good job in making people show almost like Pavlov's dog. They see this and they know it's In-N-Out to make that immediate connection that no one else should be able to use that. It would be cheating and it would be dishonest and confusing to consumers for other people to have this distinctive look and feel of packaging. And that's really when it comes down to trademark, what you should always be thinking about. Trademark law is actually for the benefit of consumers, not brands. Now, do brands use trademarks strategically to protect and develop their ideas and their properties, and then to be able to license those and monetize those? Absolutely. And I filed almost close to 300 trademarks helping clients do exactly that. But the reason why we protect trademarks in the US the way that we do is because look, We say it's unfair for a consumer to reach up and grab for something and to get duped, to be defrauded. So there's certain things that if people can establish that this is what shows who made this thing, we should be able to let them be the only one who can use that. And that's normally, like I talked about, name, logo, look of packaging, even like the shape of a bottle. For example, Coca-Cola has a trademark on that. And that means that when you reach for that, you know that you're getting the real thing from this company and people aren't allowed to make copycats. And dupes of it. Trademarks could be super helpful and they're especially helpful now in our digital world of SEO, right? Because one of the most important things you want to have as part of a marketing goal is that if someone hears about your product, they can find you again. And if someone has a positive experience or someone else does, and they are going to Google you, they're going to go look you up, whether it's in social media or on YouTube or Google or somewhere else or on Pinterest, any of the major search engines, you want to make sure that your people and your customers who are interested can find you, the real you, and not something else. That's why trademarks are those all-important signals and identifiers and source indicators of goods and services. That's the power of trademark. It's super important, and it's something that I love helping clients and walk them through. And it's really important in the process that we do trademark searches, which is to make sure that we're not stepping on someone else's toes, and then that we are getting those trademarks secured for ourself and locking out that real estate so that we can build a good empire there. Certainly before you start investing a lot of time and money into branding, before you build a beautiful new shiny website, or you want to get into licensing deals or bigger projects where you're going to be using your trademark with other people and other players, make sure that you're looking into trademark protection first. Make sure you're working with a reputable and a competent attorney to help you through this process. There's a lot of online gimmicks that will try to sell you trademarks and claim that they can help you file. For a nominal fee, all those websites are doing and services are doing is taking down your information and just filling out a form on your behalf. You could do that. They're not going to tell you that trademark has no chance of being filed, that it's descriptive, that you're submitting bad proof. And because trademarks are taking about a year right now in terms of their turnaround time at the USPTO, you want to have confidence that you can move forward. You likely don't have a year to wait to see if this name is even something that you can or should be using. Or if you're like needing to be looking over your shoulder at every turn for that cease and desist to come down from someone else who's super mad that you're using their branding. So, hey, talked about copyright. We've talked about trademark and a little bit about licensing. That's the nature of taking your copyright and trademarks that you have, of auditing what have you created, what's the value in there, and then deciding how are you going to let other people use them and what are the rules? How are they allowed to use your marks, names, product names? All of the intellectual property and business goodwill, that brand that you've established, and the whole scheme of how that's gonna work and how royalties are gonna be split and how you're gonna make revenue is called licensing. It's governed by written licensing contracts. So, and I love helping people establish and set up those schemes and making sure all those pieces work together so that everyone's really happy and we have really good deals where everybody wins. Okay, let's talk about our third tool in our intellectual property tool chest, and those are contracts. And this might be not one that you normally think of as contracts an IP tool. It certainly maybe doesn't sound as sexy as copyright and trademarks and patents, but there are some rules, especially in copyright law, that say that if you transfer or assign, meaning we're moving around a copyright, it needs to be in writing. So this is certainly a good reminder to make sure that we have our agreements with other people are in writing and we're not just having conversations. Because remember, people can misremember conversations. Okay. But writing doesn't lie. Writing shows up for us 10 times out of 10, it's there. And we can show that we had clear consent and agreement on both sides on what was the deal going to look like. So our most common contracts that I'm talking about here would be things like non-disclosure agreements or NDAs, which help protect confidential information and trades, along with things called copyright assignments, or again, things like licensing agreements, which govern what is the property going to be? What does it look like? Who gets to use it for how long? How are we gonna split up money? What are the rules? What you can and can't do with the property all really needs to be spelled out and really important stuff to have in writing. And last but not least is patents. Patents are really important and they're certainly useful if you are innovating and creating new or novel, uh, physical products. However, I am not a patent lawyer, and I don't know if you knew this, but now you do. Patent lawyers actually have to pass an entirely separate bar called the Patent Bar., and they have to have a science undergrad, a science background. So they either have to have been industry experience in science or a technical field, or have majored in a science course of study in their undergrad in college. Neither of those applies to me, so I don't do patents, but I have some lovely colleagues that do. So if you need some patent recommendations or want for more information, make sure you reach out to me. Instagram's usually the best place to get ahold of me, and I can send you some people who could help you if you have patent questions. Just so you know, patents, they're great and awesome, but they're also time-consuming and expensive. There's something to look at and also maybe to budget and work towards in your goal as you get more budget, as you get more revenue, as you move along in your process. So, and then the last thing I want to talk about today is we're talking about intellectual property and protecting our brand is what you should be doing as a business owner. So we've talked about what we should do to protect our own stuff and make sure like people are not going to be riding on our coattails and taking advantage of our stuff. But what should you be doing to be a good steward and to be a good creator and make sure that you're not the one stealing or taking stuff that you're not supposed to. And this is super important as a person who's involved in part of the digital creative economy, right? Which almost all business owners are, right? Isn't that the joke in the Instagram reel? I'm a small business owner, so I guess that makes me a content creator. I'm hard-pressed to see any of my clients as small business owners who aren't creating some sort of content. Even if it's just for marketing purposes, you probably are involved in content creation at some point, and maybe That's your biggest thing is what you do as a business. And that's how you make money is all about content creation. Wherever you fall on that spectrum, let's make sure we understand. So what should we be doing as a business owner? Number 1, make sure that you are sourcing and tracking your process for creating content. Make sure you know where the stuff that you're creating came from. Okay. That means making sure you look at a wide view of influences and then you close them down and you create your work. This is especially important for my visual artists, my graphic designers, my illustrators. My surface pattern designers, people who might be looking at reference photographs. I get these questions a lot of how close is too close? And those are really fact-dependent, gray, it depends lawyer answers. And so the best guidance I can give you is to make sure that you are being careful about what you're viewing and taking in. And the best way to have good original work is to go from a wide variety of influences. Look to fashion, look to art, look to architecture, look to music. Look to nature, get outside your office, close down Pinterest, close down Google image search. Make sure that you're not getting siloed into just consuming content that looks like what you're going to create, because the odds are the more you silo and become an echo chamber in your content creation, the more likely your stuff is not going to be original. And you're getting closer to that ethical and possibly legal line and blurring those and stepping over those. Where you're creating and you're copying someone else. And we don't want to have that. We want to have you creating your best work, most original work. So make sure, watch your process, keep an eye on your process, edit as you need to. Number 2, we already talked about this, get stuff in writing. You need contracts. That means you need permissions. That means you need media releases from people if you're using their stuff. If they're going to be in photo or video and you're going to be able to see their face or hear their voice, means you need media releases because They have the rights to that. And part of that is publicity rights and getting into that area of law. And part of it's intellectual property. Biggest thing is just to remember stuff dealing with intellectual property and agreements and promises need to be in writing. They need to be in writing. Get it in writing, please and thank you. Okay. Number 3, this is a big one. Giving credit isn't enough to negate copyright infringement. Let me say that again. Giving credit does not cross out copyright infringement. What do I mean by this? I mean that if you. Are on social media and you see something awesome and you want to share it, you are fine if you use an in-app feature, like using the little airplane and sharing that to your Instagram story feed, for example. Okay. What's not okay is you see a great picture, original illustration. It's International Women's Day. You're like, awesome. I want to put this on my Instagram post. I want to repost this. I want to put this on my website. I want to put this on a bag or a t-shirt and for you to think, Oh, I'll just tag them. I'll give them credit. Like, I'm not going to try to steal it, say it's mine, but I'll just tag them in it. No, not okay. All right. Giving credit was okay in school when you were writing a paper. You're not in school anymore. You're running a business. You need to have a business CEO hat on. And that means if you didn't create it, you don't have the rights to it. And if you want to use it and you didn't create it, you need to get those rights in writing. Okay. An email or a DM is better than nothing. Contract is ideal and best practice. So that means if you want to use something and before you repost, before you screenshot, before you screen record, a little flag should go up in your head of, wait a second, do I have permission to use this? Especially make sure you're not embedding it on your website, embedding it into your social media, embedding it into a product, especially a digital product, an online course or a membership. You can always link out. You can link out all the live long day. No problems there, but embedding it and having it framed into on your website and thus probably on your server. There's a whole legal technology doctrine behind that. It could be very problematic for you. So just giving credit isn't enough. Okay. Get permission. Permission is enough. Permission is best. Number 4, fair use. Fair use is tricky and people think that, oh, I should have fair use to use This clip, this video, this music, this photograph, this other piece of work, that should be enough. Fair use is a defense. It's a defense against copyright infringement. It doesn't make it okay, which means that it's tricky and it's nuanced. And you are not sure if you might ever really have fair use. And anyone who tells you that it's a slam dunk fair use, you should be skeptical of because fair use is tricky. And you normally need to hire someone, an intellectual property attorney who works specifically in this area. And even then they will probably give you weightings. Blended risk spectrum of risk. They probably won't even be able to give you a fair answer because the case law is so all over the place and it's very hard to decide what's fair use and fair use not. I will tell you overall, if you are using it for business purposes, commercial purposes, it's highly, it's much more unlikely, highly unlikely that you get fair use. Okay. If you're in ed, in education, you get a lot more benefit of the doubt. But once you start making money from it, the rules change. Okay. And that's for your protection too, right? Remember you're playing part of this game, but the rules change and you need to be aware of that. And so just know fair use, I think of it's a little bit like, do you even know what a plethora is? Three Amigos, like fair use. Do you even know what it is? And if you're not sure about it, please err on the side of caution. Don't use it. Don't embed it. Don't put it in your product. Don't put it on your website. Don't put it on your blog post and your email. Don't. And this is especially important for my creators who might be coming from other fields where you got more fair use. I see this happen a lot for people who are teachers who now have side hustles. Or who are educators who are involved and now are teaching their own curriculum. So this is coaches, authors, thought leaders, teacher hustlers, whatever. Make sure that if you're creating your own curriculum, you need to have much higher standards of where did that content come from? Where do those graphics come from? Do you have a license to use those for commercial use? Who created them? Who drew them? Who put the logos together? Who wrote the material? All of those things need to be really clear. You need to be answering all of those questions before you start selling it. Number 5, be a good creator, be a good steward, be a good educator in this area. That means that you should probably start from a place of civility and giving the benefit of the doubt when you see stuff go wrong or you see someone using your stuff. Assume they're not trying to screw you. They just don't know. It's a benevolent ignorance. Okay. As hard as this is, because I know it can feel like a sucker punch, I know And I've had so many of these conversations and so many of these crisis management I've had to do with clients and creators, especially when they get copied and stuff gets taken care of. But remember, sometimes people just don't know and it's an opportunity for you to educate them. Send them here and say, hey, you need to be following Brittany Ratelle and watching and reading her stuff to make sure you understand intellectual property law and what can be protected and what can't be protected. Okay. Because there's a lot of stuff we got to let go of too and understand, look, we live in a digital world. Get over it, you're not that special, everything's a remix and all of that. But in terms of the reaction, because copying cat, it's probably not a matter of if, but when it's going to happen to you. Make sure to take a deep breath, think about what you want to happen, formulate a plan, go vent to someone else offline. Note what I said there, offline, before you go on and assume that someone is maliciously, recklessly, wantonly coming after you and your firstborn child and everything you hold dear. Okay. Just please, if karma is real, don't steal. Be a good steward, be a good creative and creator, especially if you are creating content, then respect other people's content, right? Especially respect people who create photos and don't steal their photos, okay? And respect people's music and don't take their music if you don't have a license to use that music, okay? Respect creativity and the art of that because it's what allows us to have this beautiful, vibrant world. That allows people to monetize and be supported financially from their work and the great things they're putting out there and the problems they're solving and the beautiful art that they're bringing to the world. So be a good part of that and be the change you wanna see in the world. Thanks so much for joining me here today. This video is all part of a foundational series that I have about getting your business legally legit and protected. If you haven't, check out the other videos. I talk about setting up your LLC versus sole proprietorship, how to draft and review contracts if you don't know how to do that and don't have a lawyer to help you out. Along with how to make sure that your business doesn't look like a hobby and it looks legit and that you're able to move forward with confidence. I'm Brittany Ratelle, an attorney for you, modern online business owner, and I'm so happy that you could join me here today. Make sure to like and subscribe. Make sure you watch other videos on the channel and connect with me on Instagram if you're interested. That's where I like to hang out. So if you wanna connect with me, tell me what you're liking and jiving with. I'd love to connect with you on there. Thanks so much.