EP#74: Your Brand Is Worth Stealing. Is It Protected? With Maria Sinatra (Venable) + Allison Luvera

So if there's a registration in place, that's hugely helpful. And for copyright infringement, you actually need a registration to have standing to sue in federal court. So if you don't have that protection, it puts you in a little bit of a defensive hole because if I'm an attorney and I receive a cease and desist letter from a company and they don't, and it's for copyright infringement and they don't have any copyright registration, it's kind of like you're calling their bluff. You know, what are you gonna do? You don't have one. I know you can't sue. Successfully.

Sue me. Welcome to Startups Decoded, the show that gets real about what it takes to build a successful startup. I'm Andy Walsh, 2x exited founder, strategist, and your host. Each week I talk with top founders, investors, and operators to unpack the plays that drive real traction, not just headlines. If you're building something bold, this is where you'll get the honest insights to scale with clarity and confidence. Let's keep growing together. Hit subscribe and share with your community. It mean the world to me. Most founders think brand protection is a problem for later. That's where Venable comes in. They're a law firm of 900+ professionals who work with startups and global brands on exactly this: trademarks, copyright, patents, brand protection. They're not just lawyers, they're partners who want your business to succeed. If you're building something worth protecting, it's worth talking to Venable early. Find them at venable.com. Venable. Able.com. Information in this podcast is not intended to provide legal advice or opinion. Such advice may be given only when it is related to specific fact situations and Venable has accepted an engagement as counsel to address.

Hello and welcome to Startups Decoded. My name is Andy Walsh. When you first start your business, you're thinking about everything all at once, but one of the things that most founders neglect is their IP, and this can come to life across your product, your brand, patterns, things that you're doing. So today I'm really lucky to have two people join me. I've got Maria from Venable. Welcome. And I've got Alison from Juliet Wine. And both of these people have different expertise and experience, and we have two today for multiple reasons. We'll bring that to life, but we'll get started. Maria, yourself, you're a lawyer and you're working on this every day. Just a little bit of context, your backstory and what some of the things you're working on.

Yeah, thank you for having me. First of all, I am a lawyer, as you said. I specialize in intellectual property law, primarily with trademarks, copyrights, trade secret issues. I have colleagues that specialize in patent matters. I do design patent work, but I try to stay away from the hard tech stuff. That's, that's not really my bag, but I know a lot of attorneys that specialize in that. I have sort of a unique background. I've been practicing for more than 10 years now, but before that, I thought that I was going to go the business route and actually be a startup founder and entrepreneur. So I took classes in finance, marketing, operations, everything like that. And I started taking like business law courses where it was kind of like from the experience of the business owner, like what not to do, how not to get sued, things like that. And I started liking those courses more than my finance and marketing courses. And then I decided that I wanted to go the legal route. But because of that, it sort of has made me sensitive to what clients, you know, are concerned about and what cost-benefit analysis they have to go through when deciding what to protect, what not to protect, and when.

The tension which we'll unpack today is that investment versus return. It's something that's really hard if you're bootstrapping early stage of a business. It can feel like such a significant outlay of capital and there's no immediate return on that, but your future self will 100% thank you. And that's the part that is front of mind or should be for every founder. And Alison, we'll throw to you. You've got Juliet Wine and product-wise, I'm fascinated. As an Australian, we have a long legacy of boxed wine.

Coon bags.

Yeah, coon bags. We can talk about that. Maybe not for this episode, but I'd love to hear your story as far as your background and how you landed with Juliet.

Yeah, so, so Juliet is a wine brand built for the modern woman, and the product we're most known for is our Eco Magnum. So it's a high-end boxed wine, but it is housed in our proprietary cylindrical version of a boxed wine that we have patented now, which is probably why I'm a guest on this show. And so my background is, you know, kind of had two parts of my career. I started out in fashion and media. So for about 7, 8 years, I worked in publishing with Vogue and InStyle, and then I shifted into wine and spirits. So I spent many years as the head of luxury marketing at Pernod Ricard. Pernod Ricard. So that's one of the largest wine and spirits companies in the world. I worked on iconic brands like Perrier-Jouët Champagne and the Glenlivet, and I really kind of caught that entrepreneurial bug there because I was fortunate enough to work with Tequila Avión, which at the time was a startup that had a minority investment from Pernod Ricard. And so I got to see really side by side the differences in the cultures of a startup. Alcohol brand versus these large organizations. And I just really fell in love with that sort of smaller startup culture and decided to launch something on my own.

So fascinating. I just did an episode with Rachel Tenbrink and she is a GP at Red Bike Capital, but her life started in Estée Lauder, L'Oréal world as well. So she was MNC for a long time and it's same thing, the patterns of observation.

Yeah.

And it's a chance to find your personal passion, which is so important from a startup perspective as well. So great to have the two different perspectives today. From a foundation perspective, I was talking to founders, most of them couldn't even tell you and separate a patent versus copyright versus trademark. Like IP feels like this abstract thing. I'd love a structure, like to set up the conversation. Let's start with maybe the first one you look at, which is a trademark from a brand perspective. Marie, I'll throw to you first. Simply, what does a trademark look like and how does it protect you?

Okay. I, I'd like it in the short answer is probably not really helpful. It could be anything as long as it's a source identifier. So the primary purpose of a trademark is to identify source. It could be a name, it could be a logo, it could be a color, it could be a product design shape. It could be a sound. So I'm sure there's, you know, companies out there that you hear a sound and you're like, that immediately. Is associated with them. As long as it is able to identify your business or you as the source of the goods and services, that's it. That's what a trademark is. So a lot of people, when they hear a trademark, they think, oh, my logo. They're not wrong, but it's way more expansive than just a logo or just a word.

And I did it with my first company, 2012. We did a global trademark for our name and we had to execute a cease and desist. Because someone literally copied what we were doing and it, whether it paid for itself, hard to quantify, but it happens and it's so easy to be flippant about those decisions that you're making. And, and Alison, at the start, like going into your version of that, like one, you talked about having a patent, but as far as trademarking, what was your first step in that? I would assume coming from Pernod Ricard that it was something that you dealt with every day and everyone was hyper aware of protecting IP.

I mean, yes and no, because when you're working with these global household name brands, it's a little bit harder to copy them, right? I mean, you have counterfeit, counterfeit issues, but like, it's not like in the startup world where if someone sees you having a little bit of traction, they may just try to copy you and surpass you. That's not happening with the Glenlivet, right? So we, we thought about it in the sense of, you know, we wanted to get our ducks in a row early. So we did from kind of the inception of the brand, get all our trademarks on our brand names, on our taglines we wanted to use. We also started our patent application process. So we did that all very early on. And our thinking around that was, I mean, maybe sort of a plain speak version of what you were saying, that if we were going to have anything associated with us, like if a customer was going to hear a name like Juliette or see a cylindrical boxed wine on a shelf and immediately think of us, that's brand equity and we wanted to protect that. So we, you know, we went the route of just kind of laying that foundation early, even I think before we launched.

I love the shape part of it. And I want to touch on a little bit, if you think about Coke, they've obviously done the same thing. Like they use the silhouette even without the brand sometimes. And with the color palette, it's uniquely distinguishable for, I would assume most people around the world, they would know that shape. And for what you are doing, I'm a, a whiskey person. And, and you know, like the, the circle tube you're talking about, for me, like you see it on a shelf and it makes it feel like a more premium whiskey cuz it comes in, in the tube as well. And for me that's just my own personal perception, but it means a lot. And your relationship with shape, color, all these types of things sets up a predisposition that either you're aware of or most likely you're not. So seeing it on the shelf, that separation's really important.

And that was really front and center in our thinking when we decided on changing the shape. Away from the typical rectangular box wine and towards the cylindrical version because we wanted someone to be able to see it on shelf and within a millisecond know it's different. And that was, that was honestly why, why we did it. But funny enough, you talk about the gift packs with high-end spirits. That was kind of where the original inspiration kind of came from because I had been exposed to that type of packaging format at Pernod Ricard. And so I knew, okay, it's possible to do this sort of corrugate rigid box. We obviously had to make a lot of modifications to it to accommodate a boxed wine, but that was kind of the original sort of aha moment, is like, oh, maybe we could kind of take this chic elevated gift pack that has a whiskey in it and like transform that into a boxed wine.

Absolutely. And to double-click a little bit on the actual pattern itself, it's a great way to explore that. And funny enough, you talked about audio branding before, Maria. That was my business that I had here. So we were doing strategy, composition, production for big brands, like we did the Skype ringtones. And going through that process for us, like we knew a lot historically around composition and songwriting production and the legalities around that. But when it applies beyond that, as far as a trademark for a company, it's one more step again, right? In what you're doing. But I want to focus for the minute though on patents and I want to revisit that a little bit more. But from a patent perspective, If you're a founder and you're going into product and you're thinking about, it could be a consumer product, it could be a tech product, understanding what even a patent does and what you can actually put a patent against. How do you start just at simple terms? How do you start thinking about understanding what you should cover and what even is applicable? Because it's pretty unique process to go through.

Yeah. Uh, patents are, are what I like to call like more hard tech. So it's usually an invention as opposed to, you know, a trademark is more word, a, a logo. Copyright is, could be a song, could be an ad, could be a billboard, you know, unique art that, that your company uses. Patents have to be new, useful, non-obvious, you know, in short. So Discerning whether something's new, useful, or non-obvious could be a little bit difficult. You're probably gonna have to do some sort of patent search or work with counsel to figure out, A, if something you're creating may possibly infringe on someone else's work. You know, as a startup, you don't want to be in that situation where you're just launching, you have all these great ideas, you're putting them into action, and you get a cease and desist letter from someone else. That's definitely not what you want. So doing that type of search early on is probably useful, and it would identify any maybe problematic areas or things to avoid. And then it would allow you to see if, if your invention or your design, um, like your, your box, your box wine holder can be patented, patented and protected. Usually I would say work with an attorney early on that once you start advertising and selling something, an invention that's patentable, there's a limited time period where you could actually apply for patent protection. So it's kind of like if you don't seek it out and you're offering it out into the world, you're not going to be able to go that route once, you know, you, you pass the year or so that you're allowed to, that grace period.

Because it's quite a lengthy process to even create everything you need to be able to do, submit it, going through the approval process. It's like 12 months, sometimes up to 2 years, right? To go through that.

Yeah. And that's if everything sort of goes smooth and the, the patent office doesn't have any issues or objections, or sometimes you need to go back and forth with them. I don't know if you had—

I think it took us, well, we have several different utility and design patents, and I think it'd be great if you could unpack the differences because I had to learn this, right? But the, the main utility patent I think took about 18 months. And then, um, we have several others that are still pending, but it is a process like you get you get remarks and feedback from the examiner. You've gotta sort of respond to that. And so we had to go back and forth, I think, 3 times in that 18 months. And that's something that for anyone out there with a startup who thinks they have something patentable, like, please, please work with a great attorney because I know, you know, with trademarks, not everyone works with an attorney because you can do the search on your own and people view it as being more simple. But you, you, I'm, I don't think you can do a patent application without one. It's just way too complex.

And today we're fortunate Maria is from Venable and your expertise is this. So in that process, the thing I also love is that a lot of really clever journalists will just troll the US Patent Office and look for big tech companies who are actually putting things forward because it gives you a peek into their roadmap for product release as well. So a lot of that is visible. So Thinking about that, what are some of the things you need to be aware of when you submit, what becomes visible, and how you're protecting yourself while that process is in motion?

A lot of the filings with the Patent and Trademark Office are public, like you mentioned. Once a patent is filed, you know, that, that information largely becomes public. Same thing with a trademark. I will say that although you could file without a trademark attorney, I've worked with a lot of clients where they filed and think that they have protection for one thing, and it wasn't quite the protection that they needed because they weren't aware of specific classes or goods that they were going to sell in the future. So that is a danger. I know cost is a factor, so that's a, you know, you have to weigh that. But, you know, I, I will say there is a sort of, like you said, newsworthiness to some people filing patents or trademarks. We've certainly dealt with it where Sometimes different LLCs have to be created to sort of mask who's actually filing it in the first instance. That's not uncommon. I will say if it is a startup, you may not run into that newsworthiness issue, but you have to be comfortable with it being out there, certainly, because it's definitely going to be searchable to investors or people interested in your business.

And also, I've heard of this happening where if you file, let's say you file a trademark for a brand name, there's there's tech that actually can crawl the site and then, you know, people that go in and will buy like the domain name so that you have to buy it from them. So it definitely is something to think about. Like once you file, like it's out there and anybody, whether they want to copy you or take something else that might be useful to you, they can see that.

Yeah, I will say I've dealt with that issue as well. There is a method where we could try to reclaim the domain name if it's being used improperly by a third party. It's called a UDRP procedure. And we've been— good to know— very successful in doing that. That is a danger. It's not the end of the world though, I will say. It's not ideal, but it's way more cost efficient than filing a litigation over it. So that is an option if that does happen to anyone out there. But I would recommend maybe securing the domain before you file for a trademark application if that is a concern.

The process for me, it feels like it starts early as far as brand hierarchy, product names, and you need to think about that hierarchy. If you look at someone as elaborate as Apple and the way that they used I in front of their product names and got ownership, and they've had some really public cases where I think it was Hyundai actually had a car that was an I version and Apple took them to court and that was actually dismissed and Hyundai got to keep the name. And you see public examples like that where they've thought quite rigorously around how it rolls out. So if you're a founder and thinking about product, every flow-on effect of that one initial original decision rather is important from like brand IP and trademark and copyrights into then URLs, distribution, all the things that fall off the back of it. So it's quite a sequence.

I mean, the first, the, in my opinion, the first thing that you should do before you do any of that is to do a trademark clearance search. Because you could secure your domain, you can try to file an application, and there may be someone else out there that you're not aware of that is using either an identical name or a version, a few words or a letter off that may be possibly too similar or, or likely to cause confusion. That's what trademark attorneys look at. They look at whether something is likely to cause public confusion. So before clients even launch anything, I would recommend that they speak with counsel and vet, you know, different names. I know people, it's a creative process, right? So people like a name for 100 different reasons that they, they want to name their product or they want to name their company something. And it's a little heartbreaking to have to tell them, hey, like, that may not be the best name for you to choose, and here's 5 reasons why. And sometimes I have clients that say, you know, I want to go with this anyway, or I want to make a modification. I don't like being the bearer of bad news, but sometimes that's what, you know, I get paid to protect. You know, I'm supposed to look out for, for a client. So speak with an attorney or at least do a cursory trademark search is, is what I would always recommend. Well, for two reasons, because it tells you what's out there and you don't want to step on anyone else's toes that are already established, but it also lets you know if your trademark or a logo is able to be protected in the future. You know, if you want to grow your company and you envision expansion or you envision selling nationally, you do want to secure those rights federally. As, as you know, and as Alison knows.

The trademark was interesting and I had a crash course in the middle of doing it. Like, as your experience, I'd never done it before. And we were fortunate we had partners that were experts in what they were doing. This is a long time ago now, but even the rollout from a global perspective and the various territories in the sense of where they show up and patents and trademarks are different, right? So one territory can set a precedent, right, though, for other territories, but you still have to submit and do that across the board and knowing where to start. Again, it feels like a minefield. So having the right expertise around the table is important.

Yeah, I mean, we always speak with clients to see, you know, their ambitions. Like if, if they envision selling in Europe, you know, 5 years down the line, we would want to know that and would want to prepare for that because that sort of opens up a different avenue in terms of having to obtain protection or clearances in Europe or overseas or China, where have you, because it is a different framework. Just because you have a trademark registration in the United States, doesn't mean that you're good to go globally. So that's a whole different process.

And going back to something you said before, you have the actual process itself, but then you have company structure. For me, that's really important topic as well. And I was reading something just the other day and someone talked about their company structure in the sense of like the whole co, the operating co, and then they had an LLC and the IP was held within the LLC. And it was done in a very deliberate fashion for protection beyond legal terms in the sense of who owns what, where the value lies, if they want sell the company, but then retain maybe the patent as well as part of that. Can we explore that a little bit as far as company structure and, and ways that you can step into that?

Yeah, I mean, I've worked on a number of clients where the intellectual property is housed in a separate LLC or a separate vehicle. That is fairly common once companies get to an appreciable size. Sometimes if an individual you know, proprietor or an individual has a brand too, we would recommend it being put into an LLC. This way it's not connected with them individually. So that's very common. Typically it's a wholly owned subsidiary or something of that nature, or, you know, an affiliated company. So the, the actual ownership doesn't have to probably change a lot, just the vehicle. But yes, that is extremely common if, if companies get to a certain size or if that's something they want to explore from the beginning.

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And to be able to think about that again, the, and the focus of what I'm doing with Startups Decoded is to unpack the things that people don't even know that they need to ask. You can search for something, but if you don't know that you need to search for it, then you're never going to turn this up and putting a spotlight on the process, but also the way that you think about company structure and naming down to something as basic as a URL and a website and social channels and where your future state actually looks like.

I mean, I will say though, if you don't have the intellectual property in a separate entity or a standalone entity, that doesn't mean that you can't do that in the future. So you could. Have an assignment executed between wherever the intellectual property is currently housed into a separate LLC, if that's something that, you know, in the future a company wants to explore. So just because it's not set up that way in the first instance, that doesn't mean that that's foreclosed.

That's good to know. And for me, I've not done a patent, but the trademark part and keeping up to date is really important too, because there's always going to be a case that sets a precedent that can change that path as well. Alison, I'd love to throw to you. Like you've gone through the patent process and you said it was, say, 18 months, 2 years it took you?

Like 18 months or so.

Yeah.

Yeah. So through that, like obviously a lot of value, but you've already faced a situation where you have, and I read this on your LinkedIn around someone that was a massive global wine brand actually. Can we say copy, mimic, whatever the right words is, what you're actually doing.

Yeah. So to give a little bit of context for listeners, so we had a, one of the largest wine companies in the US launch a product that was extremely similar to ours from a positioning perspective, from a format perspective, pricing. I mean, it was targeting women. We're, we're women targeted as well. Even had a, you know, woman's name as the brand, right? Like, so it was, the best way I can describe it is it's as though their marketing team put into ChatGPT, like, make me a version of Juliette, and this is what it spit out. Like, it was that close. They did not copy our packaging format specifically in that it was in a cylinder. So they used off-the-shelf boxed wine packaging. But that was really the only difference. And it was just so fascinating because when they launched, I mean, I have never gotten that many text messages, emails, DMs, LinkedIn tags in a single day. It was kind of crazy because everyone was like, oh my gosh, they're ripping you off directly. But the reality is from a, from what is protectable, right? From our patent perspective, they weren't, right? Because it's a, it's a regular off-the-shelf BoxOne. But where I think they crossed a line is that they had marketing materials that were actually using our photography. And they superimposed their product into it and complete with, you know, my co-founder's hand was in some of the photos because she had been holding our packaging in our photos and they just sort of superimposed theirs in. So I, you know, I took to LinkedIn and just sort of wrote a long post about how unacceptable I think that was. But it was just a really fascinating experience. Like we expected some sort of copycats from the industry in the sense of we're category creators. This was really the first high-end boxed wine. So we knew other people would do that, but we never expected them to just take our photography and put their product into it. I thought that was, that was a touch too much for me.

And innovation, I'll call it, always comes from startups.

Yeah.

It's very rare for a big corporation to innovate. Like they're usually playing catch up and that's a pretty sweeping statement, but I I would think it was pretty fair and accurate as far as where it comes. So yeah, what you've experienced is that, right? You're looking at a way to repurpose something in a way that's more reflective of a consumer that like see it in a certain way and, and that has become successful for you. And then immediately you've got someone big who's seen that as a commercial opportunity but has no personal connection to it. It's literally a way to scale revenue.

Yeah, but it's, it's, it's fascinating to me because I feel like we're living in a really interesting time where it's never been easier to copy another brand, you know, with, with AI and social media. And it's never been easier, but it's never been harder to get away with it because I think consumers today, they feel very passionately and attached to consumer brands at times. And, you know, the outpouring of support we got from people that were outraged on our behalf was wild. And, you know, I can go on LinkedIn and all my social media channels as a founder, and with a couple clicks of a button, I can call them out. And so it's just really— I think we're at a weird time and like an interesting inflection point where, sure, they can copy us, but are people going to buy that? Because it's very clear that it's, it's just they're copying us outright. And there's this David and Goliath mentality around it where like, we're the, we're the startup company, we're the innovators who are doing this with like no budget, just creativity and like heart and soul and they're just coming in and ripping us off thinking that because they have the distribution channel, that'll work. And I think it used to work, which is the interesting thing, but I don't know if it's going to anymore.

You see it literally now where people are doing a complete ripoff and they're almost not apologetic about it in the sense of like a tech product is easier than ever. And interesting in the legal space, I just read something last week, um, Legora, you know, an app AI-focused for contract generation and more, doing a lot of work. And then someone who felt it wasn't doing it at the right level and needed it more, went and got into Claude and built their own version in 3 weeks and, and basically handed it out for free, I think maybe on GitHub for other people to get in and use. And that is a gray area in the sense of what they're doing. But if you're creating it yourself and that product from a tech perspective, like on that side, just quickly, it's not what we're focusing on today. Like how, how does that exist now in the world of AI and tech product and protecting yourself? As far as building something like you can get a moat in different ways, but from a legality and IP perspective?

Yeah, I mean, what Allison was talking about with the photograph, because we haven't really got into it that much here, is under the realm of copyright law, and that would be what software would be under as well. In some circumstances, coding has the ability to be protected by copyright for source code, things of that nature. So typically we would suggest exploring that avenue to try to protect coding, it is a little nerve-wracking because no one wants to put that code out there and it has to get submitted to the Copyright Office. So there are ways that, you know, we try to put only pieces, put only certain things, and that's a little harder for the public to access. You actually have to go down to DC to get that and have those files. Those aren't online. So that's one way for tech specifically where you may want to think about trying to obtain some sort of copyright protection if it's not maybe patentable. And, and those are things that we weigh and think about and, and talking to clients, especially in the tech space.

I want to explore that a bit deeper on the image part, relevant to what you were saying there around literally taking what you've done and dropping their own product. Like, one, I agree with you, it just feels like, like, yeah, sure, have your own version of the product, but like, that just feels a step too far. It's like bad taste and disrespectful, just as a human babe.

I hope she had like a nice manicure or something that day, at least.

Like, we always joke that one of her roles at the company is hand model because she's like got these wonderful photogenic hands. But the audacity of that was kind of wild.

So those layers, you set it up at the start of the episode from like brand taglines, colors, imagery, etc. Like, you can go pretty deep on that, but in the volume of content that startups are creating now, it comes and goes so quickly and more often than not, they're probably using some platform that's AI content generated and doing less studio shoots as well. So it feels like the time and effort to do copyright for some of those things wouldn't be worth it. So like, what's the hierarchy there as far as if you're thinking about what are the things that you categorically should protect and then what are the things that you should just accept that there are people who will take inspiration or license from you to do their own version?

So as an initial matter, I will say that obtaining a copyright registration is usually a lot quicker than getting a patent or getting a trademark registration. There's usually a lot less back and forth with the Copyright Office. And if you expedite that, you can get it in a month or so. You know, so it's a lot less of a hurdle, I would say, getting copyright protection.

Were you saying before that copyright, like, so the photography that they, they took from us could have been copyrighted.

If I'm, I'm gonna assume it's not wholly AI generated, then if someone actually took a photo, yeah, you may be able to obtain a copyright registration.

But how does then a consumer brand, or really any brand, I guess, grapple with that? Because the, like, the, the scale of content we put out, I mean, there's brands putting out hundreds of pieces of content a week, right?

Yeah.

So you can't copyright all of it. So like how, how does a brand sort of, you know, when they've cherry-picked one image and decided to use that, like what do you even do?

Yeah, there's different ways, especially for photography that you may wanna explore. There's, there's sometimes group registrations where you could submit a number of photos in one. Mm-hmm. If it's part of the same sort of series or the same, yeah. What I'll call, I guess, a campaign. I would say you may wanna prioritize things that are maybe core pieces on your website, or if you do any sort of placement with third parties, like if you have anything on a third-party website that's being paid for, or if you're, you know, I know not a lot of people do billboards, but we are close to Times Square, so I will say billboards still. Um, if you have something that is going physically out in the world, I would maybe prioritize that because A, more people may see it, run into it, and it's a little harder to change if it's physically up there. So I would say prioritize that. You may be able to get a group registration if it's photographs, so that could maybe cut down on cost somewhat if it's done all at once. That's something that you can speak to an attorney about trying to file. And I would say if it's a campaign maybe that is really novel and something that is unique. And I know, you know, as a creator myself, I like to paint in my spare time. You sort of get a feeling when you think something is going to take off or you think it's new and unique and you haven't seen it before. Those may be the content creations that you may want to explore. I know people can't get a registration for every reel out there, but if you do an actual commercial or if it's a longer form content, that may be worthwhile exploring.

Okay. So think about it for the bigger campaigns, the more kind of impactful pieces of creative, but not like every TikTok and Instagram that goes out.

It'd be quite laborious and expensive, I would assume, to doing that. But yeah, if, and I'm a brand strategist, so for me, having a very clear and distinct and unique narrative in the sense of like mission, vision, purpose, some of the lines that you use repeatedly, et cetera. Just having that structure and foundation up front is really important because you can, like, one, protect it, but two, you're actually getting just IP in the sense of repetition and relationship with your brand, which today in this world of copycats, like, does become a moat. Like, you stand for something. You reflected before around community and the feedback that you had of people being fiercely loyal to who you are and what you're doing, which is amazing. And for me, this year and into next year, community and that relationship for products is going to be one of the most important things. That you can have to defend who you are. Because if you're churning content out and you're trying to have the lowest common denominator to reach people and sell, like, you can be taken out in a heartbeat is my recommendation to anyone I talk to on the founder's side. So standing out now is different. So protecting that is really important.

And I think it comes, it goes back to the why as well. Like, why are you creating this brand? What does it stand for? You know, for us at Juliette, we have very specific answers to that that we talk about publicly all the time. Why did this other company launch this brand? It's not because they think it's something missing in the marketplace for women. It's because they saw us doing it successfully and thought it was an opportunity to make more money. And consumers care about that now. They want to know why a brand exists. So it's really important to think about those things, which is ironic, right? Because it's— you'd almost feel like with AI and how fast technology is advancing, some of these more esoteric things might matter less, but I think, you know, the why and the heart and soul behind a brand matters more than ever, and it can be a protection in its own way.

And I feel too that maybe it's me and the people I talk to, but I'm seeing a lot more of people are prepared to pay a little bit more if there's a connection to it, if they know that it comes from the right person rather than this huge capitalist world where it's a race to the bottom to basically get the lowest price, which means typically along the way you're exploiting somewhere like where it's produced. Like the price of that means internally things are changing as well. And having a startup and something that's more sustainable and ethical, people see through that now as well.

Yeah, I agree. I think one case study I'm like keeping an eye on is Seattle Foods, Seattle Brands, because there was a huge uproar when they sold because everyone just assumed like it wouldn't be as authentic. It wouldn't have the quality, like it was going to change for the worst. And I, I think it's a real, it would be fascinating to see how they continue to, to exist. But, uh, It's, I feel like it's a newer thing. Like just in the past 5 to 10 years, I've started to see this more and more where there's this aversion from the consumer perspective to the large, the large organizations and the brands that they own.

Yeah.

I just did a recording, an event to launch Eric Ries' new book, Incorruptible. And the focus of the book is literally around that.

And he, yeah.

And he gives case studies of Whole Foods versus Costco. And everyone thinks Whole Foods is this amazing business, but if you peel back the layers, like since acquisition, et cetera. It's changed. I'm not going to stomp on Whole Foods, but Costco is the opposite. They barely spend a cent on marketing. And because they're transparent on pricing and everything that you get and you expect, it does what it says on the box, literally. And people are fiercely loyal to that. And yeah, and that book is all around how do you create a sustainable business on the bottom line that is more than just money. It's actually employees, customers, everyone together, but not to focus on that. But I feel it's important for this episode in the sense of thinking about community and people and brand goes alongside IP and the IP part of it and defining who you are actually sets up that path in the future state for marketing. But to put a line in the sand, if let's look at it when something happens, if you're in a situation and you've experienced it now, you've gone through the time, money investment of being able to create copyright, trademarks, maybe submit a patent. If you see something happen or if you learn of it, like what, what is the first step that you need to do in that process? And is it a minefield? Do big corporates do a power play and basically just say, we've got more money than you? Like what happens in that instance?

Call your attorney. That is a good—

that's the first step we take every single time. We email.

Listen to Alison. That's a good recommendation. I would say it depends on what's happening, right? Do you have registrations? Is it something where we could obtain a registration relatively quickly, like a copyright, or can we pay for expedited, you know, handling to try to obtain a registration? It's always easier going into court or sending a cease and desist letter or trying to do an online takedown or something of that nature if there is a registration in place. That doesn't mean that you can't take action with regard to trademark infringement without a registration. The US is a first-to-use country, but it could affect the rights and remedies you have if you have a registration versus if you don't. If you have a registration, you can also work with Customs and Border Protection for a lot of our CPG companies out there. If you're physically shipping something from overseas, having the ability to maybe stop counterfeits or stop infringing products at the border is very helpful before it even gets to US consumers. Consumers, you know, I, I feel like we've all had this experience where a lot of brand recommendations can be word of mouth. Someone likes something and they wanna tell people about it. The opposite is true when something is not desirable or when they've had a bad experience, maybe they're quick to say that to other people too. You know, if you get food poisoning at a restaurant, you're gonna tell someone you maybe got food poisoning at a restaurant and maybe avoid that. Particular place. So if there's a registration in place, that's hugely helpful. And for copyright infringement, you actually need a registration to have standing to sue in federal court. So if you don't have that protection, it puts you in a little bit of a defensive hole because if I'm an attorney and I receive a cease and desist letter from a company and they don't— and it's for copyright infringement and they don't have any copyright registration. It's kind of like you're calling their bluff, you know, you know, what are you going to do? You don't have one. I know you can't successfully sue me. So I think that's first where, you know, everything is nuanced, right? You were talking about, well, they maybe weren't copying the packaging specifically, but they were sort of looking at different elements of your branding. That's where it's helpful to work with an attorney to see that gray area, you know, If they're using an exact photograph, it's easy to say, yeah, that's probably infringement. They're using my identical photograph. But what happens when they change it somehow? Is that still infringement? What happens if they modify the colors slightly or they modify the packaging slightly? There's a lot of dupe culture right now in terms of especially like CPG brands that are cosmetics-based. You know, how do I protect that is a big question.

Yeah, we've actually gotten— somebody came to us and expressed interest in either acquiring or licensing our packaging format and then made the comment to us that if we weren't interested in that, they would just find a way to design around it. So I'd love to hear kind of what you would think about something like that. It kind of touches on what you just said.

Yeah, I mean, unfortunately you're not going to be able to know if it's infringing until they put a product like that out there and you look at the packaging or you look at what they're actually doing. A lot of times when someone's trying to competitively advertise, they may make false claims, and that's a total, a a separate cause of action, false advertising, that you can also pursue if it's there. I've worked with a number of clients where, you know, they'll say it functions exactly like the original brand or guaranteed to work the same as, and sometimes empirically that's false and that's actionable. You can't just make any statement out there. So that's another avenue for protection that certainly could be explored if, if someone is making those types of statements.

From a money perspective, cut into the chase a little bit on that part. Obviously you've got your attorney that's working with you. If you're able to defend yourself and have the other person stop what they're doing, at that point, you're obviously incurred a bunch of costs to defend yourself. Are you able to recoup those costs and like suing the other party in that instance to get that money back so you're not out of pocket?

So, I will say if you have a registration that helps in terms of copyright and trademark, because there may be some sort of statutory damages at play. That is prescribed by either the Lanham Act or the Copyright Act, the two pieces of legislation that sort of govern those areas. If, you know, you can get— you would have to prove damages or if there's some sort of settlement or something like that. Obviously, if it's a settlement, anything could be on the table depending on how creative the parties are. But assuming you take everything to trial, you go the distance, there's damages that you'd have to provide evidence for in terms of loss of sales, loss of goodwill, you know, you can maybe get a disgorgement of the other company's profits if the circumstance is right. If you are a prevailing party, in certain instances, you may be able to also get your attorney's fees. So the Copyright Act and the Trademark Act are somewhat unique in U.S. law where fee shifting is available in the right circumstance.

It feels overwhelming and it's awful to think that there's people that prey on these types of, I call them opportunities, from smaller companies that are working hard to do what they're doing. But being prepared is the theme that we're talking about today. So simple registration at the start, easiest thing you can do and everyone should be doing, right?

Yeah, I have heard trademarks and copyrights described as insurance. You get them and you hope you may never need them, and unless you have a licensing situation where you, it may actually turn into a revenue generator for you, and that's like phenomenal and great. But some companies, especially startups, they want to obtain a registration and then maybe never think about it for the next 5 years. There's a small, I guess, relative startup cost in terms of getting a registration versus, you know, if you don't have one in the beginning, it may be a much larger outlay of costs down the line. So that's how some, some clients look at it, like almost like insurance in terms of getting their registrations. If they're not actively licensing, then that's a little bit of a different—

And somebody once explained it to me as you wouldn't build a house on land you don't own. Like, don't build a company and a brand on top of a foundation that You don't own, like, that's just, it's just very risky.

And it feels like you're being effective cost and time-wise at the start, but I've seen it happen to so many people as well. And they just literally lose their business sometimes overnight to someone else. And people are looking for those ideas. Information is so publicly available to be able to look for opportunity, innovate, come up with new ideas. It's all very turnkey, but equally, like, I'm part of transparently invested in a company called Avalify, and you can do a global patent search in a few minutes. Just by putting in a whole bunch of information about the company and what you're doing. It'll give you super high accuracy, like 80 to 95% on globally what exists currently and should you even start. So it's a simple, cost-effective way to be able to do it. So the combination of both of those, you need to be prepared. Like people are looking for shortcuts to make money ultimately is what I'm seeing. And it's, it's sad that we're at that point, but protecting yourself is important. So Maria Sinatra from Venable. This has been so, so interesting for me. I love this space and it's the first time we've touched it.

Thank you for having me. I mean, if, if anyone's unfamiliar with Venable, we're a national law firm. We have offices in California, DC, New York, Chicago, man, Florida now, all over. We do work not just in IP, I specialize in that, but pretty much anything you can think of, someone at my firm specializes in it. But thank you again for having, having me and thank you so much, Alison. Yeah.

And I will share details, of course, for Venable. If you are interested to talk more and Alison from Juliet Wine, we need to put on an event. I need to make sure now I get all of our people together and drink some of this wine. Yeah. It is, you know, we're sitting here in the morning. It's probably not quite wine o'clock yet. Maybe in Australia it would be, but, uh, we'll be civilized.

When you work in the wine industry, there's always a reason to have a breakfast wine.

Amazing. So Juliet Wine, uh, where do you get it?

So you, we have a store locator on our website. We're sold in major retailers like Whole Foods, Costco, Safeway, Harris Teeter. And then you can also order on our website as well.

Perfect. Well, that could be a little weekend, little taste test for us coming up, but this has been so interesting. Thank you both again for joining today.

Thanks for having me.

Thank you so much.

Thanks for listening to Startups Decoded. If today's conversation helped you think differently, share share it with a founder in your network, and don't forget to subscribe for real-world startup insights every week. We really value your support. If you're interested in partnering with us, email hello@startupsdecoded.com. I'm Andy Walsh. I'll see you next week.