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Protecting the Intellectual Property in Your Company

April 12, 2017 // R. Shawn McBride // No Comments »

R. Shawn McBride recently spoke with Angela Langlotz about protecting the intellectual property in your company. Here is the transcript:

https://www.facebook.com/rshawnmcbridepublic/videos/1459869260711642/

Shawn McBride: Hey everybody, I’m Shawn McBride with you, with my friend Angela Langlotz. We’re talking about intellectual property (IP) and protecting your company. I know a lot of people have asked questions about this over the years. It’s very important for a lot of today’s companies to protect the information that’s central to their business, and she does a lot of this stuff. I see it tangential to my legal practice, but it comes up a lot in the world. So, Angela, you want to introduce yourself and talk about some of the stuff you do for other people?

Angela Langlotz :Yes, sure! I’m Angela Langlotz. I’m an IP attorney, and I help business owners protect their very important brand, Shawn.

Shawn McBride: Yes. What kind of stuff do you see? I mean brands, obviously, and intellectual property goes beyond just a brand, there’s other stuff.

Angela Langlotz: Yes, it actually embodies all of those intangible assets — things like your brand, which is connected to your business goodwill. It could be your slogan, your logo, your business name, if that’s appropriate. It could also be the copyrighted material that you produce. If you’re sending out email letters or email newsletters, that’s copyrighted. Stealing that’s a big deal these days. I have clients whose stuff is getting ripped off right and left, which is just shocking to me, but that’s what people do. I guess it’s easier than being creative. And then also patents. Some people have patented inventions. I’m not a patent attorney; I actually work with a couple of those though, so I can serve as a resource for that. But most of my work involves just helping people select, defend, and develop their brands.

Shawn McBride: I think that’s a big part of the industry. You, business owners spend a lot of time putting your name out there, maybe the email like you talked about, especially with online marketing. If you’re doing one of those types of businesses you might spend a lot of time developing a piece of copy that works. If somebody steals it, you could lose your thunder with the marketplace.

Angela Langlotz: Well yes. And the other thing too is that if somebody steals your stuff and starts sending it out to their list, it affects your inbox delivery because basically the internet doesn’t know who’s copying whom, right? So, if you mail a piece to your list, and then Joe Copyright Thief emails it to his list, then it might all get sent to the spam box because it’s going out on various people’s lists.

Shawn McBride: [sneezes]

Angela Langlotz: Bless you.

Shawn McBride: Thank you. Live TV for you.

Angela Langlotz: One of the hazards of live TV. “Wait, can we do that again please?” Can we redo that? No, we’re live!

Shawn McBride: We’re live! It’s live! Yeah, so, it makes me wonder how TV announcers avoid doing that on TV, but they’re not …

Angela Langlotz: Oh, I know. I think there’s that seven-second delay. We don’t have a seven-second delay.

Shawn McBride: And they’re never on there for more than a second or two, right? Like, TV announcer–five seconds here, clip to something else …

Angela Langlotz: Right. You can just cut to something else.

Shawn McBride: Interestingly I heard a speaker not too long ago. He got hired to give a speech. He’s a long- time speaker, well known to National Speakers Association. He gets hired to give a speech, they come in there, he gives the speech. At the end of the speech the client says “You gave the same speech the guy gave last year.” And he went back and scratched his head, traced it back. The guy who had spoken to that same client the prior year had actually copied his speech several years ago.

Angela Langlotz: Oh my goodness.

Shawn McBride: And delivered it one year prior to the same audience.

Angela Langlotz: Oh my goodness. Can you imagine? I would be so mad.

Shawn McBride: He suffered great embarrassment at finding out that his speech had been copied, so he actually refunded the clients their money because he felt bad for them. And then he went after the guy who stole his speech. But that just tells you, I mean, somebody can come listen to a speech, apparently, record it, transcribe it, memorize it, and then go out and deliver the speech.

Angela Langlotz: Wow. That’s cheeky. Very cheeky.

Shawn McBride: Right. But that’s just one example of what can happen, right?  When we’re on the internet, we’re putting this stuff out there. We’re putting out content constantly. And it’s very easy for somebody to copy it.

Angela Langlotz: Oh yes. I see a lot of copying, especially with photos. Most people don’t realize that just because it’s on the internet and it doesn’t have a circle C on it doesn’t mean you can copy it. Right? I actually negotiated for a client of mine. One of his employees had copied a pretty famous photographer’s photo off the internet, didn’t have a copyright notice on it, which doesn’t matter, by the way. We can talk about that a little later if you like. But he got a demand letter for something like $7,500. And I was able to negotiate that down to much, much less with a retroactive license.

That’s only for that one usage. That’s it. He can’t use it any more. But that was a very expensive photo, and it wasn’t a photo that was actually being used for any marketing purposes. The employee had copied it off of the internet and used it for their company Christmas party invitation a couple years prior, right? Prior to him getting this notice in the mail. And it was on the internet, but it wasn’t even being used commercially as we would think about it, right? So this guy ended up paying with my fee like $3,000, which is a heck of a lot better than $7,500. But you know he ended up paying because the employee just copied stuff without knowing.

Shawn McBride: And that speaks to the reality of it, right? I mean there are people out there that are looking to violate the law. They’re searching for stuff.

Angela Langlotz: Oh, sure. There’s an application out there called TinEye, and you can actually use TinEye — and there are other resources as well, but TinEye is my favorite — to find photos. You can put in a photo and say “find any instances of this photo online” and it’ll just bring everything up, and there you are. Right?

Shawn McBride:  It’s that easy?

Angela Langlotz: It’s that easy. So if you’re thinking that you can copy somebody’s photographs — especially if that’s how they make their living. This guy was a professional photographer and people were ripping off his work. It made him mad, of course. I mean, of course it would make anybody mad, but it was really easy for him to go find this.

Shawn McBride: Talk about how people with slogans or memes or other things, how others  can just save memes and then share them through Facebook. That is probably a legal violation I see several times every day, if not more.

Angela Langlotz: Yes, and you know the thing is, there are exceptions to copyright law like fair use and teaching purposes and things like that. The line is so fuzzy though, and it’s so easy to copy and it’s so — how do I put this — it’s easy to copy because we have the computer. It’s hard to know who sometimes has the rights to stuff. Sometimes people are actually putting other people’s copyrighted work up on stock photo sites, and people are pulling them off stock photo sites thinking that it’s okay because it’s from a stock photo site, you know, with commercial reproduction rights. It says it’s fine, you know, all that.

And then you get a nastygram — I call them nastygrams — in the mail from the true owner asserting that it’s their copyrighted material and now you owe them money. And it’s sometimes hard to know who has the true rights to it. Getty Images for a while had actually taken images that were in the public domain. This is a pretty big scandal. They’re copyright bullies, Getty Images is. They had actually taken some woman’s photography that she had placed into the public domain, right? They took it, they uploaded it to Getty Images, and then went after people for using it. Turns out she had actually put it into, I think it was the Library of Congress or New York Public Library archives. Some big archives. So, of course people were using it, and here’s Getty Images, the big 300-pound gorilla, going after small business owners and sending them demand letters for outrageous sums of money for using copyrighted property that they didn’t own the copyright to. It can get real confusing.

And the sad thing about it is that it’s kind of like speeding, right? We don’t ask if you intended to speed. You went over the speed limit, and now you’re guilty. It’s kind of that way with copyright violation too. You copied, it wasn’t yours, you’re guilty. We don’t inquire as to your intent. We don’t inquire as to whether it was a mistake. We don’t ask about what you used it for, was it commercial or non-commercial? It doesn’t matter. You use it, you’re liable.

Shawn McBride: A lot of people aren’t very careful about this. And I think there’s a distinction too between sharing and linking to somebody’s site and copying it and posting it. And some people aren’t careful about the two of those when they’re posting online.

Angela Langlotz: I mean, it’s just like I said. It’s so fuzzy. It’s so fuzzy. It’s really hard to know what you have the right to do, what you don’t have the right to do. In fact, I think I’ll create another course called “Copyright Law for Bloggers.” Because everyone shares stuff. That’s part of the Internet ethic. You share stuff, you repost people’s stuff, and you’re not doing it necessarily because you want to rip them off. If you give them attribution, is that good enough? Is it not good enough? What do you need to do? It’s hard to know where that very fuzzy line is between fair use or teaching purposes. And the law is not super clear. There are guidelines, but people get into copyright trouble all the time because it’s so fuzzy.

Shawn McBride: It’s so fuzzy. What can people safely do? Is there anything that’s in the safe category that they know they can do?

Angela Langlotz: “Safe category.” Here’s what you absolutely know you can do. You can go create your own content, your very own original content, and that is safe to use. Everything else — I hate to say it, but you’re taking a risk using somebody else’s stuff, even if it says Creative Commons license, anybody can use this. Because you don’t know if the person that uploaded that and says it has a Creative Commons license, you don’t know if they owned it. They could have ripped it off from somebody else. It’s just like this chain — you don’t know, it doesn’t have this chain of title. You don’t know whose it really is.

Shawn McBride: Right. You go out and shoot a picture and you write your own language on it and you share it to the internet, you’re probably pretty safe.

Angela Langlotz: You’re absolutely safe if you do that, unless you’re plagiarizing, okay? Unless you’re copying someone else’s stuff, right? A safe thing to do is attribution. You can ask permission. You can buy a license. Buying a license is good. Although, here’s the thing: buying a license isn’t really a defense if the person from whom you bought the license doesn’t have the rights to give away.

And what are you supposed to do? You cannot simply investigate everything, but the fact that you bought a license maybe makes your behavior less blameworthy if somebody tries to get you later for copyright violation. But it’s still copyright violation, and they can still sue you for it. I don’t really know what the answer is.

Shawn McBride: And I guess if you bought a license from somebody with some assets behind them, they could turn around and claim against that person.

Angela Langlotz: Oh sure. Let’s just have a big lawsuit fest. That’s always fun.

Shawn McBride: Turn your lawsuit into a lawsuit against them.

Angela L:anglotz: Right, I know. Interplead them or whatever, I guess. But who wants to do that? I just want to stay out of trouble.

Shawn McBride: I prefer avoiding the problem.

Angela Langlotz: Exactly.

Shawn McBride: Sharing a link. What’s the danger on that? Where would you assess that principle? Sending somebody else’s …

Angela Langlotz: A link?

Shawn McBride: Yes, saying, “Go check out this article by Joe Doe.”

Angela Langlotz: I think that’s pretty safe, because you’re not stealing their stuff. You’re actually sending them traffic. They should actually be paying you for that. People pay a lot of money to have traffic sent to their website. So if you’re sending people a link, if you’re linking to somebody’s stuff, that’s laudable behavior in Internet land. There was a big case in Europe about that, a couple of years ago, about link sharing, and whether or not that was okay. Because sometimes the people who are sharing your link are maybe not people that you want looking at your stuff. Right? Maybe it’s a political issue and the people that are sharing your link are opposed to your political views and they’re sending a bunch of haters to your site or something. But this is the internet, and we’re open here. If you don’t like that, then don’t publish on the internet, basically. Because anybody — like citing — anybody can cite your stuff, right?

Shawn McBride: And I guess an embedded issue here is: What if they have something stolen from their site? All you’re doing is telling people to go look at something. You’re not necessarily vouching for it if you just share a link.

Angela Langlotz: Right. Exactly. You’re saying “Hey, go look at that.” It’s basically the equivalent of standing on the street corner and saying “Hey, look at that.”

Shawn McBride: Right. Exactly. So that’s on the safer side of activity. Where I see a lot of people make a mistake is they say, “Oh, here’s this great video on the internet. Let me download it to my computer and I’ll show it to a group at my next speech.” Thoughts on that?

Angela Langlotz: Well there’s fair use, right? There’s use for teaching purposes, right? So we look at it, and  one of the inquiries we make is to decide whether or not it’s fair use is: “Are we taking money away from the creator?” If I’m in a conference and it’s a cake-baking conference. I don’t know, I’m just making stuff up here. It’s a cake-baking conference and there’s a cake baker and he’s a really good baker. I want to show the audience his stuff because it’s illustrating something that I want them to learn about, right? So if I show his video of him making this really great cake, is that copyright infringement if that’s his video?

Well, I guess on one hand you could say yes because we’re downloading his video and using it. On the other hand, we’re actually kind of promoting him and we’re using it for learning purposes, and it’s not taking any money away from him. In fact it might actually help his cake-baking business. Right? So it’s a fine line, and a slippery slope for sure.

Shawn McBride: Right. And a lot of people that might be viewing this video later are speakers. A lot of my audience, a lot of people I know are other professional speakers. And they’re typically often getting paid to speak. They’re making money, and then they’re potentially using somebody else’s IP in that process. I think that makes this analysis a little more convoluted because you’re making money off using somebody else’s intellectual property.

Angela Langlotz: Yes, but how are you using it? Are you using it for demonstration purposes, are you using it for teaching purposes, or are you using it — yes, you are kind of using it to line your own pockets, but . . .

Shawn McBride: I don’t do the IP law stuff nearly as much as you do. It’s just something tangential to my practice. But I’m always concerned with trying to make that teaching and educational use when you’re really delivering a paid product that’s partially entertainment. That’s part of why you bring a speaker in.

Angela Langlotz: Yes. I’m not really sure whether there’s this inquiry about whether the speaker’s getting paid. I don’t know, say for example I have a pattern. One of the things I like to do is I like to sew, and of course these pattern designs that you cut out — you know, you cut out the fabric and it tells you how to put it together — those are copyrighted, right? And if you take that and make a dress out of it and sell it, now you’ve violated the pattern maker’s copyright.

Shawn McBride: Wow. You’d just never think of that, you know?

Angela Langlotz: I know, right? You’re actually violating their copyright. So that would be an example of an infringement. That’s not fair use. Even though you’re making your own stuff, you’re making your own dress, that’s not fair use.

Shawn McBride: Right.

Angela Langlotz: But I think the example that you just gave where someone is giving a speech and using a portion of someone else’s creative work to make a point, I think that falls more under the teaching exception, the fair use exception, to the copyright laws.

Shawn McBride: Okay. Good, so, something for people to consider when they’re thinking about it, just something to be aware about. You have to do your own analysis on your particular usage of everything to figure out what makes sense in your business and what you’re afraid of.

What else do you think can come up a lot with business, what are the common issues …

Angela Langlotz: For trademarks? I’m sorry, go ahead.

Shawn McBride: And where might they be surprised by intellectual property or where they might not be covering themselves enough?

Angela Langlotz: Well for sure people are not registering their brands. I see that a lot. Or they’ll adopt a brand without actually checking the trademark record. That’s a big no-no. So what they’ll do is they’ll say “Oh, this is really cool” and they’ll adopt the brand and invest in it, and then they come to me a year later and say “We want to register this.” And I go in and do a search of the trademark registry and I find, hey guess what? You cannot use that brand because somebody else is using it already for similar goods. “Oh well it’s not exactly the same goods.” Well, it doesn’t matter if it’s not exactly the same goods. Because people’s trademark rights extend to beyond your goods and to any good that would be confusing if the brand were placed on those two goods. So it’s a consumer confusion test.

“Oh,” and they’ll say to me, “what if we just change the spelling a little bit?” No, I’m sorry, there’s this principle called the doctrine of equivalence. If the trademark registered is N-I-G-H-T, and your trademark is K-N-I-G-H-T, guess what? They still both sound the same. It’s going to be confusing to the consumer. You can’t use it.

So people will try to argue with me about this, and I’m just telling them,” Look, I am not trying to throw a monkey wrench into everything but you’re probably going to get sued if you keep using this brand.” And sometimes they do.

Shawn McBride: A couple years ago I had a client and one of the big companies of the world had a similar name. I mean it’s not that similar but I looked at it with them. Big Company shows up with Big Law Firm, says stop using our name, what’s a small company going to do with that?

Angela Langlotz: Well, usually a small company says “Oh, crap, I don’t have the money to fight Big Company, so I’ll just adopt another brand.”

Shawn McBride: Right. And that’s the thing you have to watch. That’s something you’ve got to be nimble about as a small company. You have to be realistic. Regardless of what the law is, you say you’re realistic enough about the business side of it, then look at this cost. Do you have the resources to fight this fight?

Angela Langlotz: And don’t get too cute with your trademarks, right? If you’re trying to make it kind of sound like Big Company’s trademark because you kind of want to ride Big Company’s coattails, oh that’s such a bad idea. Just don’t do it. That company’s going to — it’s not like they don’t notice, right?

I mean these companies are very aggressive about policing their trademark rights. And I have some people that hire me. I go in once, twice a month, and on their behalf I am searching for companies who may have filed a trademark registration that would step on my client’s toes. And you will get a letter from me if you’re one of those people. And my clients do not hire me to back down, okay? They are going to pursue Small Company. Or, you know, it doesn’t matter what size company, but clients that hire me to do this are very serious about protecting their IP rights. And they will go after infringers, and they will oppose their trademark registrations, right? So you can file that trademark application if you want to, but it’s never going to get through, very likely. Because there’s going to be opposition, and there’s going to be litigation before the trademark trial and appeal board. And you’re probably going to lose.

Shawn McBride: That’s right. And the other thing is most medium-size to larger companies, they actually have employees who search their name, and this is people’s full-time job to just do internet searches and look other places, see where they’ve been referenced, see if it’s positive or negative, respond to it. And if they see someone starting to step on a trademark, they’re going to toss that over to their legal team and say, “We think we’ve got a problem.”

Angela Langlotz: Oh absolutely. And they should. Most people don’t realize you really do have to defend your trademark. You will lose it if you don’t defend it. I don’t know if you know this, but “zipper” actually used to be a registered trademark. So did “escalator,” and, oh gosh, what’s the other one?

Shawn McBride: “Kleenex” kind of got lost, right?

Angela Langlotz: No. No. No. No. This is why they say “Kleenex brand facial tissues.”

Shawn McBride: Okay, got you.

Angela Langlotz: They’re Kleenex brand facial tissues. Band-Aid brand bandages. Right? I mean we may colloquially, causally call it a Band-Aid. But meanwhile, Band-Aid’s legal department is cringing, right? And putting “Band-Aid brand bandages” on everything. So I mean that’s another thing that I see a lot of too. I see a lot of trademark misuse.

Shawn McBride: Yes.

Angela Langlotz: So, trademarks are adjectives, not nouns. Right? So that’s why we have “Band-Aid brand bandages” and “Kleenex brand facial tissue.” So yeah, but if you call it a Kleenex, you can call it a Kleenex if you want to but you’re going to lose your trademark rights if it becomes generic.

Shawn McBride: Generic. And you have to defend against the generic usage.

Angela Langlotz: Yes. That’s why in the ’70s Xerox had this campaign, and it said “You cannot Xerox a Xerox on a Xerox machine.” And the brand was “Xerox brand dry reprographics” or something like that. But that’s why they did it. They did not want their brand to become generic for “dry reprographics.” You don’t want that. That’s why Kleenex is “Kleenex brand facial tissues.” You know?

Shawn McBride: So, we’ll come up in all their searches and they’ll all be reading this transcript when this gets transcribed and they’ll be looking to see how we’re using their trademark.

Angela Langlotz: Well, number one, I’m not using their trademark, because I’m not selling anything related to personal care products, right? So think about that, and fair use, right?

Shawn McBride: Yes, so we’re just mentioning it.

Angela Langlotz: Just mentioning it as an example of good trademark usage.

Shawn McBride: Exactly. What other tips do you have out there for business owners that are dealing with IP and other issues as we wrap up?

Angela Langlotz: I think the biggest thing is make sure you have the right to your brand, right? If someone is using the same brand for similar goods you don’t have the right to use it. Make sure that you check that before you adopt the brand. Because it’s very expensive to have to rebrand in midstream. You’ve created a lot of goodwill with your brand and you’re devoted maybe a lot of time to social media and setting up all your social media accounts and social media properties. And then — oh my gosh — we find out a year-and-a-half later, once we finally get around to calling the trademark attorney — because who needs to call one of those? — that you don’t have the right to use your brand. It’s crazy. And I see it so many times.

Shawn McBride: That’s planning for you, folks. You know everything I do touches around planning somehow, and this is somewhere you need to plan for. You really need a plan for your intellectual property. Don’t make it accidental. You need to be proactive about it. Angela, how do people reach out to you if they want to get a hold of you?

Angela Langlotz: Well, they can go to my website, trademarkdoctor.net, and on the contact page, there is a link for a consultation. I will talk to anybody for 15 minutes for free.

Shawn McBride: Awesome! I like that. It’s a great opportunity for them to get to know you a little better and see what you can do. And I’m R. Shawn McBride. I help private business owners build companies that stand the test of time. And this is one of the things you need to get right in order to stand the test of time. You have to have your legal house in order, your intellectual property rights in the correct space. Angela, thank you for joining me, I really enjoyed it.

Angela Langlotz: Thanks Shawn. It’s always a pleasure.

Shawn McBride: And we’ll see you again in the near future.

Angela Langlotz: Yes.

Shawn McBride: All right. Talk to you soon. Let us know if we can help you with anything. Just reach out to us.

Make sure you download our free checklist to assess your business:  www.mcbrideforbusiness.com/BlogGift

 

This posting is intended to be a tool to familiarize readers with some of the issues discussed herein.  This is not meant to be a comprehensive discussion and additional details should be discussed with your attorneys, accountants, consultants, bankers and other business planners who can provide advice for your circumstances. Each case is unique.  Past results do not guarantee future outcomes. This article should not be treated as legal advice to any person or entity. Freeimages.com/photographer Camila Schnaibel.

 

About the Author

R. Shawn McBride is the Chief Innovation Officer at McBride For Business, LLC. His signature keynote, The 3 Laws of Empowerment (www.rshawnmcbridelive.com/3laws), gives audiences an entertaining look at how they can prepare, plan and protect themselves. You can reach R. Shawn McBride at info@mcbrideforbusiness.com or (214) 418-0258.

 

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