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good morning a Mario joiner vice president and small business sales administrator for nevada state bank i like to welcome you to today's webinar titled insights key elements of intellectual property the webinar is presented by nevada state bank through nevada small business com we are excited to have an expert on the subject of intellectual property with us today f christopher austin partnered with the Las Vegas firm of YT and Miller he has spent the last 13 years helping businesses and individuals defend and protect their patents trademarks copyrights and trade secrets welcome Chris nice to be here thank you if you have any questions for Chris please submit them on twitter using the hashtag in s.b webinar without further delay I'll turn it over to Chris very good well it's nice to be here I often get asked for from clients as they come into the firm and these are usually small businesses what can I do to make sure that I've got what I need to have protected so that I don't have somebody come around the next day after I you know come up with my new idea and start doing exactly the same thing there are a host of remedies that law firms can provide and that marketing people can also help out with one of the biggest things that we talked about often is what is it that you're really trying to do what is the new thing that you're bringing to the market is it a is it a new way of doing a particular service or is it a new product these are the kinds of things we first start with to get a sense of what they're doing and then we can talk about what we might do to protect it so I know they're you know the very first thing that comes up often is what I call my business and and oftentimes the desire particular of a small businessman is I would like two people to know who I am and what I'm doing so they want the name of the business to reflect exactly what the service is then the classic example is Sally comes into the office and says I'm opening a flower shop and it's going to be around the corner her down the street and I want everybody know that it's a flower shop and so she's going to put a big flower on the side and she's going to say you know my name is Sally's flower shop that would be kind of the classic statements you might want to do and then she'll say now can I protect that name and keep you from using that name in my response will be not very well because all of those things are descriptive of what you're doing and they're all the kinds of things that anybody can go in and call their flower shop and how do you prevent the other millionth Sally's out there who want to open a flower shop I'm calling their store also a Sally's flower shop so far better would be to come up with a term or a name that's not immediately describing what you're doing and gives a little bit of an essence of what it is but not a complete description so if you look at the great and these are what we call trademarks the great trade marks that are out in the world these trademarks rarely describe the business directly and I've taught frequently about this because it's kind of a classic example that's given to intellectual property students in law school and it's it's the mark appel if you wanted to sell the red fruit in Apple you would but you could call it an apple and everybody gets to do that and you don't get to own that word because technically what you're doing when you obtain a trademark is you're saying this is a word I get to own and I carve it away from the rest of the dictionary and anybody who wants to use this where it has to get my permission to use it that's one from the businessmen's perspective that's what he's trying to do from the perspective of the consumer they want the word they want to know what that word means they would I have some confidence in it so when somebody goes and buys a computer and that computer is an apple product they have a sense of where that's coming from there's no confusion to them they know the company they have a sense of this of the kind of quality the style the design all of that is built into that particular trade markets the goodwill that's incorporated in that mark and that marks a good mark because in that context Apple means a computer company and is very different from what we genetically look to as the word for a fruit right so I'll have this kind of same educational discussion with it with a new businessman coming in as they start to talk about first what do I call my business and how I how do i distinguish myself from the thousands of others out there that might be wanting to do is similar good or similar service to what I'm doing so I'll try to help them kind of get a sense of what it is it sets them apart and then look for some way to characterize that what are the next the next question that often comes up as well okay how what why do I do that if I you know Apple had nothing to do with computers so how do they you got to do a lot of marketing to kind of get that idea out there so in the range of trademarks you have things that we call or completely descriptive or generic you can't use those as a trademark everybody gets because everybody gets to use them okay when are you talking about a trademark you're talking about something that's going to exclude everybody from using it and on the other end you have things that are completely arbitrary that have no meaning in and of themselves and some of the best of the arbitrary marks are the marks that are pharmaceutical companies come up with where they just they just made it up right for this new product they've got where they've taken some of the chemical compounds there and they know what those words mean and they've played with them but I think sometimes the linguists they must hire to come up with a new drug name you know largest at the top of their game to come up with these words because they got to come up with a bunch of a right down the road until they get an idea and then then they do a lot of marketing to identify what that's going to be but so on one end you've got something very arbitrary has nothing at all to do with the service you know yahoo for example has since when did that have any meaning associated with a web search company or you know its service provider on that day but then you have marks that are in the middle and these are the ones that we call that are suggestive marks and they give a sense of what the business does but not directly they don't describe it exactly and so they lead you to think about it but they don't exactly tell you what the work is that's going to be done for example if I was if I wanted if I wanted to be oh you know in Vegas we have tribute bands right so we have a lot of little bands will come up and say I'm going to be a tribute band for queen or whatever it is going to be and I wanted to name my tribute band Penny Lane okay now immediately your mind will jump to who they are going to be a tribute band for wouldn't it right right I know I'm going to talk about the Beatles and probably about a particular time of the Beatles music because the Beatles also evolved over the course of their career this particular tribute band sounds like they're going to focus on that more country type style that the Beatles in the earlier years of their of their of their career and they've picked one no phrase that came out of one one song that they can't they they generated and they're naming their band after it and they suggest that they're going to be a Beals band focus maybe on that particular era without actually saying we're a beatles tribute band which would be almost completely non protectable right because it just describes exactly what they do right and then the the other level that we see a lot of marks in the in the country but these are the most expensive in my mind to try and protect and these remarks that we call Mark's it acquired secondary meaning in other words the mark originally was descriptive the ones that we see all around us all the time or we don't think about but there are hotel chains hilton hotel chain it's named after an individual named Hilton Marriott named after an individual named marriott we can look in our own community and see when named after Steve Wynn all of these marks are originally non protectable because they are a description of who owns they're nothing more than Sally's flower shop but now it's Sally's hotel right more Hilton's hotel or marriott hotel but over time people start to you know start to understand that that means a particular good a particular service and it acquires another meaning it doesn't just mean marriott hotel it means that particular business of the hotel service and people no longer associated necessarily with an individual they don't know who marriott is they don't know about his life was characteristics or his attitudes but they know there's a hotel named that and that's what they associate with so the idea being that eventually what we want for these trademarks is we want the consumer not to be deceived we want them to say look I know what I'm getting because I understand what that that that particular word defines the service or the good I want to have so anyway that's on that on the idea right of what I meet what I'm called some of the other questions that we get asked are well ok now I've got this I've got this new computer program that I want to use and I I've got a working on it we're just about ready to get together to drill out and we're going to use it for whatever particular part of the service we might have for example I've got a maybe it's a point of a point of sale back office immigration product that will help help capture all of what the business is doing keep track of all the data catch additional demographic information that will help the business explain expand and it's the kind of thing i could sell to a lot of retail businesses that would be very beneficial for them it's the better mousetrap in that particular computer technology world right how do I protect that how do I keep people from from breaking through my code ripping it off in and and selling it as theirs down the road and this gets us into the world of a couple of things one is if we still have the trademark as you want me to call it something and then the other item is we can protect it under copyright and and that's that's what a lot of people don't realize copyrights like trademarks are acquired when you when you first start you're using them right a trademark is acquired the minute you use it as a trademark a copyright is acquired and you own it the minute that you or the author put it in some form other than in your own brain so all right soon as you type it on to compute I pit into a program or you create that code you write it down you type it up whatever it is as soon as it's outside you're your own brain and again somebody else can look at it it's considered to now have copyright value and you own it to truly protect it then you can go and register it which will give you the ability to get damages if somebody infringes you but all often in Korea must you look make sure to keep records of what you're doing and identify when it was that you completed the code that you've got and then I would for a computer code for example I wouldn't recommend min most cases that they speak a copyright protection on registration from the United States copyright office that will help to distinguish that and then you've got it you've got to engage in what what is the next level of intellectual property that is using trade secrets protecting it like encrypting it by not letting people have access to it unless they've they've signed a nondisclosure agreement so you have contractual rights to go back after them and protect in that fashion so these are all aspects that are fairly simple that people can do copyright registrations are not that difficult to to obtain there's not a there's not a substantive review at the United States copyright office they're just looking that you've filled in the box if properly on the form and you have paid the fees there is something tricky about a little bit if if your if the author is you know say let's say the author is you but you're doing it for the bank right so at the end of the day the bank is going to be the one that owns that copyright but you're going to be the author and so on the registration will identify you as the author and then we'll identify the bank as the owner through what's called an assignment right and you probably whether you knew it or not you probably sign documents when you signed on and when you when your employment you know records you probably agreed that anything you create would be owned for the bank if you did it in the course of your course of your employment right so if you come up with some new better process and you would write it out for how the bank got to do something in most cases that's going to be owned by the bank or by the employer right okay no yeah it's what we call a work-for-hire type thing too so anyway so it's it's usually a good idea to talk to a lawyer when you're filling that out and getting it get comfortable with what you're doing but if it's the kind of thing you're doing all the time once you've won a good lawyer will teach you how to do that and so you'll pay you'll pay for it once and then after that if it's the same thing that you're repeating Lee copywriting i'm updating this program i'm updating my website then you should be able to continue to submit new copyright applications periodically as you've made those updates or significant improvements without without maybe having a lawyer review it without having to have the same expense involved so these are things that work on those levels for many people the next level of protection that we talked about and intellectual property is patents and this is the one that is the kind of the sexy one that everybody focuses on right I've got a patent so I'm good unprotected and the the classic ideas I've got a I've come up with a widget that I think is a great solution to a little problem that nobody had ever thought about before or that it may be very very simple for example just the sleeve on the copy coffee cup right to keep my hand from burning when I grab that cup well somebody had to come up with that as an idea and protect it and it's it's in order to protect it as a patent I got to say okay this was something that nobody's ever done before so it's got to be new right and it had to be fairly not obvious well and typically if it's new and nobody's ever done it before you can pass that test that it's not immediately obvious right and and has a utility has a value that's built into it so they take that coffee so that little cardboard sleeve and may they write it up in a pat to make and go and seek to get a patent protection for it there a couple ways to do that but the one that we can almost always talk about are the utility patents these are the patents based on the on the how the thing works in the in them in the market to help make whatever it is we're doing easier or better or faster more efficient that's what that's what that's used for so again in that case the functionality of the little coffee cup sleeve is that it its shields my hand and insulates the insulates me from the heat of the cup well somebody gets protection for that and they can go seek a patent and then once they've got that patent on there they can seek to enforce that to keep others and a lot of times just getting the patent will try to try to keep others from getting into your market a little bit more so utility versus the other night by patent is called a design patent and those are those are patents where it's not so much focus on the utility but based on the on the three-dimensional design that I've added to it right and you can and there's a there's a pitch competition between a design patent and copyrights but a design patent also has its it's kind of the element of a product that we do for example if you take a look at typepad there it's got a particular shape it's got a kind of a bezel around the outside edge of it in fact there is not not too long ago Apple 1a a large lawsuit based on the design element the design patent they had for the exterior bezel shape of the original iphone that came out if y u remember kind of had that rounded shape at the with a little silver bezel that went around the outside of it okay now there's none there's no functionality that there is a there's an infinite universe of ideas they could have used for that bezel shape it didn't have to be that exact radius and the curve it could have been a different material it could have been squared instead of rounded all kinds of things that they could have chosen but they chose that design and they went to a patent off a patent firm and they had that bezel design I just the exterior shape protected they didn't protect the entire shape of the phone so if you remember that original iphone had kind of a curved back end right they just protected just that bezel shape and and recently succeeded in a in a patent lawsuit in which they brought against samsung for infringing just that bezel design the rest of the samsung phone was very different but that if that front bezel design is it was a copy of our design and so they went on right after them to protect protect that unique design because they felt that was characteristic of what they were trying to sell at the time as their family of iphone type products it was part of that design so that's a design pad it's it's the thing that you put on to something that's functional are useful that in and of itself doesn't provide the functionality and is in some ways ornamental right that is a design that is added to it and you can protect that we do it all the time I mean we have a water bottle here with with ridges on it well there's no there's no requirement for that in the functionality it's a design right right that I can then seek if I want to somehow identify this water bottle is my particular brand or my bottle I'll look for a way to do to protect that design the shape of the bottle the coca-cola bottle is a classic right if you could recognize that bottle immediately functions in many ways under very set on several different trademark levels it functions as a trademark in and of itself just that design identifies the company immediately so it is a trademark as a design mark it functions in its three-dimensional form as a patentable design for for it a design patent right even the color of the glass that the original kind of green tinted glass has a as can be part of them if they created new glass and added particular polymers to the glass they make it shatter resistant less likely to chip or to cause problems with it something along those lines well they might have a utility patent based on the new invention of the glass that they put in it so there's host of ways to do that can be protected as a copyright as well as a three-dimensional if it would you know kind of if it was if they'd say they did it had an artist come and do one and it was done for a display and it's a one-off there's not many of them in that case it would be a copy rideable piece of art like a sculpture that could be protected as well and that's the difference between a copyright the copyrights a three-dimensional object which could protected and copyright that's what your art all of your art is protected that way your sculptures you were some of the some of the nicer you know the individual products that might come out if somebody does one large item of it they can protect that as a you know they make one of them an individual might make a make a teddy bear of whatever and everyone's an individual teddy bears not exactly the same as the previous one I may be able to protect that in copyright because it's a piece of art in that context when it becomes functional then I lose some of that then I'm going to be looking for design patent to protect it in a three-dimensional form so there's there's a range of ways to there's a here's a classic example the David Wright as a sculpture it as an individual one-off sculpture that's protected in copyright because as a sculpture now if i took that david and i replicated it and turn it into a mannequin to put clothes on now I no longer have that copy there's an argument that there's no longer a copyright protection it's now going to be a design to some degree i'm a look for protecting as a design patent effect if i can i might look at in that direction so thanks a lot sounds so there's there's a ways to do these things to protect the interest that you have there any other questions we've got that you know folks come up with that you Father no not yet at this time okay so we'll let you continue on and vision questions will generate well one that one that might come up is ok now I've got it what do I do if somebody decides to start in bridging me right this is an area that I spend a lot of time in because of all of the conventions do we have in town for instance in the next month here we've got the national hardware show that's coming into town now the national hardware show is an opportunity for businesses that are looking to sell products that will go into your bigger retail hardware stores like a Lowe's or Home Depot something along that line right and so you'll have you'll have brands from all anything you might find in those in one of those types of stores or an Ace Hardware all going to be at the National hardware shop I've gone to that show several almost every year for the last you know five six years and invariably there is always somebody there that is knocking off one of the products are just going in there and what happens is they'll come in say you'll have a you'll have stanley tools will come in or black inductor will have a display and then right around the corner you'll see that same wrench set or that same screwdriver set by an off-brand frequently a chinese company that's coming in and they're just literally copying it and putting it out there as well not too long ago i represented a briggs & stratton and we went to the hardware show their investigator they have somebody who's full time just to investigate what might be infringed of their products discovered that just they're very entry-level lawnmower it's a hundred-dollar lawnmower the two would you would buy an even target or walmart had been completely was right there they could see who'd had exactly the same lawnmower the only thing was missing was it didn't say briggs and stratton it said some other name but it was they had copied the entire thing now in the process doing that they had copied the patents that were associated with the engine and the structure and the and the way the motor works they had copied the the shroud right the cover that goes over the top of the lower right down to the color it was that bright red color as well and they said okay so what can we do to stop this and you know the the easiest thing to do is to if I can look at it and find a trademark that's the easiest one that I get front of a judge to try and stop and we looked at that shroud and discovered that lo and behold they had copied the embossing of the bar and diamond shape that is the briggs & stratton logo so it's impressed right inside the shroud now they put a different name in there utterly unrelated to briggs & stratton but briggs & stratton had wisely protected that exterior shape as part of its logo right just like Coke might expect the shape of that that hourglass shape of the bottle is protected probably in trademark for them so we were able to take that shape take a picture of the infringing of the infringing lawnmower go to a federal judge and say look they've infringed the trademark of briggs & stratton we could also say look but look at the entire shape of the shroud the shroud has some kind of flaring to it here and there there were elements of creativity that were built in the shroud it wasn't just a box covering the motor right they kind of tried to make it look like the front end of a car in some ways a little bit of that cowling and that kind of design element to it well that's so creative that's all intellectual property and we call that trade dress it's it's the it's a little bit too big to try and capture with just a single word or to just draw out all by itself but the whole of it tells you immediately that this is somebody this belongs to them trade dress is an interesting concept we'll talk more about that in a minute but but in this case they we were able to show that and the reason that's trade trade trade marks are great for a judge just as he can literally look here's the owners trademark here's the infringing one they're confusingly similar and that's the standard they got to be confusingly similar right well in most cases through identical so it wasn't too hard to look at this exterior shape here in this area is your shape there the same and then he can give me an order if that authorizes the marshals to go down to the trade show and seas and take away the infringing product interesting stuff says those are those are kind of fun tell us more about protecting trade secrets okay good trade secrets these are the these are really what every business has and they don't even sometimes realize they have them this is this is the stuff that is their contacts for example there are there particular relationship so they might have in the market or and it could be anything from my suppliers to where do I wear you know who are Mike who are my cut my primary customers that I work with the point of contact at if I'm if I'm a business-to-business and I've got particular I've got a really good pricing system that's going on for one of my son of my vendors and it's because of my real long-term relationship with one of their one of their senior managers and he's in my point of contact well I want to make sure I keep that relationship close to the vest these are the types of things that add value to what I'm able to do right it also might be the types of training I do for my my employees that provide them a little higher level of we provide a little higher level service or a better type of service or a different type of service then what might be found at a different company all of these things that as a whole give my company an edge that are not immediately known to the world these are the things that I want to protect say i am a baker and I've got a particular recipe for my cakes that just makes them absolutely moist delicious and I heard that you know I got it from my grandmother years and years ago and then we've refined it over the years and so it's a secret recipe that we use to that provides that characteristic juiciness I guess I forgot the word word for a cake but moistness right for that cake that's just mouth-watering but I want to protect that well I'm not going to protect it as a copyright because to protect it as a copyright if I've written it down and it's my recipe I've got to I've got to show that right when I when I submit that to the Copyright Office it's now on display we can see it so even though they may not they mean I opened a business and compete with me but all the little good bakers out there could just follow the recipe and so they're not going to buy my product necessarily and even if they do then they may want to infringe me and I got all this I don't have enough money to go out and fight all of these people are going to fringe me so and I'm better off just keeping that one secret and everybody who works with me they've got to keep it secret too and this is the role of what's called a nondisclosure agreement so I'm a new employee comes in to work with me and there they need to know that recipe in order to do the batches for me and help build it they're going to sign an agreement that says I will keep this this trade secret and I will keep it a secret forever trade secrets can be protected forever in perpetuity there's no limit on that else other things you can you can you're going to have an expiration but a trade secret can be maintained forever and we see that for example in the classic coke recipe right nobody technically knows what that recipe is or you know years ago you're even now in mrs. fields cookie recipe you know it's a secret recipe that's it those are the ones that are obvious that we think of but your pharmaceutical companies have hosts of these or they're going to try and keep certain things close to the vest as a trade secret as much as they can once they once they will then go through another process and they'll ultimately patent those once they do that it's now public domain right everybody can look at the patent and it will expire so they've got a finite number of years to maximize what they can they can make off that drugs and here comes into their then the generics come along or literally copying the patent the recipe as it work right doing it but if I don't have to do that then I've got and they have to do that for the regulatory regions in the industry but if I don't have to do that for my for my cookie recipe for my cupcake recipe or for you know whatever it is that I've got as my particular good service idea that I've come up with or a new new way of just heating or cooling a building it could be anything that you could come up with that I may want to protect in trade secret if I don't have a good way to protect it in any other way so how does that conversation I'm thinking of some clients that they fit the description in which you you just described in terms of counseling then between whether or not to make the step and make it public or whether to keep that private how do those conversations go yeah it depends on what you're looking for is it is that is the thing itself the thing i'm selling right so if it is something i'm selling and it can be reverse engineered right then I'm then I'm not going to be able to protect it very well as it as a trade secret because they can take it and undo and rewind it and figure it out so in that case i'm going to try probably and protected as a patent if i can in some fashion okay all right so I'm gonna look and see if I will qualify as a patent if it's something that can be undone right in front of me if it's if so that's that's probably the first answer write computer code for example you can come up with some great computer code with it but if I've got if in most cases when you sell that code you're not selling the code you're selling a license to use the code you own it right so when you buy a computer program you're actually not buying the program you're buying a license to use it and that's most likely protected in copyright yeah so if you're discussing a project or an idea with someone you know this is immediate yeah how can I be sure that they won't steal my my ideas yeah that's a tough one you gets there's no way to know for sure they won't steal your ideas the best you can do is try to protect those ideas from from being stolen or make it very difficult for them to go forward and try and infringe you as you look forward so the thing to do right out then run off the pig at bait right out the gate is to try and make sure I've got the protections I can in place they don't cost very much to do so I want to identify this as mice my stuff so make sure I've got a mark on there that says this is this is my businesses that owns this this is my product I've trademark to this name and then the next thing I'm going to do is look at what it is I'm doing so if it's something I can protect and copyright if it's something that's written something that's got an author associated with it then that's going to be copyright protected all I want to make sure they it's the if it's the thing I'm actually selling people are going to buy that or going to buy a license to use it I'll want to get that registered so I can I can have an official US copyright registration on that which will help kind of put people on notice even if I don't do that you can still indicate on that document the minute you create it because as we talked about earlier you own it the minute that it leaves your brain right so at that point I'll still put on their copyrighted and and a date indicating that it's copyrighted and who it's copyrighted to whoever that owns it the distinction for between something that's copyrighted under common law because I I created it and something that's registered is that Circle C so once i registered i get to use that Circle C all right and the same is true for trademarks once i've regist red something as a trademark that i can use that circle R as a registered trademark until I register it it's still my trademark i'm using it right I've named with a set of Sally's flower shop she came and talked to a you know a trademark attorney and she talked to a marketing person and she came up with a new name and she's gonna call she's going to call for her flower shop you know sunflowers on the sunflowers on the corner or something right so she's come up with she's come up with a name that's got a little more descriptive it's got got some some suggestiveness to right people get to sin so it's sunflowers on the corner and that brings to mind a bright spot maybe a garden spot around on the corner but in fact it's a flower shop so she's gonna she's going to want to put that mark out there and start using it well the minute she starts using that as her trademark she can put a TM a capital T M by that trademark even though it's not registered once she registers it then she can do that circle R to indicate that is now a registered trademark as well and these are all little things that help people know we're serious about protecting the you know the intellectual property that we have and what is that intellectual property it's it's my ideas it's my creativity it's the stuff that sets me apart and adds value in the in the community I'm Anna in the world I'm in and in the business world that I met it's what we would call the goodwill of the company that gets built into that right it's the reputation all of that get built into the trademark or into the into the the underlying good that I've got that is that I'm putting forth or the service that I'm doing so the follow what happens if two people have the same or nearly the same type of written work or an idea who is considered the owner of that intellectual property good good question this raises a good issue in what's game copyright because copyright the first person you own the copyright the minute that you put it in tangible form right as i talked about her leaves your brain somebody else theoretically oh it's it's very unusual could do the same thing at the same time right and there is a priority so whoever did it whoever came up with this and put it out and as theirs they would own it and so with the other person so the little challenges I've got to show that these two things that look really similar right so maybe I got two stories that have come out two books or whatever or two articles that have come out and they look really similar but if both can say look I independently created this then they both can survive independently it's only if it looks like one was copied that's the copyright protection I'm protecting it from being copied you don't get to copy my idea or copy my words as they're written down so you've got to in that context you've got to show if you're going to prove that somebody had cos violated your copyright you've got to show they had an opportunity to copy you well how would that opportunist way to show that they had that opportunity you registered your copyright and stored it with the United States copyright office it's now in the public domain so from that date forward my the thing I wrote is in the public eye and presumably anything that is like it that comes after that date that I published it and put it out there well you had access to and so you could have copied it sticking with that thing does an author have to register as a business in order to protect the intellectual property no you know wash your property is it is can be owned by individuals or by business okay so you'll be owned by any by either often it's it's owned by the individual first the example of the author writes a book or write something or puts an article on a website right that's an individual wrote that and they're going to own that original copyright because they're the author and then they can assign it they might be required to assign it by their employment contract to the company and they'll sign those rights to the company in that context and or they'll sign it to their own company because they want the company to hold those rights to build the building equity in the company build the goodwill in the company and that also comes down to what do I want this company to do what's my end game and this is the kind of discussion the bankers get into as these companies are trying to get funded and finance what's your what's your endgame here are you planning on expanding and becoming a major player or are you looking to fit an ish a niche that then another larger company might come in and want to buy you out now what can I call my business or product do you have any best practices as thats related yeah I this is one of those where if you can bring your marketing person with you know if you've got somebody there already talked to one that's the convert that's a good conversation to have because it really requires that that I understand what it is you're trying to do the essence of your company so going back to our Sally's you know flower shop you know I i if that's how he comes into my office a week and I just kind of came up with the name will call it you know sunflowers on the corner that that might be a really good name if that's the kind of kind of a of a business that she is so if we go and we look at her business and we see what she's really about and she's really about she's not really about the formal type roses and and bouquet type stuff she's more about the the country the provincial type of style where it's it's more wildflowers that's kind of what she's about and that's the style that she's got in her in her store well then that's why we might come up with something like sunflowers as a way of just giving an essence of what she's about without necessarily describing directly and this this goes back to what I think is this is this is you know marketing according to chris austin in the context of trying to protect your rights I think these suggestive marks they give a little hint that are not direct or a or a good start start for a smaller business the real challenge for smaller business is they're going to want to call it then they're going to pressure me I've got to call it Sally's flower shop or nobody is going to know it's my business right I've got to make my name my advertisement and I will continue to counsel them know you really don't because down the road once you become big enough you'll have no way to protect that name so I know a lot of businesses they don't think beyond this one store in an example of your Sally's flower shop so if I'm thinking about name in my company business should I give thought to how large I want to become you know whether franchising is an option if I want to have multiple locations do I want to have my name involved in that and in the business itself are those the kinds of questions that also are raised yes consultation yeah maybe they will come up and it depends a lot on what kind of business it is say I'm putting together a little daycare center and I want that that daycare center is going to have a certain quality to it here in Las Vegas and in the southwest generally these are going to need to have you know nice indoor space so that during the summertime the kids have a place to play that's comfortable and clean and is well supervised so I'm going to one eye and you got to put those close to where where where the families are they're going to need to use that service so it's likely i'm going to want to build build them in many of the little communities all around around the valley so i'll want to have one here in henderson i want to have one in in the sermon area one and maybe towards the boulder city area maybe if one in northtown i'm going to put these regionally close to where the families are so i could anticipate there's no likelihood if this goes well i'm going to build more of them well what's going to then make it clear to the neighbor that learns of it from henderson that then leaves and moves to summerlin that that's the business I want that that was a great little business there that little daycare center that was in Henderson I wonder if there's one in summerlin right as if I move out in that direction and the thing that's going to set that apart is going to be that trademark initially that's going to be the thing that's going to help me understand it so I'm going to want a trademark that I can continue to use as I go from place to place now that mark can be anything like we've talked about before as long as it doesn't specifically describe this thing they're doing so it can't be you know mrs. Smith's daycare center you know he's gonna have to be something more than something something less descriptive than that and they'll come up with that that builds into it a certain level of comfort and quality so that people who have heard about it by word of mouth or by advertising when they see another one in a different location they already have a sense of what that is before they walk in the door that's kind of like McDonald's I know what the mcdonalds is going to be like whether I'm in Shanghai or I'm in Duluth it's it's going to be the same and that because they've been very good at maintaining that kind of level of service and quality in each place and that all gets built into that trademark so I know what I'm looking for so yeah you do think about those things which we talked briefly about the idea of the name and we thought about how you can protect the name with if you are a professional service like I am I'm the name of my firm and it's an intellectual property firm the name of my firm is literally the name of the two founding partners right YTM Miller Miller so that that is because in a professional context the service is specifically identified with the individual providing it so you're looking for a particular doctor you know the doctor by name that does a really good service that you're looking for I tour the dentist I this is the dentist i recommend you know dr. George is great I'm going to go to him because he's he's done a great service for me in the past or whoever that's going to be and you're going to then it is built into that name your your performers you're with me I we also involved in the emotional property a true representation world we get involved with with people who are in the media and their name what we call their rights of publicity is like a trademark to them it's built right in and that is also the case for your professionals who provide those types of services it's built into their name so they'll build rights in that net they go forward now over time like law firm there can be as those below those two founding members whose names form the company as they continue to bring others on and as time goes on the firm gains that gains its own reputation based on the quality the training the types of services that are provided and so the name then becomes less associated with the original founders and more associated with oh that's the intellectual boutique firm that's got these you know the great attorneys that is what I want people to say right the great attorneys that know what they're doing that can help protect my intellectual property or or whatever whatever the service is that's going to be done so besides calling and engaging you immediately what should I do if someone steals my intellectual property well I've documented right away keep track of what it is they're doing keep track of what their connection to you is so if they're stealing and you've never heard of them before that's different than if they were your supplier at one point in time right because most likely if they are somewhere in the in the chain of your business there a supplier event or a former employee of a manufacturer whatever they are hopefully you will have had them sign that non-disclosure agreement or that you know something along those lines were an agreement that in addition to the protections that you've got under registering your trademark or your copyright you've got contractual protections that you can you can go after them for as well so these are all and that will give you some quick remedies in any of these cases let me just kind of make this really clear intellectual property is a unique element of property and as a result anytime somebody infringes it or steals that our takes it because it deals with what we're talking about here this goodwill this reputation that's not tangible how do i how do I tell how do I figure out how much my damage is right you've come along and you've stolen my my trademark and you're using it and people think you or me out there in the world I like how much your but you're not me and so every time you're out there work you're doing something you're not building my reputation your building yours or your destroy if your service doesn't match to mine that damage is what we call irreparable there's no way to put a dollar figure on it easily right it's not like I can count up the number of widgets that you you stole out of my store I don't know what the actual value of this is over the course of my business because of that the law gives a particular special remedy and that allows me as little as a lawyer to go into the court and say right now before we have a whole trial right now judge stop it order it to be stopped order them to stop the infringing activity order them to take that infringing trademark off they're good or off their building and then I can get that done in most other cases that's very difficult to do but in the world of intellectual property we can almost always get that accomplished if we can show clearly that there's infringement that's taking place it's not uncommon I was thinking about when you're talking about former employees but it's not uncommon to see a subset of employees start a business that is take advantage of the skill sets they've learned and things how as a employer I can I protect them from taking clients away and like and other to me cultural benefits what can I do from that perspective there are some things that you can do these come back to that employment contract that you have signed when you came on board right we all signed these when we came on board as employees at one point in time number one you can make sure they can't take anything that's that is trade secrets that's that's that's kind of gold rule we start with that anything that I qualifies trade secret doesn't go out the door well I've got to make sure I clearly identify the stuff at straight secret too so my employee my employee later on can't claim and say well I didn't know that was a trade secret well yeah you did because it was on your employee manual listed as confidential I put that confidential right on there where I wrote trade secret on there you know so any place I've got it in a format that's what I'm identifying it as so it requires a little bit of you know diligence and pre planning on the part of the part of the business to keep track of the stuff that's really important but most businesses have a sense of what's really critical to keep us competitive that secret recipe it's going to have trade secret on there and it's going to be locked in some fashion right used to be in a safe under under a special combination key now it's under an encryption and in the company's server and that's what you're going to do you're going to keep that set aside the next thing you're gonna do is part of that employment contractors you're going to have something on there that limits what they can do when they leave your employee okay and they look at that right out the gate now there these are we would call limitations on your ability to go out and compete so they're non-competition agreements that you can put in there there are limitations from jurisdiction to jurisdiction and how long the as a matter of public policy that any give any state or location is going to let you do that so in Nevada for example it's about a two year limit that you're going to look and let you do that but it's a balance between how long you don't get to compete or geographically what area you're not going to get to compete in okay right if my geographical area is larger then might then the duration of time I can prevent that person from comp ting against me is going to be smaller okay the policy issue is why I don't want to prevent somebody who's got that specialty from not being able to have a job right you know we're having to move to to a great distance away so there's gonna be a limitation than that really respect let's circle back to some of the patent so another patent question is it only enforceable here in the US does it extend beyond our borders it can be 80 can't extend you can get what are called international patent rights as well and those are those are very important if you are looking at a product or service that you expect will be that will be you know sold outside the United States or a shift to it or export it if you're concerned about people bringing it in and competing against you just in the United States this is your market right I represented a company called bond and their market is the United States they for the most part vapor and Canada they produce outdoor kind of high-end patio heating equipment and fire pits well look at the world who has the backyards to put nice heaters in them in and fire pits & to have these big expansive back door living spaces which is what although this furniture is designed for it's it's not really in Africa or China you're not even in Europe it's it's really kind of exclusively North America that that does that has that kind of style living so that is their market that they're going to focus on now they may also go get international patents and they do but it look I would look at the business model because it's more expensive to go and get these international patents I would want to take a stance and say okay where is this going to go if it looks like it's something that I want to get protection international you'll want to do that right out of the gate you'll need to file that fairly soon after you begin the process of seeking a patent in the United States because there are limitations in time they start to kick in for when you need to make those applications so it's a good idea to look at this if I have my production saying China and some other country where they're actually producing my good or service is that at the time I want to look up outside the US for protection if I'm if I'm using an overseas manufacturer I want to get protections as much as i can in that country as well as in the country where I expect the product is going to be sold yeah and in those cases you're going to need the expertise of penetrates because you'll need them in both jurisdictions okay to be able to appear before the court or the patent offices the respective patent offices in those two countries to get them to get them filed in and granted and in terms of just Nevada laws how helpful are they regarding trademarks that as trademark law is great it in Nevada there's not a what we call a substantive review of your trademark okay okay it's in what that means is just to give you the contrast if you apply for a trademark before the united states patent and trademark office you'll you'll send that application in and an attorney at that office is going to evaluate whether or not you qualify for a trademark and they might reject you or they might preliminary reject you and send it back and say you've got to give us this additional information or you need to make these changes and so there can be some give-and-take until you negotiate your way to getting that trademark approved and that's a fairly normal process and so the reason what trademark attorneys are sometimes they're necessary evil I guess is it were if you're going to get a trade through the united states patent and trademark office and you're really trying to get broad coverage not nevada in nevada if nobody else has taken that word it's like trying to get my business name if nobody else is using it then i want to get us blind and i pay the fees and I fill out the form it's mine and I still get oh I get all those presumptive rights that it's my trademark you've got to show a reason why you qualify where you you know that your marker your idea came up before mine in order to try and defeat me but I have the presumptive trademark rights and nevada by having done that and it's a 30 nominal fee i always if if you're going to be starting your business here get that trademark registration it's not a hard thing to do fill out the form submit it get it if it's you know i would still talk to a lawyer to make sure I've got truly a trademark that can be protected I'm not registering I mean the downside of Sally's flower shop could be registered in Nevada right right but as a matter of trademark law it has almost no trademark protection so i can't really enforce it if i have to because it's not really a trademark under the law so that that's why i would go talk come in and we'll come up with something like like we talked about you know sunflowers on the corner and that we go get registered with the state of nevada and at a minimum that gets us this area and then if she's going to start exporting out to the other states or two people who can skip and get on her website and order flowers and they really like what she's doing or she starts doing dry flower arrangements as well making me shipped well now she's going to she's now doing business beyond this tool geographical area and almost every business anymore does that because of the website presence that they've got so the idea of registering federally is almost a default I've got to do that as well if I'm going to if I'm going to be in any fashion marketing beyond the borders of the state great segue talking about websites so if I if I set up a website how do I protect people from copying what's on it good yeah and it's the same thing it's is your copyright protections make sure you've got on your website like we talked about before copyrighted and the date in the name of the company that it's copyrighted too so you can clearly identify that it's there and then it's a matter of deciding whether I'm going to like I said we go get that copyright registered if I have it just copyrighted that won't let me get into court to him to enforce it I've got to go get the registration when at least apply for the registration we call that the ticket to the courthouse so once i put my website up and then i look around the corner i say oh my gosh somebody has taken my whole design you know I had this really cool design that I put out there I hired a design graphic designer to put it together and somebody else has taken that exact same design not even the words just the design itself right that they've done well that's all copyright protected so at that point then I'll file that was if they came in and talked to me we would immediately file an application for a copyright with the Copyright Office and then we can commit then we can begin a legal process against them if we wanted to go and file a suit against them often it will resolve most of these resolve once an attorney gets involved and sends off that what we call that cease-and-desist letter that says look we see you you've got a you know a design here that's exactly the same as as our clients it was a website design available to everybody so we know you had access to it and it looks like you've copied it that violates the US copyright laws and it has a damaged attached to it if we prevail up to 150 thousand dollars statutory damage I don't have to prove you did prove any harm at all just show that you maliciously copied my my stuff do you want to do that or do you want to just take it down right and that's the kind of thing that will send out initially to try and resolve it and if that doesn't work then unfortunately may have to file that suit and the that's one part that the other thing we can do to that we're talking about websites huh I can also go to there if into the to the host that's hosting their website and under other international laws that deal with the you know what's called the udrp rules I can issue a complaint and say look that website is copying my content I want them to I want you to issue an order that they stand down or take it down I want to take down order on that website to take the whole website down and under that regime which is a separate process and administrative process that can be very effective at they'll you know they'll go in and give that you know give that the website a little warning it says look we've been we just received a complaint that your stuff is composed is infringing this other copyright provide documentation to show that it's otherwise where we will be taking it down and there's a process that's involved and that can even be faster than trying to go through a legal process so do you make the determination of which direction you want to go or is there protocol do you typically start with that company and then work towards the hosting company or do you have either Avenue yeah we will I will typically try to resolve that informally and as cheaply as possible for the client that's usually their interest right right so that that typically is a phone call or a letter first before we really get into having to do some formal legal documentation that's going to cost you a lot more money so if I get then then we'll look at the look at the nature of the infringing activity to see whether a udrp process would be better or a federal court route might be better as we wrap up last question how do i prevent I'm sorry others from using my name ah yeah your trademark in this case so they don't infringe your trademark in its kind of the same thing same kind of a process if I find somebody that's using my trademark my initial response is going to be a look I need you to stop I'll send a letter off make a phone call see what you do to get them to understand they need to take that down we have these kinds of images so that that happened that's one way to do it and then again no that doesn't prevail then I have a couple of other options right I can also it depends what they're doing if they're just infringing my mark then I'm going to have to go to court round to try and get them to stop if they're trying to register their own trademark with the US patent trademark office and I think that their mark is too close to mine too similar for similar types of goods and services well I can I can join into that process and submit documentation to the trademark office and what's called either an opposition to their application or I can seek to cancel their registration if they got a registered and try to prevent their mark from getting issued from the trademark office as well so there's there's other alternatives and it's impossible to say right out the gate which one's going to be the appropriate one in every context it really depends on the nature of what that business is trying to do and how much time we have or whether the issue is the trademark or whether the issue is the goods and services that are being sold under that trademark what we're going to focus on as a remedy to try and stop that but in every case we'll try to stop it as inexpensively as we can first before elevating it to the next the next level to try and take it to take it out well I've certainly enjoyed the information I found it very informative and and also I can apply this i was i was able to follow you and the logic behind behind your comments and thoughts but just to know in concluding if you had any final comments before we wrap up sure I but my guess my last comment would be as you as a small business and you're getting to go you're getting going on one of these things and you're going to start a new process take the time to think through what is it that's going to set me aside from every other everybody else that's out there what is it that's my particular niche the service I provide the good i provide and let's make sure that we've identified if i have to write them down here's what they are and whether you identify them as a trademark a trade secret or a copyright that may be less important and i'm not expecting a nobody expected we didn't keep track of all of those things but identify this is what we do that's cool this is what we do that's better this is the thing we provide that's that's new and that solves a problem and list those things out and then make sure across that list you've identified a way to protect them and if you walk into my office with that list we can we can certainly show you and so can any of the other intellectual property attorneys in this town best of luck to you and you need is this on behalf of nevada state bank i like to thank Chris for presenting this valuable information my pleasure we hope you can apply some of these ideas to help your business succeed and thank you to everyone who participated especially those who submitted questions via Twitter if your questions was not answered today we'll send you an answer in the next few days if you like to see the webinar again or invite others to see it a recorded version will be available later today on Nevada small business com I'd also like to invite you to register for the next webinar in the insights series which were ere on July fifteenth it will feature legal experts discussing ways your business can reduce the risk of litigation you can register at ww NS bank calm / webinar we will also have a webinar on june twelfth designed especially for family-owned businesses the focus of this webinar will be on performance expectations evaluation and compensation you can register for it at w WN s van calm / family business this web page also contains links to other family business webinars and our free family owned business newsletter thanks again for participating and have a great day you you