Making It Legal:

This week’s Basic Training involves a situation that really stinks. (Insert groans here). Read on to find out why . . . .

Q: What are the rights of co-workers when another experiences side effects (i.e. malodorous flatulence) due to gastric bypass? The surgery is not recent, and to add insult to injury, the offender does not maintain a healthy diet, which only exacerbates the problem. The office manager has supplied the office with various oder-eliminating products, which we all use, except for the guilty party. He has absolutely no regard for his co-workers, and to my knowledge our HR person has not counseled him on any kind of office etiquette. There are laws in place to protect those with medical disabilities, but what type of protection is there for those having to be around such an inconsiderate person? This may seem like a joke, but it is not! I think people are leery to say anything to this person for fear of being accused of discrimination.

A: Unquestionably, your employer should be doing more to resolve the problem than merely leaving bottles of Beano sitting around. It’s not clear whether your co-worker’s flatulence is truly disability-related. You mention other factors, like poor diet, that may point to this being simply a hygiene issue (which is not a protected class under discrimination statutes). It’s for your employer to determine whether there’s really a disability issue here and, if so, whether the Americans with Disabilities Act applies and there’s an accommodation that will resolve the problem. If your company is sophisticated enough to have a dedicated HR person, it probably has an HR manual that outlines grievance procedures. Following those steps should make it clear to your employer that you (and others) mean business and that this issue must be addressed.

Jersey Shore star Nicole “Snooki” Polizzi’s latest wrangling with the U.S. Patent and Trademark Office over her trademark just goes to show ya: Celebrities are ordinary businesspeople, too, and they also run into trouble with their trademarks.  Seems that Polizzi wanted to trademark her nickname, Snooki, but ran into a cat fight.  Literally. 

Here’s the issue: Snooki wanted to trademark her name in connection with her entertainment personality and in connection with books. (Is a bare-all memoir in the works?) The Trademark Office had already, in 2004, cleared a trademark for Snooky the Cat (who, apparently, has all sorts of adventures of his own) in connection with the book, Adventures of Snooky.  As noted on The Smoking Gun, the Trademark Office indicated that there was a “likelihood of confusion” between Snooky and Snooki.  If Snooki insists on using her name in connection with books, she could find herself on the wrong end of this cat fight.

This doesn’t stop Snooki from moving forward on the “entertainment personality” claim, but it does derail her on some of her “expansion” plans.  Which is something Snooki might have uncovered had she done a proper trademark search. For more about what makes for a solid trademark (or service mark), get your free copy of my “Intellectual Property Protection Kit,” available at http://bit.ly/freeintellectualpropkit. 

Too many entrepreneurs jump into the trademark pool with both feet.  They don’t check to see whether they’ll be landing atop someone else’s head . . . in which case all of the money they’ve pumped into logos, websites, text and marketing initiatives may need to be scrapped. They can avoid getting snookered like Snooki, and fully check out that great new mark before they waste the money.

And dat’s The Situation.

Complaining about someone stealing your IP when you sat on your hands is like complaining that someone broke into your house when you left the front door wide open. If you have items at home that you value, you take steps to protect them. You put a lock on your door. You hire an alarm company. You get a Rottweiler, Fang, as a household pet.

The same applies to your intellectual property. If you value it, take steps to protect it. First, though, you need to know what you have.  My article, “Protect Your Intellectual Property,” looks at the top five categories of intellectual property.  Give some thought to what you’ve created for your company. Can it be protected by:

1. Patent
2. Copyright
3. Trademark (or service mark)
4. Trade dress
5. Trade secret?

Many small companies create websites, brochures, articles and other written materials that are strong candidates for copyright protection.  Check out attorney Mark Grossman’s article “Some Copyright Mechanics,” to get familiar with the truths and the myths about how to protect your copyrights.

Q: Just wondering if my kids can sell their Lego creations online? I’m mostly concerned about the “Lego” brand name infringements. That is, if my kids were to make their own original creations using Lego pieces and advertise them on the internet as, oh, I don’t know, “Jake and Joe’s original Lego designs”–and sell the completed creations–without implying their creations are bigger, better and more valuable than Lego’s . . . could they do that?

A: While you can sell Lego creations online (check out this artist who has actually made a “business” out of large-scale Lego creations–http://www.brickartist.com/), you have a number of issues to consider. They include:

• If your children are under the age of 18, in those states, they cannot open bank accounts or enter into business relationships. In other words, the responsibility will fall on your shoulders (or that of another responsible adult).
• If your children used someone else’s creations (or instructions) as a model for the designs they created, there could be an issue with copyright infringement.
• There may be truth-in-advertising laws in your state that govern your description of the designs. If you are going to tout the fact that Lego pieces were used in the construction of the creations, you should divulge whether any non-Lego pieces were used.
• You will also want to be careful about the way you refer to Lego in your description of the creations. It’s one thing to state factually that the creations were made from Lego pieces; it’s quite another to start trading off the Lego name and goodwill by implying that the creations have a greater value, physical strength or quality because of the use of Lego pieces.

There was a case about this kind of issue not too long ago involving the Tiffany jewelry store, which was quite upset that its trademark was used to describe possibly counterfeit merchandise being sold on eBay. The court said “too bad”: As long as consumers are not confused about the source of the goods (in your case, that Lego itself is not selling these creations), and there’s no indication that Lego is endorsing what your kids are creating, you can say (if true) that the creations are original designs made with Lego pieces (or words to that effect). To make sure that you’re in compliance with all appropriate laws, it would be worthwhile consulting with a local intellectual property attorney to make sure that you have all your ducks in a row for these online sales.

For anyone who ever doubted the benefit of confidentiality agreements, the case of Chris Botticella, former Thomas’ English Muffin executive should put the doubts to rest. 

As recently reported in the New York Times, Botticella was one of a small handful of people who knew the entire “nook and cranny” secret.  He signed a confidentiality agreement with the company. Within a year, he gave two weeks’ notice (ostensibly, to retire), but then rumors circulated that he was jumping ship to go to a competitor, Hostess Bakeries.  It was also claimed that, after Botticella confirmed he was going to work for Hostess, he immediately started downloading Thomas’ confidential company information. 

Lawyers for Thomas’ parent company, Grupo Bimbo, acted quickly to prevent him from making the move.  Because the case is tied up in court . . . and presumably because they don’t want to get dragged into the lawsuit, Hostess has said it is no longer holding the job for Mr. Botticella.

For the fuller story, see http://www.nytimes.com/2010/08/07/business/07muffin.html

It’s a good reminder to companies of all sizes of the value of protecting their intellectual property.  Too easily, they let employees and others have access to their proprietary information, only to find out they may have trained their next competitor.  A confidentiality agreement that prevents any misuse of their property can go a long way to keeping their business intact.

What struck me about my conversation with Alicia Marie Fruin, a national leader in coaching and training for small-business owners, and founder of PeopleBizInc.com, is that she so quickly zeroed in on where entrepreneurs get stuck. Stuck in doing everything ourselves because we can’t see a way for our company to expand past our limited skill sets. Stuck in not having a “duplicatable” business–that is, one that can function (and generate money for you) even when you’re not there.  (Hey, I’ve been there, done that and bought the T-shirt.)

Is your business worth having? Would you want it if it weren’t yours? Alicia has been an entrepreneur for almost 20 years, and has coached managers, presidents and sales professionals for more than a decade.  So listen in as we talk about what got her going, what she wished she knew when she first started and a legal cow pie she got thrown into because she was too quick to offer suggestions.

Also check out Alicia’s “Ask An Expert” podcast series, available at PeopleBizInc.com.

As Kat Gordon, founder of the mom-centered marketing agency Maternal Instinct knows well, moms influence 85 percent of their household purchases.  There’s an art (and a science) to marketing to mothers.  Being a business owner, she also learned the hard way that there’s an art (and a science) to getting paid by your clients.

Listen in to my interview of Kat where we talk about:

1. How a friendship and a rush job combined to create a volatile non-payment cocktail
2. Smart business advice from . . . a 6-year-old!
3. Why a recent audit led her to change her information storage methods
4. What she wishes she had done earlier for her business

For more info about marketing to moms the right way, you can follow Kat on Twitter @katgordon and visit Maternal Journal, her agency’s blog.