Making It Legal:

Here’s an encouraging story about how someone fought back against a Twitter-jacker–and won!  StartUp Nation founder Rich Sloan outlines how he found out that someone had co-opted StartUp Nation’s identity on Twitter and the steps he took to resolve the situation . . . and without incurring huge legal fees.  Read through the comments, too, as they provide sound advice about the need to monitor your company name and trademarks on a regular basis.

With so much stuff on the internet available and ripoff-able, what steps can we take to fight back?

Q: I have several blogs, and I wrote several articles that I have published to article directories. Doing research on my topics I found my article posted on another website and another author put his name to it. I e-mailed the author and he said he didn’t put that there, he never saw the article, and I asked him to take it down. Well, it’s still there.  What should I do?

A: If the article is still there, it could be for a couple of reasons: 1. Either the “author” is telling fibs, thinking you won’t do anything or 2. there’s a technological glitch somewhere that the “author” doesn’t have access to correct.

Under Section 512 of the Digital Millennium Copyright Act, you can write to the website/blog service provider to alert the provider to the situation.  Be sure to include the following information:

1. Your name, address and electronic signature.
2. The infringing materials and their internet location or, if the service provider is an “information location tool” such as a search engine, the reference or link to the infringing materials
3. Sufficient information to identify the copyrighted works (e.g., the title and link to the article)
4. A statement by the copyright owner (you) that you have a good-faith belief that there is no legal basis for the use of the materials complained about, and
5. A statement that the notice you’re sending is accurate and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner (e.g., the “owner” may be your company and you’re the president; or if you’re one and the same, say that you are bringing the complaint individually and you are the individual owner).

Once you send the notice, the service provider is required to remove, or disable access to, the material.

I like street fairs as much as the next gal (maybe more!), but can Kate Spade r-e-a-l-l-y be selling those charming handbags for only $10?

Q:  Is there any way I can I sell replicas legally in the United States?  How can I be sure I’m being protected?

A:  It is absolutely illegal to sell replica merchandise bearing the trade name of the original company on it. This is trademark infringement for which there can be serious fines.  If you wanted to sell replica merchandise, the only way to ensure that you would be protected is to contact the company and ask to license their trademarks.  However, be prepared to pay a stiff license fee if the brand is “hot” (as in popular, not stolen).  Be careful, too, with knockoffs that are made to look deceptively like the original merchandise (e.g., Louis Vuitton handbags) but don’t use the exact logo–that could spell trouble for you, too.  Best bet, if you want to be protected, is to take a sample of what you want to sell and consult with an intellectual property attorney about the pros and cons.

Q: My company is into trading of plastic and software products. I have tied up with an individual in London who owns copyright on a security software. I would like to be his distributor for African and Asian regions, as I have resellers in those regions who have orders for the same.

My question to you is can I produce the software in CD form on behalf of the copyright holder in India if he gives me the permission to do so as he holds the key generation software to unlock the same software?

A: Generally, if the holder of the intellectual property rights gives you permissions, you can do whatever you agreed to.  But that agreement should be in writing.  To cover yourself, you’ll want to clarify some additional issues, as well (of course, in writing):

• That your London contact is the rightful copyright owner of the software (you mentioned that your London contact and an Indian contact have the rights–either they have the rights jointly, or only one of them can own it.  You cannot assert legitimate rights to make CDs of the software if you know that one person ripped it off from the rightful owner.
• Whether your London contact has other intellectual property rights vis-à-vis the software (such as patents)
• Whether other distributors have been authorized for your territory
• The period of time that you’ll be entitled to distribute the software
• That you in fact have permission to produce the software in CD form (or any other authorized forms)

Distribution agreements can get complicated–and there may be international trade regulations or tariffs involved in distributing this software.  Make sure to speak to an attorney who knows this area well.

Beginning tomorrow, award-winning global brand analyst Mary van de Wiel (aka Van) and nine other creative visionaries (including moi) will share their insider strategies with entrepreneurs, small-business owners, and startup CEOs through a FREE online Brand Reinvention Summit.  This innovative summit is designed to help struggling businesses rethink, revitalize and repackage their brands to get a leg up in today’s economy.

Over the course of 48 hours, from 10 a.m. Thursday, Oct. 1 to 10 a.m. Saturday, Oct. 3, Van presents an online interview series focusing on how to take your brand from ordinary to extraordinary (”from blah to zing!”).  The summit will provide inspiration, insights, tips and action steps to help shake things up, change how you think about your business and transform your bottom line.

In addition to Van, the participants are Simon Sinek, Anita Campbell, Kaira Rouda, Liz Taylor, Nick Morgan, Ph.D, Nina L. Kaufman, Esq., Melani Ward, Dianne Legro, and Kim DeYoung.

To listen to the series from the comfort of your home or office, go to the link at www.blahtozingsummit.com and sign up.  You can sign up any time before and during the Summit, but you must sign up to get access.  The free 60-minute interviews will be streaming throughout the day from 10:00 a.m. Thursday, October 1 to 10:00 a.m. Saturday, October 3.  Afterwards, a digital package will be available for sale.

For participant bios, summit topics, and more information, go to www.blahtozingsummit.com or www.zingyourbrand.com.

For a slideshow preview, go to:
http://www.slideshare.net/maryvandewiel/whatsyourzing.

For more information, contact:
Mary van de Wiel, Zing Your Brand
van@zingyourbrand.com
718-909-1140
www.zingyourbrand.com

If you’re an entrepreneur, startup CEO and small-business owner, you know how important your brand is to your success. That’s why I’m thrilled to be speaking at the upcoming Brand Reinvention Summit on October 1 and 2. It’s an interview series that you’ll be able to listen to online and learn about the greatness that comes from taking on the role of the Brand Agent/Provocateur in your business.

I’m going to be speaking about some of the legal risks involved in choosing and using a brand (both online and offline), and how you can avoid them. There are nine other fabulous speakers who will teach you how to revitalize, redirect and repackage your brand.

Here’s the surprising part: This telesummit is f*r*e*e, so make sure you visit blahtozingsummit.com to sign up now.

Q.:  I’m wondering– is it still possible that I can capitalize on an idea/concept that is 21 years old.  I was diligent in obtaining corporate backing-so I contacted several corporations that were big in the industry. I was trying to indulge in as many contacts as possible. I guess I talked to the wrong person and 4 or 5 yrs later there was a patent issued on the idea that i had submitted 4 yrs-prior.  To date, there’s no indication of my concept on the market, yes, there’’s some shallow rendition of it but the concept or idea I had in mind hasn’t been exploited. Is it possible to regain this idea and re-invent it, and would be impossible to gain protection? I’m just wondering . . . 20 years later.

A.:  All is not lost, necessarily, even 20 years later.  You may be able to pursue your invention.  However, you would need to be sure that the concept you want to explore meets the Patent Office’s criteria for being “novel” (not previously patented, known, or used in the U.S.).  It also needs to be “non-obvious,” that is, sufficiently different from what has been described or filed before and/or fills a need not previously met.  In other words, is there room for the two patents to co-exist without overlapping?  If this sounds like grasping smoke, you’re not far wrong.  To get it right this time, consult with a patent attorney about the intricacies of your invention and how it differs from the one you say was ripped off.  And don’t speak to any contacts without having a signed confidentiality agreement in hand!

I first met David Greer, angel investor and entrepreneur, when he weighed in on my Business Partnership Central blog on the importance of having a written shareholders’ agreement–and how that freed him up (when he sold out his interest) to sail the Mediterranean for two years (drool).

Now he offers some handy insights to follow up on my post, ”How to Speed-Read an NDA,” which I’m delighted to share with you.  David writes:

Thanks so much for the article on NDAs. As an angel investor and entrepreneur, I see those all the time, and I am often required to sign them.

Under the “Confidential Information” section, I also look for who is disclosing to whom. I have seen “one way” NDAs. That is, the information disclosed to me is confidential, but the information that I disclose is not. As I see so many technologies and companies, I am very careful about information I disclose and to whom, making sure that I do mark confidential information as confidential. That doesn’t help if I’ve signed an NDA where the other party isn’t going to keep my information confidential. One of those little “gotchas” that you can pick up in a quick reading of an NDA.

“Why can’t I handle my own patent/trademark/copyright filings?” you ask.  “I’m getting started on a shoestring–do I really need to spend the legal fees?” Go right ahead and DIY . . . but if you’re not on target about what you’ve done or how thoroughly you’ve handled your background research, you could find that you’ve dumped a lot of money into IP that you simply can’t protect.

Listen in to my interview of Amy Goldsmith, Esq., an  intellectual property attorney and partner at Gottlieb, Rackman & Reisman, P.C. in New York City. Amy gives us the lowdown on:

• Why you can’t “patent” a company name (you trademark it)–and why it’s important to get the terminology straight
• What kinds of trademarks pass muster with the Trademark Office
• How a trademark search (done by professionals) will unearth possible obstacles you never dreamed of  . . .  and save you time, money and energy

If you want your intellectual property to become a valuable company asset, listen to this interview!

“Can I? Can I?” I hear you asking. Well, you’re asking the wrong question. The issue is not whether you can download your client contracts from the internet, it’s whether you should.  And once you do (because you know you’re going to do it, right?), how can you get the best use out of doing so?

Downloading agreements from the internet is good for starting to educate yourself about the kinds of terms you might want to include in agreements with your clients. But here are two significant things the online agreements (even the ones you pay for) can’t tell you:

• They can’t tell you whether there are any provisions in the contract that could hurt you.
• They can’t tell you whether there are any provisions that are missing that could help you.

Poke around the internet all you like; but in the end, only you can decide which business terms are best for you. What specific products or services will you provide to your clients? Within what time frame do you want to be paid? What happens if you’re not paid in a timely manner? Have a look at my program, How to Train Your Clients to Pay You, to get the lowdown on the important decisions you’ll need to make. And once you’ve made those decisions, have your attorney wrap them up in a nice, neat legal bow to protect you properly.

Non-disclosure agreements (NDAs) have many uses. You may have a fabulous idea and want to protect it as you share it with potential investors. Or you may be on the receiving end of one, as this article, “How to Speed Read an NDA,” anticipates.  Written by my colleague, IP attorney Terence Church, Esq., the article gives you a brief rundown of the top six issues you’ll want to see in any NDA you sign. 

Of course, this leaves aside the issue of whether you really should be doing business with someone who shoves an NDA under your nose 2 minutes before you’re about to begin a meeting with him or her and expects you to sign it without the benefit of discussing it with your legal counsel. If he or she won’t give you the time to review it carefully (assuming you’re an entrepreneur who takes her contract obligations seriously), you may want to take your business elsewhere. If you’re in a line–or at a stage–of business where NDAs are common, speak to your attorney to get guidance in advance about how best to handle these kinds of situations if they arise.

This is a perennial favorite:  “I have no money, but have an idea that’s going to be great.  How can I take steps to launch it on a shoestring?”

Q: I have a great diaper idea for the ”on the go mom” that I think is unique. I don’t have money for any startup to manufacture this product, but I have started creating a presentation explaining how the product works. If this product goes to market, I’m sure it would be profitable for myself and others involved. In addition, there would be a possible partnership with diaper manufacturers such as Luvs, Pampers and Huggies. If possible, would you be able to point me in the right direction on how to get started with getting a patent or trademark, potential investors and anything else I would need to possibly get this product to market?

A: One of the dangers of getting started on a shoestring with great ideas alone is that ideas are very easy to steal. In fact, unless you have been able to translate them into some form of intellectual property (like a patent, trademark or copyright), it’s very hard to protect ideas themselves.  You could try to have your potential manufacturers, corporate partners and investors sign confidentiality and nondisclosure agreements, but often, major corporations won’t do that, as they may simultaneously be working on their own prototype in their R&D department and will not want to jeopardize their own efforts. 

The Patent and Trademark Office has a lot of educational information on its website (http://www.uspto.gov/). That said, actually filing for a patent (or provisional patent) is not something you should attempt without the benefit of legal counsel. Doing it improperly or inaccurately could create long-term problems for protecting your prototype, which would make the product less attractive to investors. Where you may want to start is by consulting with an intellectual property attorney who knows this area and getting some ballpark figures on the costs for getting started on the right foot legally. You’ll also want to do some market research to get a clear handle on the potential market and costs for product manufacture to put into a business plan. Then you can make a more educated determination of whether you really do have the finances (or access to credit) to give your idea the solid footing it will need to move it forward.