• IP Mastery for Entrepreneurs with Julie King: Trademarks, Patents, and More

  • By: Julie King
  • Podcast

IP Mastery for Entrepreneurs with Julie King: Trademarks, Patents, and More

By: Julie King
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  • Summary

  • Learn about important trademark, patent, and other intellectual property law issues important for entrepreneurs to understand. Julie King is an intellectual property and licensed patent attorney who loves talking about how tools like patents, trademarks, copyright, trade secrets, and more can be used to protect a business and brand, used to help them grow, and become highly valuable business assets on their own.
    2023
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Economics Leadership
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Episodes
  • Can You Copyright or Trademark a Logo Designed by AI?

    Can You Copyright or Trademark a Logo Designed by AI?
    Dec 26 2023
    The legal world is buzzing about AI and its use for all kinds of things, including generating logos, text, and other things people would normally want to register for copyright or trademark protection. I'm particularly nerding out over these issues, because my master's degree project involved training of artificial intelligence systems. Rights to AI-generated content, and to content made on creative platforms, aren't always easy to understand, and they have a big impact on how you can use it and if and how you can protect it. There's no doubt AI is incredibly useful for generating content, though there is still no substitute for a real human author or artist. But what rights do you have to what it creates for you? Can you use it in the ways you want to? Keep in mind the generators are trained on existing material, including things that are protected by copyright and trademark law and registration and patents. There have been some court decisions on this precise topic, but the law is not completely settled. However, there are some certainties and principles of law that can guide you. AI-assisted programs, like online logo generators, aren't straight AI tools like ChatGPT. Instead, they provide templates tweakable using AI. If you're using an online logo generator, such as the one in Canva, a very popular online program for creating all kinds of visual projects, or Logo.com, you need to look at the license terms of the software. Canva and other logo generators are licensing the use of their product and the generated logos in it to you. You'll almost certainly see language that says you cannot apply for copyright or trademark registration for those logos, and that Canva and whoever they licensed the clip art, photos, etc. used in those generated logos retain the ownership to that original art and do not give you a license to use it exclusively. Even when you make a "new" creation with those elements, they still belong to Canva and/or whoever licensed them to Canva. I made a logo for Bob's Burgers for selling burgers on Tailor Brands' logo maker website. Their terms say I own full commercial (note they don't say "exclusive") rights to it and can apply for trademark registration for it (through the, naturally, even though they aren't lawyers and will just copy whatever you provide them into the application and submit it whether it's appropriate or not). Well, they're right, I can apply, but registration surely won't be granted. For starters, Bob's Burgers is already a trademark belonging to someone else. Second, they had me pick one of 20 graphics for use as part of the logo. That means in no way is that graphic element going to be unique to my logo. The lack of exclusive rights here is fatal. These generators also don't address other issues that can lead to refusal to register a trademark. usually you won't be given the rights needed to have ownership or apply for registration, but even if you are, your logo could still be refused copyright and trademark registration for other reasons. If you use another kind of AI tool to create a logo, like Canva's AI tools or DALL-E, the platform doesn't claim any ownership rights, including copyright ownership, to the output. That doesn't mean you're in the clear for ownership and registration, however. Some of the elements in the output may be identical to or similar enough to work made by others that it would be infringement to use it without proper credit to and licensing from them. Copyright I asked DALL-E to make some logos for me for use in this post. I've seen enough stock graphic elements when doing trademark and copyright searches to know that the crown elements and scales of justice elements are likely to be highly similar to or identical to crown and scales designs owned by Getty Images or some other entity or artist. That means not only is it possible I do not own exclusive rights to those elements, it is also possible I would be infringing if I use them commercially (I'm using them educationally here, so that's ok). The US Copyright Office has issued some very helpful guidance about copyright ownership of AI-generated works in the US. The general gist is this: copyright only protects works made by humans. AI isn't human. The Copyright Office views the human prompts that generate AI output as akin to instructions to a commissioned artist where the AI determines how the instructions are carried out. In such cases, the output is ineligible for copyright ownership or registration. If, however, a human takes AI output and selects, arranges, or modifies it in a creative way the work may qualify as a work of human authorship that can have copyright protection. There's a catch, though. Any parts that came from the AI are excluded from that ownership and protection. Only the human-authored parts can be protected. Trademarks The United States Patent and Trademark Office (USPTO), is also working on handling the influence of AI ...
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    14 mins
  • Avoiding a Busted Brand: Preventing the Pain of Forced Rebranding through Trademark Registration

    Avoiding a Busted Brand: Preventing the Pain of Forced Rebranding through Trademark Registration
    Nov 11 2023
    https://youtu.be/6cFVLWV0ZI4 This is part one of a 10 part series on Essential Benefits of Trademark Registration. This week, the topic is Avoiding a Busted Brand: Preventing the Pain of Forced Rebranding through Trademark Registration. I'll be talking about five painful problems that can happen for your business when you don't take the correct steps to develop your brand, and how to avoid those problems or get started in handling them. Imagine you've been using your business name, logo, or slogan for several years, building a good base of local customers. You make moves to expand your market, and suddenly you get a cease and desist letter from another business that has better rights to the trademark, or you go to file an application for federal registration, and the search to identify any possible problems uncovers an identical trademark for similar goods and or services, meaning there's no way you'll get your application approved. What was a time of exciting expansion has now become a horrorscape of being forced to rebrand. Rebranding is painful enough when you want to do it and plan for it. Being forced to do it quickly on someone else's timeline can be disastrous. Let's get into the top five painful issues involved with forced rebranding. 1. Financial Cost Rebranding can be a significant financial burden. Without even going into the possible loss of business that can come from rebranding, costs of rebranding include having new logos designed, having new marketing materials designed, updating signs, changing packaging, updating websites, and potentially launching marketing campaigns to reintroduce the brand to the market. That's a lot of expenses, and they can add up to tens of thousands of dollars. Even if you're just starting out or handle all those things yourself, that's going to cost you in terms of hours you won't be able to spend working on the core of your business, or extra hours at the expense of your personal time with your family and friends. 2. Loss of Brand Equity Rebranding means letting go of the brand equity that the previous brand had built over time. Your brand is what people associate with the service, quality, and trustworthiness of your business. Those things are crucial to a business, and they don't get associated with a brand overnight. It takes hard work and countless hours. Once the traits you want associated with your brand have been established, They create customer recognition, loyalty, trust in new offerings, and referrals from existing customers. It takes a while for that to rebuild when rebranding happens. Sometimes it works fairly quickly, like when Facebook renamed its parent company Meta, with Facebook remaining as the name of just the part of the company handling that social media service. Or when Kentucky Fried Chicken changed to KFC. But more often it takes a very long time, like when Netflix re branded its DVD by Mail Services as Quickster, which caused the company's stock to fall, and Netflix put the mail service back under the Netflix name. So that failed completely. Or when PricewaterhouseCoopers briefly changed its business consulting branch's name to Monday, which just confused people and had none of the connotations of experience and quality the original name had. Loss of Brand Equity Can Create Confusion Loss of brand equity can create confusion among consumers. A sudden and significant change in brand identity can confuse existing customers because they might not immediately recognize the new brand, leading to a temporary drop in customer engagement and sales, like what happened with Netflix. This confusion might also push consumers to competitors who still have a familiar brand. Loss of Brand Equity Is Loss of SEO and Online Presence Loss of brand equity is also loss of SEO and online presence. If your old brand had established an online presence, changing to a new brand can at least temporarily negatively impact search engine rankings, website traffic, and social media following. Keeping SEO phrases connected with the old brand may seem tempting, But that can still cause you to be accused of infringement by driving customers of the other brand with the superior rights to the trademark to your website behind the scenes. 3. Communication Challenges. Rebranding requires a lot of communication. You have to effectively communicate the reasons for the rebranding to customers. partners, and stakeholders like employees and shareholders. It's crucial to do that. Poor communication can lead to misunderstandings, negative perceptions, and a decrease in consumer trust, all of which can lead to decreased business. How much effort will you put into explaining the rebranding to these groups and convincing them they can expect the same quality and trustworthiness they associated with the old brand? How do you craft a message about that without admitting you're rebranding because there were infringement issues? Even if you ...
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    11 mins
  • Why Do You Need an Operating Agreement for Your LLC?

    Why Do You Need an Operating Agreement for Your LLC?
    Nov 7 2023

    https://youtu.be/P0L4-naDotk

    Why do you need an operating agreement for an LLC? An operating agreement is not required by law in Illinois, but you're doing yourself a disservice not having one. They're important for banking and financial transactions. They set up a roadmap for avoiding problems and for handling ones that do arise, and they help keep good relationships between owners good.

    How do they help with money? Often banks will require an operating agreement in order to open a business bank account for the LLC.. Banks will almost always require an operating agreement when the LLC is taking out any kind of loan. If you ever sell the LLC, the buyer will want to see the operating agreement so they know they're dealing with the correct representatives of the business with authority to do the transaction.

    This goes when someone is wanting to join the LLC as a member as well. They're going to want to see who the right people to deal with are, and they're going to want to see that everything is in order as it should be.

    So how do operating agreements help prevent problems with operating the LLC? A good LLC operating agreement is a good plan. It will address things like:

    • what kinds of decisions need to be voted on;

    • what kind of vote is needed to approve certain things - maybe taking out a loan needs a simple majority or two thirds vote, whereas bringing on a new member requires a unanimous vote;

    • how to handle tied votes;

    • what to do when an owner wants to leave the business, dies, is incapacitated, or the other owners want to kick them out;

    • how and when to bring in additional owners;

    • what rights investors have;

    • which role is generally responsible for which duties;

    • how profits and losses will be shared;

    • how things will be handled if the business must close; and

    • more.

    A good operating agreement will set forth how to handle all those things and more so there is an easy roadmap for LLC members to follow and not end up lost in disagreements and hard feelings.

    So, you're spouses, best friends, et cetera, you don't think problems like that will happen for you. It would be wonderful if that turned out to be true. Statistics, though, show that good relationships and intentions at the beginning aren't enough, and that it doesn't take much for them to turn sour.

    I've personally handled cases where former best friends were at each other's throats when one decided to end their LLC, and their operating agreement was something they got off the internet that didn't have any provisions for ending the LLC. It took months to resolve, each side paid a tremendous amount in attorney's fees to come to a settlement agreement, and the friendship was permanently destroyed.

    I had another case where siblings running a long time family business ganged up on another sibling and kicked her out of the family business so they can implement some shady business practices. The entire family was ripped apart, with members of the family taking sides. That damage was permanent, and again, it took months to resolve, and the only ones who came out ahead were the attorneys who got paid to negotiate a settlement.

    An operating agreement may seem like an expensive investment when starting an LLC, especially if you've already been running the business without one and without trouble.

    Statistics show only 25 percent of businesses last for more than 15 years. Even those that have lasted that long have their fair share of unexpected problems. It's not a smart gamble to go without an operating agreement to handle those problems or to help if you're not in that 25%. And a good operating agreement can help you be in that 25 percent who survive.

    It's true, a good operating agreement is not cheap. The cost of not having one, though, can be exponentially higher, both in actual cost and the cost of once good relationships that turn permanently sour.
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    4 mins

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