Episode 29

full
Published on:

1st Nov 2021

Why Trademarks and Copyrights Are Important for Your Business with Francesca M. Witzburg Esq.

In this episode, I interviewed Francesca M. Witzburg who is a Trademark and IP Attorney and we discussed: "Why Trademarks and Copyrights Are Important for Your Business."

Connect with Francesca M. Witzburg

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LinkedIn

Clubhouse

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Transcript
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Welcome to the mesmerizing marketing podcast, where we take a deep dive

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into the latest marketing trends, tools, and tips, and provide you with

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the top resources you need to thrive and make your marketing mesmerized.

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And now here's your host dimple.

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Dang.

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Hello everyone today.

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I'm so excited to be here with Francesco wits.

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Roku is a trademark and IP attorney, and I'm going to let her introduce herself.

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Welcome Francesca.

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Hi dimple.

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I am so excited to be here today.

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My name is Francesca Pittsburgh, and I am an intellectual property lawyer.

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I handled trademarks, copyrights, anything really related to

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those two transactionally.

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And I run the Instagram account, the trademark attorney to educate and

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empower brands to understanding so that they understand what IP is and that

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they can actually integrate some of these tools in their businesses to help

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them just stay protected and profit.

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Yeah, that's really so important nowadays.

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So I love all of that and tell us where you're located.

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I am based in New York city and New Jersey.

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I am a New York and a New Jersey attorney, but the great thing about intellectual

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property rights is that you can practice federally because it's federal law.

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So I serve as clients all in all 50 states.

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Okay.

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That is amazing.

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I love that because there's definitely people all over that are

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starting new businesses that are launching podcasts that are creating

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membership sites and courses.

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And this is important information that they all need to know.

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But before we dive into all of that, I want to dig a little bit deeper.

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I want to know, when you first thought about, okay, I want to

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become a lawyer when I grow up.

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When was that?

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Like, how old were you?

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Do you remember that?

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It's like the most cliche story that every lawyer gives, right?

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Like, oh, someone in your family, you said you like to talk and you like to argue.

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And so you'd make a good lawyer.

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But actually even though they said that there was a point in my career where.

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In school.

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I wanted to do the nonprofit route.

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I thought I was going to work for a nonprofit organization and help that way.

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But then I realized, you know, you can actually get a lot done.

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And I, there was just so much more opportunity if I

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decided to go to law school.

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So I ended up exploring that route.

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I thought I was going to do public interest in wall school,

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but then I fell in love with.

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Concept and this legal thing called intellectual property

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law, which I had no idea existed.

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And I just knew it was the future.

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I knew it was a way to actually help people and help businesses and creatives.

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So I dove right in and I I've been an IP lawyer since.

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Awesome.

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And what do you love about what you do?

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I really like working with the businesses and the creatives.

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So I have clients that are all the way from fortune 500

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companies to solo preneurs.

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Right.

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I advise pretty much anyone and everyone on intellectual property issues.

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But what I really like is when clients come to me and they say, okay, here's,

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here's what we're thinking about.

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Here's what we're about to launch.

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And they just brain dump on me and I get to tell them, okay, here's your IP?

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And here are all the little tools and the things that you can use

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really to protect not only to protect your business, but to make money.

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I think that's a huge point for businesses is that you can start monetizing a

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lot of your intellectual property if you do it the right way and use

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lawyers as more as business partners and strategists than just necessary.

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I love that, use them as business partners and strategists, because I think,

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that's the thing, it's how you view your attorney and they are there to help you.

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They're there to protect you.

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And, I think one of the mistakes that I see a lot of people make is.

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They don't go to an attorney soon enough and they wait and then when

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there's an issue, then they go to an attorney and then by then the

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issue is become a bigger issue.

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Right.

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And then it's harder to fix that.

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It probably is going to end up costing them more money.

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So what advice do you have to, creatives that are starting out and they're,

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creating different brands and they're creating, you know, even things like

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a logo that they want to protect and content and all different, various

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types of things, even their brand name.

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Yes, is the cost of doing business.

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If you are going to be a creator, if you're going to start monetizing

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things, everyone needs to just budget these things early.

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And you don't have to register for everything.

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I think that's like one of the things that I really focus on with clients.

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I understand everyone has a budget.

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I don't care if you're a million dollar business, you know, it's, it's not

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always feasible to file for everything and try to protect everything.

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So I work with clients on figuring out what's the most

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important trademarks register.

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What's the most.

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Copyright to register and it looks the most important

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contract piece to get in place.

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Those three things are typically the most important.

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You may have patents and trade secrets also, but generally speaking, most

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businesses have those three things.

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And so, you know, I hear clients say, yeah, but to register, it's going to

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cost me tens of thousands of dollars.

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That's not true.

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I mean, maybe if you're using the wrong lawyer, but for these things,

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I like to talk numbers, just to give people an honest example, like my

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firm, we offer a flat fee it's 1250.

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That includes the government fee of three 50.

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Like that number.

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You're going to have people who are going to do more and you're

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definitely not people who do it less.

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I want entrepreneurs and businesses to understand that

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like that 1250 is going to be.

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So much farther down the road, then God forbid getting into a litigation

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where a law firm, isn't going to be able to refuse that you, unless they get a

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retainer of about $2,000 on average.

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Budget it as the cost of doing business and file for these things early.

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That can make a big difference.

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And I think, it's about budgeting, but it's also about

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doing your homework early on.

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And one of the things I like to tell content creators is, before

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you even go to an attorney, there are certain things that you should do.

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So I say, go to Google, look at social media accounts and see

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if someone's using that name.

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See if they have a Facebook page, a LinkedIn professional page, Instagram

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account tech talk account, all of those things, because if the name that you want

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to use, you're seeing that it's already being used on social media handles.

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That's already a red flag that you may or may not be able to use it.

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And I say may or may not be.

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That's when a lawyer comes in and they can be helpful.

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But then the second step is you want to look, go to bluehost.com.

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You want to check and see if the domain for your business name

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that you want to use is available.

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And if it's not available, is there a live website on it?

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Is it just that someone purchased it?

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Maybe they're purchasing it.

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Selling it.

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So you have to look at all of these things, right?

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And then they would go to the official site, which I'm going to have you

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talk about Francesca, where they go and do their initial search.

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You, you hit some of the major ones because rights in the

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United States are based on use.

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So we're definitely going to check the register.

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We're going to check to see who's registered.

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You go to USPS, pto.gov, but that step is not enough for two.

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One that search is very basic.

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It's only gonna, they don't have like a great, it's not a very user-friendly.

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Format anyway, but it will only pull up really identical marks

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or nearly identical marks.

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Like if there's a space, it's not going to pull up phonetic differences or close

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variants, that'll still be an obstacle to your registration and everything that

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dimple you just mentioned is great too.

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Because if even if someone doesn't have a registration, they could

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still have rights based on.

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So if someone's already using the name for a podcast or on an Instagram

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account, and it's overlapping in your space, that's a problem.

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So definitely do those things.

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They're easy tools.

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I do them because I have my own trademarks, right.

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Just because I help clients.

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I'm also a business owner and entrepreneur, so I have my own

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trademarks and that's the first thing I do is I check Google.

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I go to USP Tio just to make sure no one has the name before I actually.

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And then let's say that they've, had initial conversation with an attorney

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and the attorney says, okay, you can use this what's the next step.

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So I would say that the first step really is to do what you said

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quick and dirty do it yourself.

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And then you come to the lawyer, we will run.

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What's called a preliminary search.

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So it's going to be a search that is very high level.

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It's dead hits exact marks or close, very close similarities.

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And it's the same thing for the goods and services.

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And also they should start using that, to you.

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Because they're going to have to show proof of that when

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they follow her application.

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Right.

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Can you talk about that a little bit?

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Definitely.

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Okay.

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So the TM symbols, and not as like a great tool to use what it

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is it's called a notice symbol.

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So it's putting people on notice saying that, Hey, I'm using this as a

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although it's not registered because a TM doesn't mean it's registered,

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I'm claiming rights to this.

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So whether or not you have a pending application or you just haven't

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registered, this is telling the world, Hey, back off, this is my mark.

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The only downside to having common law rights.

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And this is really important.

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there is a huge difference between.

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Non-registered trademarks and registered trademarks.

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And this is why I'm here.

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This is why I'm all over the internet.

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Like this one.

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If you get this one takeaway, please unregistered rights are very limited.

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They are limited rights.

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They are limited to the geographic region where you operate.

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So, what does that even mean for online businesses and content

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creators that are online?

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Basically, the law was created a long time ago when it was feasible for you to

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have a business in California and another business in New York, and then not have

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any confusion, but that has changed we're in the internet age or in the digital age.

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You really should register your names because with the registration,

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it gives you a presumption of rights and all 50 states.

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That's huge.

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That is huge.

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And I think now that you know, a lot of brands, they're not just doing

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business in one state, they have clients all over the United States.

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They travel to conferences.

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They make connections with people.

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They start working on projects for different people and, even freelance

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artists, graphic designers, they are.

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Doing work for so many different people.

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Right.

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And it can be all over the U S but it could even be globally.

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Right.

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And I think that's one really important factor to be aware of that you shared.

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So thank you for sharing that.

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Let's talk a little bit about, what the process is like, do you have a

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process that you like to go through?

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With a client, let's talk about trademarks right now.

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And then maybe we can talk a little bit about copyrights as well.

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Like when it comes to trademarks, especially for let's say a business

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name, because I think that's the most common trademark that people

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are probably coming to you for.

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Right.

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Yeah, it'll it'll depend.

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It is it's.

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I would say it's the most traditional, but I also do a lot of like clearance

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and filings for podcasts, names, titles anything that you're really liked using

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as a, maybe as a slogan or new logo.

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So it really could be any of those things, but when you're dealing with

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smaller businesses that are just starting,

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it's usually the most important name is the corporate name.

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Correct?

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So I try to do it as streamlined as possible.

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I offer a free 15 minute call, which is really like a strategy call.

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That's how I would equate it to figuring out what's the most important trademark.

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What's your most important copyright?

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And do you need a contract?

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And then clients may say, well, I only have the budget for one of those.

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It's typically the trademark that's the most important.

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So we'll go ahead and actually file for that.

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That's really how, like the process starts.

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I need to get on the phone and help advise.

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Yeah, I think, yeah, you definitely have to gather more information and, see

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what it is that their intent is like, what did they want in terms of protection?

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How are they going to be using that particular name?

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Where are they going to be using it?

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Because again, there's also different classifications, on the application.

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And it's not just one classification.

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I think people.

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Miss that part too.

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They don't realize oh, well, which class do I need to be in?

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And how do I even go about determining that that's a whole other can of worms.

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Right.

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So how do you educate, your clients on that?

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That's the part where people think, oh, trademark filings are so easy.

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I'm just going to put in my mark and put in what I am doing, but there is an entire

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body of law and it's very technical.

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It's very specific as to what goods and services you're offering.

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Goods are a little bit easier.

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Sometimes you can just describe the product, but even then the

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government has specific requirements.

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For example, clothing you need, you can just file for clothing.

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You can't just file for clothing.

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You have to be extremely specific.

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They want to know what kind of clothing articles.

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So for me, someone who's experienced in the fashion industry, working

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on these types of applications, I know the tips and tricks.

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I know that they won't accept clothing, but they will accept

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clothing, comma, namely tops.

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And that's pretty broad.

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Like if you can get all your tops and all your bottoms, that's a

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little trick if you're taking notes.

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What's really technical is when you get into the services.

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I think I, this is where I see clients mess up all the time.

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Like they'll have content accounts and they'll be podcasters.

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And then they file for some reason for the advertising and marketing services.

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But the government literally sees advertising and marketing services

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as like, as if you were an ad agency.

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So, not only did you just waste $350, but you wasted now six to nine months

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because the government is so behind.

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So getting those specifications down are really important.

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And like, when I work with my online coaches, I have this amazing

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template that I base off of that covers all of my basis for all

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the programs that they're doing.

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And then we customize that to each person, but at least I've

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done it enough where I know the main services and where they fall.

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Like that's another thing.

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Dimple.

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Some trademark lawyers may have no idea what an online coach

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is or what these programs are.

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And if, if you get the wrong lawyer, you may not have someone that

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understands your business accurately.

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Describe these.

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Yeah, that is very true.

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And then it turns into a big mess that, they're going to have to fix.

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It's going to cost them more money, more time and money and time are valuable.

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Right.

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So, thank you for sharing that.

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Let's talk a little bit about copyrights too, because copyrights are so important.

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And I think they're not, super complicated, but I think people

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just fail to even utilize them because they don't know.

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That it's something available to protect their content.

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I dunno.

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I mean, you tell me why do you think people don't utilize them as much?

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I think it's a lack of knowledge.

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I really, I speak to online coaches and I'm on clubhouse.

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And I talk about these three pillars.

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The trademark protects the name, copyright protects the content are your programs,

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your courses, and the contract piece protects you and the relationship with

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your clients or who you're hiring.

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And people are like, wait, I can protect.

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My videos and my courses and my programs like, yes, you can do

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it without just having the name.

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The name is important, but you can literally protect the

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content itself of the copyright.

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And then on top of it, if you have the right contract language, you can protect

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yourself from copy cats who you're dealing with, which unfortunately happens

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a lot with coaches that their clients don't really know, or maybe they do it.

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Borderline intentionally and they actually start taking stuff.

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So with the copyright, you're protected with your content.

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And it also is like an extra level of protection against people you're doing

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business with when you have the contract.

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But I think it's that people don't know.

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And if anyone's interested in protecting your creative

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works reach out to me because.

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It's an important aspect and it's not as easy as people think.

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Like one huge myth that I keep seeing is people think that they can publish

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everything, meaning put it out to the public, let their customers have it,

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and then file one application for every.

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And most of the time they can't, if we can file everything before it's

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published, this is like a huge tip.

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That's permitted within the law, as long as you're working with

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a lawyer to help advise you.

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But that's like a strategy I use with clients, like give me everything before

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it's published and let's try under the law to package it in a way, if we can

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under one application, otherwise you're going to have to file for each video.

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If they were uploaded on different days and it gets really expensive.

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Yeah, like when you think about some of the common things that people

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are creating, they're creating membership sites and a membership

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site can have, 20, 30, 40, 50 videos.

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Right.

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And that's also like one of the things that I've seen most,

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some people buy a membership into courses, justice deal, and rip off other people's

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courses, which has become a big issue.

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And even though it benefits them from having that copyright protection, when

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that happens to them, what can they do?

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Because sometimes I feel like there's not a lot that can be.

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Yeah.

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So in the United States, the Supreme court has actually ruled on this.

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And it's really important if you want to enforce your rights, meaning you want to

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Sue, you want to get such Tory damages to, you need to have a copyright registration.

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This is really important.

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You can try to enforce without it.

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And I need to just say that because.

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there's people who are going to be late for your task and that's not right.

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But for the most part, yes, like the Supreme court has said

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to enforce to get into courts.

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You need to have a registration.

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So equivalent is, let's say you send a threatening letter saying

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you're infringing all of my.

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I want you to stop.

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If you don't have that cop, that copyright registration number, it's

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the equivalent of waving an empty gun.

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Like what are you going to do?

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Sue me?

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Ha so that's really like savvy people.

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If you get demand letters and there's no, there's no registration number.

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You can just say, until you show me your registration, then go.

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There's also like timelines that deal with it.

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So if you find out about the infringement and you file there's a clock that

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starts, it gets pretty technical.

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So the point being like, I don't want to get into the legal analysis.

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I try to give tips to people in the most practical sense,

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register your stuff early.

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And people say what?

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Francesca.

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I have all of these things and I have all of this content.

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Figure out what's your baby?

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Like what is the core assets?

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What holds your method, the stuff and the genius that you've created, that you

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would be devastated if someone stole, figure out what that is, and then file the

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application for that, whether it's your video or or a book or slides, PowerPoint

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slides, like let's figure it out.

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Talk to talk to an IP lawyer, talk to someone, does copyrights

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like me and figure out that true.

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And before someone even comes to you.

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Right.

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So that, because they are, they're going to be paying for their time.

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And you know, your time's valuable, like before they even come to you, what are

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some things they can do to be prepared for the meeting when they have that meeting

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with you, whether it's pertaining to trademarks or copyrights or volts, but

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just in general, like what are some things that they can work on so that when they

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get on that phone call with you, it is a most productive use of everyone's time.

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You know what I think for copyright, it doesn't matter.

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It doesn't matter the stage, like if you're in early great.

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Cause I can help tell you how to build it.

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And then if you're.

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Later, like about to launch that's okay too.

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I'll have everything to look at and figure out how to package it.

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I think the most important thing is just getting on the phone.

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So I do that free 15 minute strategy call.

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It doesn't really give me time to dig in deep.

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And so what I do dimple is I do, what's called an IP

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audit where I have businesses.

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They brain dump on me.

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They send me all their websites, their social media pages, maybe their access

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codes to their membership pages, whatever content or business that they have.

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I look at everything and I say, okay, here.

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And I give them like a document of this.

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Here's all the trademarks that I've seen that you have.

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Here's all your potential copyrights.

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Are you using the copyright symbols?

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I kind of go through that checklist to see if what they're doing and how.

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Attempting to protect their IP.

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Maybe they don't know it, or maybe they do.

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And then a contract checklist, do you have your client agreement?

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Do you have an agreement with your clients when they purchase your services?

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Are you hiring independent contractors and do you have those contracts?

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So that's just like a super high level strategy call and I call it

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the audit, but at the end of it, we get an IP roadmap where I say.

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We're going to do your trademark, which is this, this one's the most important.

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And we talk through it and figure that out.

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We're going to file for this copyright, which is the most important.

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And then in that flat fee, they get all the legal analysis.

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So I'm going to work with them on, on a non hourly basis.

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To figure out how to compile all the stuff into that one application.

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And then we do the contract stuff, but that's really how it works

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is you get on the phone with me or another copyright lawyer.

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I do the audit to brain dump and strategize, and then we

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figure out how to put everything together as bundled as possible.

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If we can to save you money.

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Wonderful.

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Wonderful.

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Okay.

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One last question.

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And then I'm going to see what final thoughts you

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have because of the pandemic.

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Have you noticed, like, there's been , a delay in terms of the

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applications getting processed?

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Like, is it taking a lot longer?

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How much longer is it taking?

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Yeah, there's definitely delay, but I had.

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Any direct correlation with COVID.

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If there is a correlation it's because more people are online, more

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people are listening and becoming empowered and either want side hustles

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or they're realizing now that IP.

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Is everything.

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That's also one of my trademarks, IPS, everything like I do these

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programs around it because we're moving into the digital age.

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I mean, dimple your brand name, your podcast, name,

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everything that you're doing.

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All of these recordings, this is your intellectual property.

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You own this whether or not you want to monetize them, license them.

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We can all create.

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An extreme amount of wealth really by using intellectual property.

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So this is not going away.

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I think people are becoming more and more aware of it, but the reason for

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the backlog, I think is part because more people are just registering.

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Also, Amazon has a program that my firm is a part of.

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So we're part of the IP accelerator program.

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And Amazon requires.

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Certain brands to have registrations to enforce on their platforms.

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That's another huge point, guys.

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Most of these platforms to enforce your rights, meaning to

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get other people, to stop using you need to have a registration.

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And then Amazon has this program called the IP accelerator where you can get on

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with an application, which is way early.

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If you use one of the firms and my firms, one of them, so huge backlog, don't

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waste your time trying to do it yourself, just work with a lawyer, get it done the

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right way and get legal advice because you're not going to find out for six to

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nine months on the trademark register.

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If there's something wrong.

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Yeah, that's important.

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And then if there is something wrong and you try to do it yourself, you're just out

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of luck because now you've lost that time.

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And you're going to have to start basically from scratch with an attorney,

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such as go to the attorney from the get, go and do it the right way.

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That's great advice and Francesca.

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If you have a Calendly link, you can send that to me and I will link it in

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the show notes, but tell us how people can get ahold of you, where they can

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find you, how they can connect with you.

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The best is to go on Instagram.

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I'm at the trademark attorney.

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I'm clicking the link in my bio.

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I do offer that free 15 minute IP strategy call and that takes you to my

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Calendly and I'm happy to chat and help.

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Wonderful.

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Thank you so much for being a guest today.

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And this is amazing and I will see you later.

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Thank you.

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bye.

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Bye.

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Thank you for listening to the mesmerizing marketing podcast.

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So you don't ever miss an episode and also share it with your friends.

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Dimple would be so grateful.

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If you could take a minute to leave a review and visit the podcast website,

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to check out all the latest episodes.

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At www.mesmerizingmarketingpodcast.com that's www.mesmerizingmarketingpodcast.com

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and follow a dimple on clubhouse.

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Her handle is marketing expert and also join her mesmerizing marketing

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club also on clubhouse for live rooms on top marketing strategies for

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entrepreneurs and business owners who want to mesmerize their marketing.

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Mesmerizing Marketing™
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Mesmerizing Marketing™ Podcast talks about the latest and most innovative marketing strategies, apps and brings actionable tips and strategies that you can implement to take your business to the next level.
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Dimple Dang

Dimple Dang is a passionate marketing expert that helps law firms, doctors, entrepreneurs, and small businesses take their marketing to the next level. Dimple is the Host of “Mesmerizing Marketing” and the founder of the “Reels for Lawyers Challenge” Dimple is skilled at SEO, WordPress website design, content creation, blogging, and Instagram. Dimple is also a contributing editor for “Attorney-at-Law” magazine and writes articles on online marketing and social media for the legal industry. Dimple is the founder of the “Lawyers Mastermind” club on Clubhouse and the “Mesmerizing Marketing™” club on Clubhouse. Dimple has an extensive sales and marketing background and has sold over a million dollars in PPC marketing when she was working for a nationwide marketing firm. Dimple is a professional speaker and hosts her own rooms on the Clubhouse on a regular basis. To connect with Dimple on Clubhouse, search for her by name or the handle @marketingexpert.