Guts, Grit & Great Business Podcast Uncategorized
October 26th, 2021
Questions at the Intersection of Law & Business
Join me on my most recent Ask Me Anything LIVE, a conversation hosted monthly for members of my list, where I answer questions at the intersection of law and business.
In this recent conversation we cover a wide variety of topics and questions, ranging from trademarks and copyright questions, to business formation issues, cybersquatting, .
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Biggest takeaways (or quotes) you don’t want to miss:
- Trademark registration protects what’s at the top of your brand or business “mountain”.
- Is Legal Zoom worth it?
- The two things you need to ensure you have good contracts in place.
- If you’re serious about your business, you have to allocate a certain amount for your legal budget, especially as you build your legal foundation.
- The singular question you should ask yourself if preparing to pursue a trademark registration.
- The importance of trademarks in your business.
Check out these highlights:
- 5:25 The questions I talk about in my Ask Me Anything Lives.
- 10:30 The steps taken in the trademark process and how to get started.
- 16:19 How you can get your domain taken away from you.
- 20:30 What are domain squatters and what is the UDRP?
- 24:09 Sole proprietorship and LLC- when to make the move.
- 42:48 Start with my basic trademark FAQs to get you started. Find those here.
- 54:46 Enforcing a trademark.
- 100:56 Risks to automatically sending a cease & desist to potential infringers.
- 1:12:15 Considerations for multi-member LLCs vs single member LLCs (with description of my joint venture preparation guide)
- 1:20:12 Member managed vs manager-managed LLC.
Links referenced in this episode:
Sample JV Agreement & Preparation Guide can be found here.
Sample (single member) LLC Operating Agreement can be found here.
Get access to my FREE Legal Basics Bootcamp here.
Get access to future Ask Me Anything LIVE sessions here.
Imperfect Show Notes
We are happy to offer these imperfect show notes to make this podcast more accessible to those who are hearing impaired or those who prefer reading over listening. While we would love to offer more polished show notes, we are currently offering an automated transcription (which likely includes errors, but hopefully will still deliver great value), below.
GGGB Intro 0:00
Here’s what you get on today’s episode of Guts, Grit & Great Business™…
Heather Pearce Campbell 0:04
So your brand or your business, think about it like a mountain, right big mountains, snow capped peaks at the top. Trademark registrations protect what’s at the top. This is your business name. This is a brand name. This is a tag line. This is a word or something that you use in conjunction with your business, or a logo. This is what’s visible to the marketplace in regards to brand identity. That’s protectable by trademark registration. So again, word short phrase, tagline, right? It’s much shorter content, or an image like a logo. The copyrights protect the rest of the mountain, that this is the body of your work, your articles, your video content, your website content, your newsletter, your images or infographics that you create to support your education. Maybe it’s a workbook or worksheets that you prepare to go along with your program. Right? This is the body of your work. This is all protectable by copyright registrations.
GGGB Intro 1:08
The adventure of entrepreneurship and building a life and business you love, preferably at the same time is not for the faint of heart. That’s why Heather Pearce Campbell is bringing you a dose of guts, grit and great business stories that will inspire and motivate you to create what you want in your business and life. Welcome to the Guts, Grit & Great Business™ podcast where endurance is required. Now here’s your host, The Legal Website Warrior®, Heather Pearce Campbell.
Heather Pearce Campbell 1:40
Alrighty, welcome. I am Heather Pearce Campbell, The Legal Website Warrior® based in Seattle, Washington. Welcome to another episode of Guts, Grit & Great Business™. I serve online information entrepreneurs throughout the US and around the world. And as you’ll see in today’s episode, I support them with a wide variety of issues at the intersection of law and business. Today’s episode is going to be a little different than episodes in the past. In today’s episode, I’m actually sharing a recent recording of my Ask Me Anything live session. These are monthly sessions that I host. If you are on my list, you receive an invitation and the details to join once a month. It’s like open house for questions at the intersection of law and business. If you are interested in knowing about future sessions, hop over to legalwebsitewarrior.com/askmeanything where you can sign up and get notified as well. You’ll see in today’s episode, that we cover quite a few questions and these asked me anything live sessions. So in today’s session as a sneak preview, we talk about everything from naming considerations for you know naming a business, of course, a program to trademark some essential trademark questions. What does that process look like? Can you obtain a trademark that includes your last name, what is a knockout search as part of that process, etc. So we cover quite a bit on trademarks, we discuss copyrights. Right, we discuss some business formation issues, especially in regards to LLCs. We talk about cybersquatting. And what happens if somebody is cybersquatting, a domain that infringes your registered mark, we talk about ei ns, and common law trademarks, we talk about the difference between the supplemental and the principal trademark register. Here in the US, we talk about your obligations for pursuing infringement of your mark Once you have registered mark. We also discuss considerations for multi member versus single member LLCs. And things that are essential for a business contract to be adequate. Right so the list is long and we cover quite a bit I hope you’ll stick around and join us for today’s episode. Which again is my recent Ask Me Anything live? So welcome. All right, welcome to another Ask Me Anything live? This is for today, October 11. Are we already? 11th? Yes, October 11. So how can I support you?
Oh, crazy. It’s been one of those days. Oh, shoot.
Heather Pearce Campbell 4:55
I’m sorry. Yeah, sometimes Mondays go like that. I learned that my kids are out of Today I did not properly calendar that so I have two little people upstairs and I’ll just see. Five Cool. Alright, if you have a question, you’re welcome to just pipe up. I’m also going to open the chat that way, if anybody joins partway through I have the chat open and can pay attention to questions.
There are any kind of like specific types of questions we can ask any?
Heather Pearce Campbell 5:25
Absolutely anything. So I tell people like I’m open to any questions at the intersection of law and business. So what that means is it could be online business questions, it could be intellectual property questions, it could be about launching new content into the world, it could be business formation questions, right. So the reality is, I’ve built my practice to support a very specific kind of client. These are folks in the online space, who are information entrepreneurs, coaches, consultants, online educators, and experts. That includes speakers and authors. And so there’s a wide range of business very well, it’s a narrow niche, but a wide range of topics that we cover within that niche, right. So I don’t help big businesses, I don’t help brick and mortar businesses, some of my clients do have kind of a brick and mortar presence, depending on what they’re up to, but most live in what I call the information space. So yeah, I get a very wide range of questions. Jill, and Marsha. Do you guys have specific questions for me? And I do, actually. Good.
So thank you, for the email, and I, I’ve got my I got your consulting agreement going. Have not had to use it yet, but hopefully soon. And so my other question, which I meant to dig into your stuff, because I know I saw it somewhere, is I’m changing my business name. And I did a little bit of research into is it called?
Heather Pearce Campbell 7:00
Yeah, trademarking, like getting a trademark registration. Yeah.
And there was some kind of a check that I went through to make sure that that name was a use. And I saw some similar ones and what they had done anyway, I’m not sure what I need to do to make sure I can legally use it. I’m not real worried about somebody else taking it because it uses my last name. And such that I don’t think it’s a problem. But I want to make sure I do whatever due diligence I need to do. And I think you mentioned you work with somebody who does that.
Heather Pearce Campbell 7:33
Yeah. So I actually do trademark registrations through my office. So we do those here. I also am happy to provide referrals depending on what people need. Now, Marsha, you’re US based, right? Yes, yeah. Okay. I’m in Colorado. Okay, great. Sorry. I’m just listening for my kids. We have a for people. Larissa, welcome to the call. Got kiddos home today, which was a surprise to me. So, Marsha, the question about naming something. And this is good for anybody on the call, or anybody that watches this recording later. People often like that’s actually the stage where they make a misstep, right. Because once you’re in business for a while, or you’ve been using a name for a while, it can be hard to go unwind that and fix it. So it’s a great time to be asking that question. Naming can be tricky. And because people often don’t do the searches necessary to actually figure out that they either clearly are clearly are not infringing somebody else’s work or phrase or whatever. So whether you’re naming your business, whether you’re naming a signature course, or program, whether you’re naming a product, whatever it is, even using a like a tagline in your business, right, selecting a phrase that you use pretty consistently in your business, I just went through an international trademark battle with a client, we ended up having to purchase the mark from the company based in the US because of that international use in order to resolve that scenario. So he chose a phrase had been using it in Canada did not have the rights to it in the US, but hadn’t researched it in advance. Right. So that’s something that doing a little research can save you a lot of heartache down the road. You want to spend some time on Google, Google the use of the specific word or phrase that you’re looking at Marcia, it sounds like in your instance, you’re including your last name as part of that. Yeah. Yeah. So look around and just see what other uses and and in addition to the exact phrase itself, you want to search potential variations of the phrase, right. So let’s say you have a word that has, you know, different formats, ing versus Edie, right? Search variations of the phrase to make sure that there’s not some slight variation out there that’s being used. That didn’t come up in your search. So step number one, spend some time on Google. Step number two search variations of the phrase as many as you can think of to, to try to understand the marketplace. And welcome to Leo, we are talking about how to provide, you know how to complete proper searches when you’re getting ready to either name, a business name, a program name, of course, etc. And then step three Marsha is to go to the uspto.gov. Right, so I’m just going to pop this uspto.gov.
And then a chat. That’s what I did. Uh huh.
Heather Pearce Campbell 10:33
And you’re going to start to test they have a basic trademark search, they’re called test, a trademark database. And so you get into test and run a basic search of tests, using the same principles, the phrase that you are seeking to use, as well as variations of the phrase. Okay, so that, you know, while I can’t say that, that will absolutely clear you, that will be some additional steps that you can take that a lot of people don’t take that, you know, they might use Google a little bit or whatever. But if they’ve already been using something for a while, some people don’t even go search it. So it’s kind of crazy how often people get themselves in trouble in this regard. So those would be the kind of the minimum steps I would encourage somebody to take at the naming stage. Now the next question of whether or not you’re able to get a registered trademark around it, if you were to hire somebody like me, we do what’s called a knockout cert, which is kind of the initial clearance search that looks at the marketplace for you, it’s part of the fee, we don’t do a trademark registration without doing this search. But if we do this search, some people will hire us to do this search on its own. It’s a $300 fee. But it’s just part of the trademark registration fee, which in my office starts at 1497 for a single class, single mark registration. So for example, you know, you have one phrase or tagline that you’re using, or one signature program or product name, that would be 1497. For a single class. Now, most of my clients, we can cover a huge, like a tremendous portion of their work within one class. Some of them, they’ve got really, you know, either big businesses or thriving businesses, or they’re doing a variety of things in relation to that mark, or that a phrase, we might need to get up to four classes of coverage for them. So there is some difference, like a fee range, depending on how many filings because the USPTO charges a $250 fee per class. So a single class would just be an additional $250, to cover that filing fee to the USPTO. But if you had to, you know, get coverage across four classes, that filing fee could go up to $1,000 with the USPTO. And then there’s a slight bump up in my fees to cover the initial search to cover the creation of the language that goes into each category. Because you not only have to choose appropriate categories, you have to put a description in there, that appropriately covers your services and gives gives you room to grow. So it’s a little bit of this nuance kind of dance in the beginning to make sure that you know, that’s all done appropriately. And then it’s a 12 to 18 month process where you can have Office actions, you can get additional requests from the USPTO for either other information, a corrected specimen, any variety of things. And so we walk you through that 12 to 18 month process and get you to the end of that hopefully with a valid registration. The other part about using your last name, you cannot always obtain a trademark registration that includes a surname. And the reason being is because you can’t prevent other Chadli out there from using Chadli and conduction in conjunction with their business. Right. So the question then becomes is the surname kind of like the key pivotal part of that phrase? Is it really that you’re using Chadli? Because it’s a name, you you could be precluded from getting a registration or a mark that includes a surname if the surname is kind of the point. Okay,
So mostly, I think I’m mostly just wanting to make sure what I do doesn’t conflict with somebody else.
Heather Pearce Campbell 14:25
So do those initial searches, and that’ll be a great step towards making sure that you are not, you know, infringing on somebody…
Okay, so far, I haven’t found that. Okay, good. And so then do I want to do the knockout search on top of that, and make sure that I’m a okay. Yeah, cuz I’m not sure that I want to spend that $1,500 Right now, especially if I’m able to trademark it because it’s my name I’m not so worried about.
Heather Pearce Campbell 14:57
Yeah, yeah. Yeah, it’s you know, it’s It’s often a budgetary decision and how much support somebody wants in relation to each step. Right. So, yeah, you may just have to think about it for a bit, you could spend a bit more time, you know, if you haven’t run searches that include some of the variations on all that. You could look around and just see and then decide how comfortable you feel based on what you’re seeing. Okay.
Okay, thank you
Heather Pearce Campbell 15:21
Great question. All right. Welcome to Jill and to Nolan, Nolan. Thank you for putting your name in there. And Larissa and Leo, who, who next has a question. Awesome. Jill,
I just want to continue on with the naming thing, and just ask you specifically, because I, when I started my business, the person that was helping me, had me do you know, a website, name search, but not any, not a Google search. And I did pick a name that somebody else had, that was in my similar niche. And so every once in a while, I get a call from somebody wanting their services, they don’t want my services. And so I’ve just kind of gotten away from even saying my name, or, you know, putting it on my label or anything that I had originally picked, can I just kind of let that go and just not ever use it anymore? Or do I need to do something specific?
Heather Pearce Campbell 16:19
That’s a great question. So a lot of people end up in that boat, they think, Oh, the domains available, this must mean it’s okay to use, right. And it’s it. That’s unfortunately, not how it works. So you can actually have a domain taken away from you, if somebody owns the registered mark, that includes the word or phrase that you’re using in your domain.
So since then, I don’t even use that domain anymore. I think I let a modifier and I have a new domain. Okay, my name, but now I need to go back and do what you’re just telling. Right? Go through the ad. Name? Yeah.
Heather Pearce Campbell 16:54
Well, and in regards to letting that other one go, what you’re gonna want to do is, you know, comb through your online and offline content, make sure that references to that name are removed. If you know, if people are still finding you, you’re going to want to ask them, How did you find me? So that, you know, do you need to go update records on Google? Do you need to go is there some back end page on your website that you forgot about is, you know, to mean, like, Where, where is the reference existing, that they’re still searching that name and finding your business. So you’ve obviously got some more cleanup to do as far as where your content is showing up online? Maybe it’s a third party that cached your information on their website put you in a directory or referral link or something else. And so your content could actually be living somewhere else on a third party site, you’re gonna want to try to ask questions, if people are still finding you, when they search out of their business. Ask them, how do they find you, that may help you be able to clean it up. And then certainly, if you there are ways you know, using Google, so for example, if you have an address that you can associate with Google business, like Google location, you can submit that information along with you know, the name of your business, or whatever else, and it will help kind of clean up some of those records online. Right, but it doesn’t always work. Well, for people that have a strictly online business and no physical location, it can be a little bit tricky to figure that one out, unless you have, you know, a rented mailbox that allows you to actually use a physical address and not a PEO address of PO box because they don’t allow Pio boxes for the physical location. So you just you know, you might have to do kind of some sleuthing around but the other thing is just to make sure that, you know, your social media is updated, your website itself is updated, any old records or old content are cleaned up? And then yeah, in regards to the new name, making sure you go through the process of you know, making sure that nothing else exists out there that that either you can be infringing on or, you know, depending on your strategy, if it’s something that you want to register a trademark for whatever doing some of the legwork in advance before you go all the way down that road.
I had a question. Mm hmm.
Heather Pearce Campbell 19:16
And really quick, let me just check in with Jill to make sure that that answered it for her.
First of all, Heather, you look too young to be a lawyer.
Heather Pearce Campbell 19:31
Thank you. I will take it and would you believe I’ve been practicing for oh my gosh, 20 years.
Oh my god. I know what crazy. Yeah, you look like you’re 21. My question is along the same lines, but almost in the opposite vein, so Okay. He had a name. We were definitely the first ones to use Is the name. And I’ve been using it for a long time. And we’ve been using it in commerce. And I’ve trademarked a lot of names in the past. When we finally decided to get the domain, we found someone else had it. And we’ve been following it tracking it for years. It’s just somebody sitting on it forever and ever.
Heather Pearce Campbell 20:20
Were they not using it? It could be nobody’s using it. So it’s an empty domain, they don’t have content up.
So you know, it’s, it’s what I call a hoarder of domains.
Participant 20:40 Yeah, they’re actually called squatters. So they’re domain squatters. They can be trademark squatters as well. So with a domain squatter, you can use what’s called the UDRP. I’m just going to type it into the chat. Yeah, hmm. Uniform don’t domain let me see dispute or uniform domain dispute resolution process, I think is what it stands for. You can just Google it UDRP, maybe I have the uniform domain name. So there’s a name in their uniform domain name dispute resolution policy. So it’s very close. So the UDRP is a process established by the Internet Corporation for Assigned Names, right? I can, I can. And it resolves disputes, including internationally for situations like this, where you have a domain squatter, now, it does cost money to go through the process, right, you might have to pay a, you know, a filing fee, I can’t remember what it is, it’s not free. But there is an automated process where certain bodies of certain regulators are allowed to walk people through this process, and they will actually end up transferring the name over to the registered trademark holder.
Participant 21:47 Now an attorney like yourself that has dealt in this business for a long time. I’ve been told, and I used to know some heavy duty people in this space many years ago, I’ve been told that it’s very, you know, kind of, you know, good, good old boys, kind of kind of group, even though it’s international, and that a lot of them stick together a lot of these domain resellers, especially the big ones, they you know, the the Heavy Duty players, and that a lot of times it’s almost useless to to fight it. You know, like, for instance, if the person is squat in our domain owns, you know, 500,000 domains, and they’re just a heavy duty reseller auctioneer, etc.
Heather Pearce Campbell 22:35
I don’t know, I haven’t been specifically through the UDRP process enough to be able to say whether that’s true or not, I do know, people who have successfully used it, right. And I do know, attorneys that do these, these processes, specifically, frequently. So you know, I, I personally hate allowing bullies to be bullies. And so it bothers me, I always think that, you know, if, if it is really valuable to your business to have that particular asset, it is probably worth what it takes to try to go get it. And to enforce some of the rules that are out there, which you know, is the whole reason they’re out there is to protect businesses, including small businesses, and anybody that has legal rights to a name to be able to enforce those. And I just want to say welcome to Sherry And Sandy as well. We’re talking a little bit about domain squatting at the moment. What do you do in the circumstance that somebody else has a domain that essentially belongs to your business if you’ve got a registered mark? So yeah, no one I could ask around. I’m also happy to get referrals. Where are you based? San Francisco,
Northern California. The majority of our business is in the San Francisco Bay area, but our kids are actually in the California cool country. Okay. It’s much more beautiful out here.
Heather Pearce Campbell 23:55
Yeah, Northern California is beautiful. But welcome, but glad to see on here today.
I have another question.
Heather Pearce Campbell 24:02
Okay, great. Appreciate that. We’ll circle back around. And another question. Okay, Joe?
Yeah. Um, so I am a sole proprietor. And you were explaining the reasons that it’s a good idea to bow to LLC, or whatever else, but LLC would be my next. What’s the best way to do that? Should I just go on to my state?
Heather Pearce Campbell 24:25
Yeah. So Jill, where are you based?
Heather Pearce Campbell 24:30
Utah. Yeah, so go on to the Utah Secretary of State some states. So like Arizona, for example, is one of those that has an outside commission that does their business formation process. Utah, I’m not sure but I would assume that if you go to the Utah Secretary of State website, they’re going to have corporate formation as a main link there and then you can follow it down to either LLC or whatever it is that you want to create. Some people are totally comfortable doing a DIY process and just filling out the forms themselves. Getting them submitted, there are going to be a couple of other steps to the LLC formation process that you want to be really careful about, because a lot of people will do the first step, which is what you’re talking about filing the initial paperwork with the state so that you get what’s called a Certificate of Formation, right of that LLC, or C Corp, or whatever it is you’ve created. But you also need your LLC operating agreement, right. So that’s a document that you don’t have to file with the state, but you do have to have completed and in place, because if you were to ever be audited, be engaged in litigation, have something come up, that poses a risk to your business, you need to have timely created an LLC Operating Agreement, which is your governance document for the business, a lot of people will miss that step or, you know, put one in place that is wrong or whatever, you have to really treat your business like a business. And that includes forming it properly putting the governance documents in place. And so with an LLC, that’s called an operating agreement. And then you also want to make sure that you go to the next step of getting your F ein also called an EIN, this is your federal employer identification number, and your proper business licenses. So in Washington state, for example, there’s something called a master business license, you get the license with the state first, and then you can get your local licenses. Sometimes those are city, sometimes their county, depending on the business. So you’d want to look and see once you have, you know, your LLC form. And by the way, on my site, I’ll just grab the link, I have got an LLC formation guidance document, right. So a lot of people will grab that and then kind of walk through the process in their individual state, but make sure that they are doing in the right order, and they’ve got all the steps, it’s easy to miss some steps. So that can be found here. I’ve also got something that is called the Business Builder basics bundle. And that is for somebody who is at the process of starting a business like an LLC, and they want a much bigger view around business planning around their legal needs than just the initial formation. It is my least expensive bundle. But it will help you tremendously with your upfront business planning and knowing legally, what comes next, let me just grab the page to my bundles. You’re welcome to check it out there. The reason I mentioned it is because the LLC Formation Document, as well as the LLC operating agreement lives inside that bundle, along with a bunch of other guidance and documentation that will help you in your business planning. So that business builder basics bundle is 497. Significantly less than like, what’s a place like Google, I mean, LegalZoom, or one of the big box places will charge to walk you through a business formation process. So it’s an option, it’s a it’s a great resource, especially if you have some additional business planning to do and you want to
What do you think of those of those Legal Zoom type companies?
Heather Pearce Campbell 28:04
You know, this is the question that I asked. And I’ve worked with a lot of people who have done something through Legal Zoom, and then they have to, you know, hire legal help to fix it. And so, unfortunately for me, I..
that’s almost where we’re at. Yeah, is
Heather Pearce Campbell 28:17
I asked people. Okay, you did that? How do you feel having gone through a Legal Zoom process? Right? Most people have kind of this blank, like, how do I feel? What do you mean? How do I feel like? Do you feel more confident about your business? Do you feel like you got some additional guidance? Do you feel like you’re leading your business any differently than you were before? Mostly, the answer to all of those questions are no, through a place like Legal Zoom. It’s kind of like, well, it’s kind of like, my fingers are crossed. I hope. I hope it works, right? It’s a little bit like I hope the parachute opens on the way down. It’s, no, it’s not because this is the thing is that Legal Zoom is tailored to the world at large. It’s not tailored to a very specific type of client doing a specific type of business. And so for me, I cared a lot about creating resources that were highly targeted to a very specific client. I don’t help big bucks, you know, businesses, I don’t help the big corporations of the world that have a bazillion shareholders. I don’t help businesses that have a massive storefront or brick and mortar presence, like those are not my clients. And so I really cared about creating resources that right out of the box, were going to be a fit for their very specific type of business. So that’s what I’ve created. But, yeah, I really care about creating better leaders, that entrepreneurs that are better leaders of their business because the small entrepreneurs of today have to lead their businesses and just like they have to learn marketing and sales and information technology and business systems that apply to their particular business. They also have to learn a thing or two about legal right legal basics. They don’t have to get a lot agree, but they do need to know how to spot red flags and how to make decisions that are appropriate for their business that have legal impacts. So that’s my goal is to provide just the right education, I tell people a little, the right golden nuggets go a long way right to creating the business that you want, and also protecting the business that you’re building. So that’s my spiel.
I had a former business partner, he saw me so a friend and all but he used, I had created an LLC for another division of the company. Several years back, he went, just went their easy route. He said, I’ll pay this company couple 100 bucks, they’ll create our LLC for us. And it’s been a nightmare. I mean, that’s part of the reason why he’s not my business partner anymore. Because I get telling them, You need to stop payment, you know, you need to call the credit card company, because they, they were supposed to create an operating agreement for us. They were supposed to create all these other agreements, none agreements, but there was several documentation. Yeah, it didn’t do any of it, none of it. So because I had the knowledge I went in, and I at least got the two other it was the I mean, California. So
Heather Pearce Campbell 31:15
You know, the Franchise Tax Board. And
But I mean, it took me a day to get the FBI n number. Yeah. Two, three weeks in a row. They were saying, Oh, we have to do this. We have to, they kept putting it off. Put it on. I just went on there because I remembered from before how easy it was. Yeah.
Heather Pearce Campbell 31:34
Well, that’s what that’s what my you know, my business builder basics bundle, and even my LLC guidance document helps people understand, here’s what you need. Here’s the right order, because it’s really easy. It’s really not that difficult. No, you just need to know what the right steps are right. Okay, let’s pause to hear from today’s sponsor. Today’s episode sponsor is both Pierce law PLLC. Home to my legal practice here in Seattle, Washington, as well as the legal website warrior, and online business and brand dedicated to supporting the legal needs of information entrepreneurs. These include consultants, coaches, online experts, and educators, speakers, authors, industry leaders, influencers, transformational leaders, community builders, podcasters. People in this space go by a variety of titles. But essentially, their businesses look alike. They are building businesses based around a body of work and information that they have created. That gets delivered in a variety of ways, including generally through an online base, the home base in the online space. Thus, my branding, the Legal website, Warrior, I’m dedicated first and foremost to protecting online brands, helping them stay safe, helping them navigate the legal rules that exist and apply to the online world, as well as take care of and protect the offline portion of their businesses as well. There’s so much that these entrepreneurs do in the offline work in their business as well. And there regardless of what you call yourself, regardless of what your business is about, you do not get to the position of scaling and growing and creating the influence that you want in the world and becoming an industry leader without essential legal support. So if you are in the space of information entrepreneurs that I serve, I would invite you to reach out and connect with me, you’re also welcome to check out a free resource that I have built, you can find it at Legal website warrior.com forward slash legal basics boot camp, it is my free legal basics boot camp that I have prepared just for you so that you have the map, what I find and let’s be clear that the traditional legal model tremendously underserved a certain portion of the small business community and that is why I’ve set about to create a set of resources, documentation, education, etc. that supports people in this space. My legal basics, bootcamp is going to walk you through a framework that I developed that helps you understand the roadmap for your legal needs. This way you can stop cherry picking your needs in the dark without the map and start making decisions that have legal ramifications for your business. From the standpoint of being empowered from the standpoint of understanding what your legal priorities are and being able to choose those intentionally and knowing what they’re going to do for you in your business. So connect with me at Legal website warrior.com forward slash legal basics bootcamp where you can get my free resource. You can also find me online at Pierce law circle versus.com, which is just an online space holder for Pierce law PLLC, my legal practice based here in Washington State. Again, congrats on your journey, I’m honored to have intersected your path and be a small part of it through hosting this podcast. And if I can support you in any way, reach out, see me it looks like you’ve got a question. Die, and
I was just trying to get it in before I did the school run. Thank you for the opportunity to ask a question. By the way, I really appreciate it. Oh, really, I was just wondering what you thought in terms of I’m not sure whether it would be trademarking or, you know, or just like a registered name. My area is weight loss. And I used to be based in Barbados, I’m a US citizen now. But I, I lived most of my life in Barbados, and I’ve written two weight loss books. And then I had a program that I taught there for almost 15 years, the flatter stomach program. So I have all the iterations of it. I have, like, you know, the people that did it, what their results were. And I’m now going to be doing it as an online business. So it would be to, to everywhere. I’m based in Florida, and I have, I did set up my LLC, fitness advances,
Participant 36:24 LLC, but I just wondered, what would you have like the name? And it’s not just that because there are other offshoots that I want to do as well?
Heather Pearce Campbell 36:47
Is it a program or course name, what it sounds like, it’d be the name of the program at all,
They would all be like courses, online courses, but then everything because it attracts your client? Yeah. It’s, and you have to put it out there, if you’re going to be, you know, trying to be totally online.
Heather Pearce Campbell 37:06
So you could have benefited actually, from the first portion of this call. We talked a lot about naming notes. Okay. And just FYI, in case we run out of time, I record these they get published on my YouTube channel. So hopefully, in a few days, you can find it there. The, the quick overview about naming is you want to do your research, spend time on Google, you want to go to uspto.gov? I’ll put it in the in the chat again, uspto.gov, after you’ve spent some time on Google Making sure that nobody else already is using that in their business or has the rights to it, if there’s question about rights, and rights generally relate back to first use in commerce, you want to go check uspto.gov Anyways, and search test that is their basic trademark search database. So you want to go spend some time doing lots of searches before you, you know, pin down or finalize a name. Because as we were discussing, just because maybe the domain is available or whatever doesn’t mean that you’re not actually going to be infringing somebody else’s rights. The other thing was naming, especially in the health and nutrition, weight, loss space, etc. Obviously, you’re probably already aware that FTC is our consumer protection watchdog in that space, they care a lot about what we tell people, including through names and our marketing materials. And so, you know, you don’t want to name it something like lose 10 pounds in 10 days, or whatever, like making a statement about an outcome that, that you cannot guarantee for every person that goes through that course, right. So you want to be very careful when you’re selecting a name that you are not, you know, making a promise about the result. And you know, you want to examine your marketing materials very, very closely, because you cannot say something about your own program to be true if it is not true for every person that goes through it.
Okay, so even if you have a track record that you have, like, you know, because I literally have a 98% results rate with past clients, you still can’t.
Heather Pearce Campbell 39:14
So what are what are the results? Like? What would you like, tell me a phrase that you would consider using either in the name
Or well, like a certain amount of inches that they lose, like, to and from in a certain amount of time? And literally they used to measure the area’s?
Heather Pearce Campbell 39:31
Yeah. Well, and it could be that, you know, you say, if you follow the steps, et cetera, this is a very high success rate. If that’s true, I still would be very hesitant to put that into a title like, you know, from 40 to 30 inch waistline in 30 days or whatever.
Yeah, you know, yeah, I wouldn’t have thought you meant that you couldn’t even speak of it in your materials at all.
Heather Pearce Campbell 39:58
Well, you have to be very careful if it is not true for every person. And the challenge in the dietary and nutrition and weight loss field is that you, you know, it’s a little bit like tort law, you have to take your victims as you find them. So let’s say you have somebody that you know, is diabetic or has all these problems and shows up and they’re on medicine, like, you may not be the solution for everyone. It may not work for everyone, right? Of course, of course it won’t. We’re humans and our bodies are also different. But you just want to be very, very careful that if there is something that you are saying about your program, that it applies to everybody. Otherwise, you need need disclaimer. So even if you have one client that says in their testimonial, like, this was life changing, I dropped 30 pounds, blah, blah, you still probably need something that says results cannot be guaranteed these results are not typical, whatever, whatever the scenario is, you have to make sure it’s basically truth in advertising. If you go Google the truth in advertising laws, you’ll start to see exactly what requirements are listed about what you can and can’t say. And the the question always is, is a reasonable consumer allowed to rely on this statement? Right? If somebody is being reasonable? Can they rely on this statement? And if not, you probably shouldn’t be making the statement right? Or, or even have a client make it on on your behalf without appropriate disclaimers?
And just to tell them that. So would you be when you have a name? Would that be a trademark that I’m looking into doing? Or is that a registered thing? You know, with the copyright? Sorry with that question? Yeah, absolutely. And sorry. And the other thing was the US pto.gov. That is just relevant to the US because I’m just wondering if I’m looking at global like the UK and yeah.
Heather Pearce Campbell 41:58
So it is USPTO is just relevant to the US there is another database that that you can search called repo, let me just put it in here. That is international, it’s a little it can be a little trickier for some people to figure out how to search that one. Let me I’m going to pull up an FAQ that I wrote recently for, for trademarks. And I’m going to pop it into the chat so that, you know, time permitting, we can talk a little bit about it.
I guess I should ask you which one is more cost effective to start with until you can whiz bang do the other ones like so. I would want to test the program and make sure it has legs. I mean, something in person does not always transfer online.
Heather Pearce Campbell 42:48
Right, right. No, I absolutely understand that. So here’s the link I was looking for. So these are my trademark FAQs. That’s a great place to start for some basic trademark questions. It’s going to describe the difference between using the TM symbol and when you use the circle R. You’re right that a trademark registration is appropriate for a phrase a name, right a single word, or an image like a logo, right? So you can get trademark registrations around the way the way that I describe it. And welcome to Kim and Glenn and Ron and Sherry, I want to make sure you guys know I see you the chats open as well. But we’ll try to cruise through a few questions. The Sandy think about trademarks as like, I’m not too far from Mount Rainier. Right? So I described your brand or your business, think about it like a mountain, right big mountains, snow capped peaks at the top. trademark registrations protect what’s at the top. This is your business name. This is a brand name. This is a tagline. This is a word or something that you use in conjunction with your business or a logo. This is what’s visible to the marketplace in regards to brand identity. Right? That’s protectable by trademark registration. So again, word short phrase tagline, right? It’s much shorter content, or an image like a logo. The copyrights protect the rest of the mountain, that this is the body of your work, your articles, your video content, your website content, your newsletter, your images or infographics that you create to support your education. Maybe it’s a workbook or worksheets that you prepare to go along with your program. Right this is the body of your work. This is all protectable by copyright registration.
What a great analogy.
Heather Pearce Campbell 44:35
Thank you Nolan. I I know I actually I need to copyright this analogy right when
I was 17 years old. I used to help bands copyright your songs. Oh, nice.
Heather Pearce Campbell 44:45
Yeah, ugly. If you’re a musician, if you’re an artist, this new This is why the copyright system is important.
Yeah, I’m gonna use that if that’s okay with you.
Heather Pearce Campbell 44:58
Yes, please give me credit. I know No, I’ve I will I will personally love this analogy. I don’t hear anybody else using it. So
What I need to look at the world one then or will having it in the US protect me,
Heather Pearce Campbell 45:11
This is a great question. Most people, including my international clients, so I work with have about 80% 50 to 80% of their clientele based in the US. So I say start in the US. The other reason it would make sense is let’s say somebody’s 5050, like, let’s say they’re based in Canada and half of their audience or their databases in Canada, maybe you start in Canada, get the registered mark there, although it takes longer, they have a longer process than the US. But then once you have it, you can you can register for a mark in the US and have actually an expedited process available to you. So there are different strategies depending on primarily, where’s the marketplace? Where are you going to get sales, if, if a huge portion of your audience is going to be US base, I would say start in the US because what happens, especially if you’re a US citizen now is that when you go to get international copyrights, they’re going to look to the US system first. Right? They’re going to say what do you own in the US marketplace, since you’re a US citizen, and then based on that they may or may not give you an international foreign registration,
Hopefully, and the trademark would be the TM, the copyright is the see with the thing. are ours registered?
Heather Pearce Campbell 46:26
Okay. So TM, you use TM, after your phrase, your name, your you know, whatever you’re going to seek a trademark registration for. Once you decide to protect it, once you lay claim to the fact that you’re claiming rights over that phrase, TM puts people on notice that it’s proprietary that you are either seeking protection or you’re about to seek protection of that phrase, are you only use are in my article, the link that I provided there in the chat that will go into more details, you only use our once you have actually obtained the registration. So you do not use our unless you’ve paid the money and you’ve been through the 12 or 18 month process, and you own the rights.
I see I see said the blind man, it would be helpful with this. We could utilize you. If I’m looking at doing the the world one, once up started looking into the US would
Heather Pearce Campbell 47:25
I’d do some initial looking around you’ll you’ll get a bit more educated and you’ll feel more confident in your decision.
Okay, but that’s an area that you would handle if we needed a little bit. Right. Thank you so much. You’re
Heather Pearce Campbell 47:35
Welcome. Sandy, great to connect with you your time. You’re welcome. Okay, great questions. Who’s next? You’re welcome to either unmute or pop a question into the chat. These are all great questions around naming and trademarks and registrations.
Real quick, actually, kind of on what we were talking about. In the in the patent world. I read recently, when it recently a couple years ago, about the ability to be able to create a patent. That is a marketing patent. At least that’s how I read it. At the time I read it. Yeah. Just describe that a little bit.
Heather Pearce Campbell 48:15
Well, and you know, actually, I don’t do patents. So I don’t live in the patent world at all used to be that patents were primarily for machinery mechanics, you could do, in fact, used to be that like even software system. Yeah, that’s what we’re talking about. Yeah, they’ve they’ve moved away from that most software these days is now because it’s code is most protected, most frequently protected by copyright. Yes. And so yeah, many more are switching over to the use of copyright to actually protect that. But for code that is not exposed. So for example, if you have some code that runs, you know, your online web presence or an app, and it’s not exposed to the public, and there are ways that code can be protected from being exposed, right, you would want to protect that through like a trade secret. So through the use of documentation, where for the parties that do have access to that code, they are signing things like non disclosure agreements, confidentiality agreements, etc. Because you would protect it, like a trade secret.
Hallway, how would How would code be exposed?
Heather Pearce Campbell 49:25
Well, there are some ways that you can visit a website and actually obtain the code, you know, behind the code behind the web. Right? So there are ways that you can get access to the code, which is why lots of website Terms and Conditions you’ll see they say like, you are not able to reverse engineer this app and blah, blah, blah, you know, depending on what somebody is getting access to. So there is functionality that can help hide code from public visibility and just depends how your website is constructed, what tools you’re using, etc.
Heather Pearce Campbell 49:59
All right. Good question. Okay, Jill, I think you had another question and welcome tonight.
Sorry mine is really short too so you mentioned the EIN and I got one when I got my sole proprietor do I get a different one when I go to LLC?
Heather Pearce Campbell 50:16
You probably didn’t get one for a sole proprietorship because that usually your unless you are setting up and I guess maybe you did you want to double check your records most often with a sole proprietorship, it’s your personal tax ID that’s used. So you can you can double check that maybe you did, it’s it’s not going to be the same once you create a formal legal entity, you have to have a new one issued for that entity. So what it means is, for example, and it’s usually because it won’t automatically just terminate use on its own. It’s once you have your new entity setup, if you’re no longer five filing documents on behalf of your previous sole proprietorship, right, you’d actually have to go to the IRS and have that previous ein cancelled. Have it terminated. It’s actually just the tax account associated with that ein cancelled. Right? Okay. Okay. And then you would make sure that you provide the new one, which is going to be associated with your newly formed incorporated business. Okay, okay. Yeah, it’s a little bit yeah, you just have to take a couple extra steps. Okay, what other YouTube? Any Oh, Ask Me Anything recordings. Yeah, there aren’t recent ones, because I’m a little overdue to upload. The last few Ask Me Anything lives. A couple of them have been so short that I that I didn’t even end up saving the recordings. But I do have probably three or four that I need to upload. So thank you for your patience with that. We made it through the summer and my VA who is also a mom to three little kids, she’s she’s got three boys. I’ve just got two, but it’s a bit of a juggling act. And there are weeks that sometimes I go with very little support. So thanks for being patient, for those of you that are waiting for the Ask Me Anything live uploads. All right, what additional questions do we have today? Welcome to Diana, I still see Larissa here, Larissa, as always good to see you, Leo and Sherry And Kim Martin, lovely to see you on here, Kim, how can I help and you’re welcome to pop a question into the chat or to just go live if you’ve got a specific question. And I totally understand sometimes we’re in locations where we can’t go live. So I get that too, which is why I do like to open the chat so that for folks that need to ask a question and are not able to be talking about it. Yes, Diana says awesome. No questions. Have you in the calendar for later in the month? That’s right. We’re going to be doing a live session together. So happy to be supporting some new businesses with their website protection package. Cam, did you just unmute?
I did. I just unmuted to just to say hello, I don’t have a question today. But I’m so excited that I was able to make the call today. Yeah, great to see
Heather Pearce Campbell 53:09
Yeah. So well, it was a good call we did lots of and I know you’ve been on several of these calls, lots of talking about naming and trademarks. And some really key topics and business. Larissa said, I just felt called to show up awesome. Larissa, also as part of the upcoming call later in the month, which will be great. And obviously, you know, Diana, and Larissa and anybody else who is doing the website protection package, you can also pop into that Facebook group and get support between now and then. But the live call is going to be super important for tackling anything that’s still hanging out after you walk yourself through the workshop recordings, I think you’ll find the recordings very helpful if you haven’t taken a look at them already. Because there’s quite a variety that’s already in that group that was part of the recording. And some of the questions they ask are exactly the questions that other people going through the course should be, you know, and we don’t always think of every question ourselves. And so there’s a lot of benefit to just paying attention to the other questions that are asked there. Because we end up covering so much great information within the context of that, that recording. So feel like parties
Are in the Facebook group that I just joined this morning.
Heather Pearce Campbell 54:21
That’s right. That’s right. I saw you jumping in there. So you’ll notice that when you click through, especially to the website protection one, there’s also a visual timeline underneath where you can get access to when we cover specific topics. Were in the recording. So if you need to jump ahead, you can I’ve tried to make it as easy as possible. Okay, thanks. All right. And Kim, you said a question just came to mind. What’s your question? Yeah.
So I just thought like so I do have a registered trademark. I’m working on a second one. And my question is when is it’s about enforcement. And so having that when would buy ever or might I mean, if it’s not blatant, you know, stealing my content or something like that? Yeah. Then what I might need to or want to or consider
Heather Pearce Campbell 55:17
Enforcing a trademark? Yeah, that’s a great question. So understand that there’s a timeline associated with when you learn of any infringement, right? So you need to take really careful notes of when you discover somebody and congratulations, by the way, Kim on having two registered marks when you learn of somebody infringing your mark. So let’s say for example, you know, you come up with a phenomenal name for your course or your program, you do all your research, you get the registered mark, you know, it’s yours. And then a few months later, you see that somebody just launched a Facebook group called the name of your program, or they launch an online course that is exactly the same name or very similar, or they launch a website, right? So for example, one of my clients is the creator of the bullet journal, how many businesses around the world do you think have taken the name bullet journal and put it into their website domains? Ridiculous a lot. Yeah. So unfortunately, once you learn of those types of infringement, you do need to document them. And what that looks like is, mostly it’s going to be digital documentation, right? So like, you’re on their website, maybe you’re on their facebook group page or whatever, you’re going to take a screenshot that captures your date and time on your computer, right, that shows up on the upper right. And, you know, if you can get that into the screenshot, and then the content that is infringing on that page, including the web domain, right, you always want the web domain visible within the screenshot as well, so that you’re showing exactly where content showed up on what date. Right. And, you know, and you can also use, you guys have probably heard of the Wayback Machine you there’s lots of ways you can do online research to see how long content has been around. And it’s not perfect, but it’s it’s pretty consistent about logging pages that you know, show up and logging websites that, you know, once it, you know, because it’s basically a web crawler like Google crawls the web, once it hits a site, it will revisit it every so often and log any changes to those pages. So there are ways that you can sometimes retro actively determine when you know, approximately content went live on a certain website, but you want to do your best to actually create an infringement file, label it, date it, drop those screenshots into that file and track the use, like make sure that you’ve done the best you can to document that infringing use. And, you know, there’s a variety of strategies that you can take, once you learn of an infringement, just keep in mind that a clock starts ticking, you’re going to have what’s called a statute of limitations associated with that particular infringement, which means that you can’t sit on it forever. If it is truly infringement, you are going to have to reach out and enforce your rights otherwise, you can end up losing the right to your registration. So what is the statute of limitations? Yeah, it kind of varies, because there are state rules that overlay Federal Registered federal intellectual property rights. And so state, usually, I’m just gonna say generally around three years, could be less could be more, but you don’t want to sit on your rights. And you don’t want to, because the other thing that can happen is if an infringer is aware that you know, of the infringement, right, they can eventually through essentially a stopple saying, Look, you knew and you let me continue to build my business and invest all these resources, and you didn’t do anything to stop me. So you can’t stop me now. Right? Yeah, you don’t want them to be able to make that claim against your business. And so that is the other thing is that once you have a trademark registration, you cannot sit on it. If there are infringers, it’s your duty if you care about keeping that registration alive, to make sure that other people cease inappropriate use of the mark if it’s yours. Now, keep in mind, there’s plenty of people that end up with a mark on the supplemental register. There’s two registers in the United States there is what’s called the principle register and the supplemental register. There are plenty of people that don’t understand, especially if they use a service like Legal Zoom are trademarkia and they end up on the supplemental register, that by very nature of being on the supplemental register, you are presumed not to have exclusive rights to that mark. Oh, wow, the big problem. This is also why I don’t generally recommend some of those quote unquote automated services where you do not actually have an attorney’s eyeballs helping to prepare the application and walking you through the process. So ending up on the supplemental registers generally not a very helpful thing, some people will still go that route, if it means they can at least claim a mark, but you don’t have exclusive use over it in the marketplace. And so I’ve seen plenty of people that don’t understand that and they start reaching out with all these crazy cease and desist trying to get other people to stop use of the mark when they don’t have exclusive rights to it in the first place. So just understand that you need to be really aware of what rights you have, you probably need legal counsel if there is infringement to help assess those rights and understand what is the best strategy to take and getting somebody to cease the use if it is illegal. And the other big risk here is a lot of people will immediately think like, oh, just reach out with a cease and desist? Well, let’s let’s pretend that somebody has local common law rights, you can have common law rights to a trademark based on, you know, previous use. Now, if they’re state based, they’re generally going to be preempted by federal law, if you’ve got a federal registration, but there are carve out some some businesses, if they’ve been around longer than you and they have local rights to something, you’re not going to be able to get them to stop use. And they could bring an enforcement action against you that you have to defend in their state. So this is the other risk of you know, just willy nilly sending out cease and desist, which some people do is that they they then become very surprised. Let’s pretend you’re in Florida and you send somebody in Washington a cease and desist, suddenly you’re defending a lawsuit in Washington State because of that, because you have alleged and infringement they can they can seek what’s called a declaratory judgment, to have a local court decide that they’re not infringing your mark, and then you’re defending that lawsuit. So this is why having legal counsel can help you assess, you know, generally the things that I walk people through is, what’s the level of sophistication of the other party based on their business based on, you know, what we can tell about them online? Are they likely to have legal counsel in place? That’s going to be the first and primary factor that I look at, right? Are they up for a fight? Are they gonna want to fight you? Do they look like they have a business budget big enough to take you on? Right? And so you know, there’s some things that you look at that, generally, it’s it’s a lot of, you know, strategy call around? How does this business look from the outside? What’s their level of sophistication? And truthfully, a fair amount of psychographics? as well? What can we tell about this person based on their online presence based on their individual social media based on maybe what you already know about them in the marketplace, especially if they’re known? You know, if these folks already know each other in business, because that happens as well, somebody goes through somebody else’s program, or course they imitate it, they throw it, you know, all sorts of crazy things. But understanding psychographics can really help you determine legal strategy, how likely are they to fight? How likely are they to be reasonable? How likely are they to respond to what type of communication
And to protect that trademark? Does it have to be actual registered? Or can you protect it the same way as an actual trademark?
Heather Pearce Campbell 1:03:36
That’s a great question. So if you have what are called common law rights, where you don’t have a registered mark, but you’ve been using it in the marketplace, right, you’ve been using it in commerce for some time. common law rights are good. If somebody else gets the registered mark, they’re not better. So it never pays to sit on your rights, if you are understanding that it’s something that you want to protect in relation to your business. And this is why I tell people, you know, unfortunately, the game of business, and especially when it comes to registered trademarks, protecting intellectual property, you have to plan for where you’re going, not for where you are, and a lot of people plan based on where they’re at. Which means, you know, like, I had a client previous to becoming my client that created a signature program. This ended up becoming a multi million dollar asset and his business. He early on was just like so many other people like, oh, I don’t have the budget for a trademark registration. So I’m not going to look into that yet. By the time this, this program blew up and became kind of his signature offering, it was making millions of dollars and he went to get a trademark registration, didn’t own the rights to the mark some school in the middle of Arkansas did. So you have to be very, very careful and strategic about planning for where you’re going. And it also means pre allocating legal budget. If you’re serious about your business and you want to carve out a niche in your marketplace, you you just can’t cannot do that without allocating a certain amount of legal budget, especially initially as you’re building out the foundation for your business. Thanks. Yeah, great question.
I have a follow on question to that. For one of the when I got the trademark, you know, I had to select categories. So are those the only uses that I, you know, if I needed to
Heather Pearce Campbell 1:05:25
That’s right, so, yep. So for other folks listening, let’s pretend that you are an online business, right. And, I mean, this is a bad example. But let’s say you’re a self development coach, right. And you’re using a tagline live your best life, right? You’re in class 40 or 41. Different than an apparel company, right? Let’s pretend that there is a clothing company that wants to use the phrase, live your best life all over the front of their clothing, they will be able to because you’re not an apparel company, you’re not going to be in class 15 Or whatever class that is, you’re not going to be it maybe it’s class eight, I can’t remember it’s one of the early classes that I don’t generally deal with, because I’m usually working with folks in the online business space. So we’re looking at classes 35, class 40, class 41, sometimes class 16, which I believe is books, printed material. So Kim, great question, you are only protected in the category that you are registered. And that is how the USPTO you know, is able to identify not only the goods or services being protected, but it also protects against what’s called consumer confusion, right confusion in the marketplace, the singular question anybody should be asking when they go to get a trademark registration is, will this create confusion in the marketplace, what that means is, is there already accompany using this phrase or tagline or word that’s in a similar category or class, if somebody’s showing up to consume coaching services, they know they’re not buying a t shirt, there’s no possibility of confusion between those two things, right. So this is why we have to have categories is because paper products are different than online education, apparel, right, very different than a consumable. So you know, you have to, you have to definitely be careful when you’re going to get your registrations that you are selecting the appropriate categories. And then that you are creating descriptions within those categories that are not only a match for what you’re doing, doing, but give your business room to grow, not overly restrictive, so that, you know, you’ve because a lot of people will so narrowly defined what they’re doing when their business evolves. And, you know, they wish that they’d had a more broad or accurate description, allowing their business some room for growth.
Hopefully, that helps Kim. And that’s how I did work with an attorney. And we went through all of the
Heather Pearce Campbell 1:08:00
Thought out, you know, in the future. I think it was actually before we met, so probably,
Heather Pearce Campbell 1:08:08
Yeah, no worries. No, I’m glad you’ve got good support.
Yeah. Thank you so much.
Heather Pearce Campbell 1:08:15
You’re welcome. All right. Great questions. You guys. Any other questions? hang out for a minute. Yes, Jill.
So if I saw a cute mug or a t shirt or something, and I wanted to create something similar, Mm hmm. But change all the colors or whatever? Would I be infringing on somebody else’s trademark if I made T shirts and cups?
Heather Pearce Campbell 1:08:45
Agree? That’s a great question. Right? So what you’re talking about is usually making branded materials that support your coaching brand, right? Like, oh, I’m going to give away T shirts, or mugs or pencils, or pens or something along with my services. That type of use of your brand logo brand fate phrase, whatever it is that you’ve got a registered mark around is actually called merely or ornamental, you are not a mug company, you are not a clothing company. Right? And although you may be creating a couple of those things, that’s going to be considered merely ornamental use and not protectable. Right. So yeah, if now if you’re creating a whole line of clothing, right, and you have a whole business that like all you’re doing is creating clothing, then that stuff is way more likely to be protectable. But just essentially as a, you know, kind of a side effect of your primary business, not protectable. Oh, yeah. Great question.
Interesting. That’s why people can make pins and all kinds of things. Oh, sorting things. Yeah. Okay. Yeah. Interesting. Okay.
Heather Pearce Campbell 1:09:53
Yep. Great question. Anybody else? Leo? Larissa Glen Sherry, good to see you guys. Here today, I hope this has been educational for you. I generally wrap up around noon, but I’m willing to take another question or two, if there’s anything else.
I just I just have a question on one of my other questions. So the whole question that company that former partner paid, you know, to do that. So, what should be my next step? What should be like here, I just realized this recently, that there was certain document I did not have to get from, from from them. So they, they say, the IRS sent me a little card. I basically said, Hey, you’re gonna be late if you don’t take care of this sooner or later. And I’m like, I mean, I don’t have those documents. Oh, oh, how do I want me? What should I do?
Heather Pearce Campbell 1:10:50
Yeah, so in these circumstances, so one, I have to say that I can’t obviously provide individual legal advice on a call like this. So in all circumstances, when you have a very specific, you know, individual or case specific issue come up, I always start by recommending that you connect with an attorney licensed in your state. Number one, but you know, two, I’d be looking at, obviously, what is the IRS requiring, right? So, for example, I don’t know how long ago that business was created, right? Was it a year ago, a couple years ago, etc. You’d want to be looking at making sure that like, for example, if the first step was taking where the LLC was created, but then the follow up wasn’t done, that you get an operating agreement in place, if that’s the appropriate thing, because the other question is, is that business going? Is it viable? Is there reason to keep it alive? Or was it kind of a shell? LLC that got set up and then really never got activated? Right? Yes,
We started the business before COVID, a couple years before COVID really took off, actually, ironically, about three or four months into COVID. Finally got it.
Heather Pearce Campbell 1:11:59
Okay. So did you set up business bank accounts? Like did you do other things that Yeah,
Yeah. All that going now. All that is moving forward. Okay, well, this has gone really well. Oh, good.
Heather Pearce Campbell 1:12:10
So you’ve got your EIN, you set up your business bank accounts? Yeah. So getting an operating agreement in place will be key. If it’s if the LLC is is the correct entity? Is it still multiple owners?
Yes, it is. Yeah.
Heather Pearce Campbell 1:12:27
So the Let’s talk for a second about single owner LLC versus multi owner LLC, right, setting up a multiple member LLC is a bit like setting up a partnership, right? You’ve got some decision making, to go through around, you know, how you guys are operating the business, whether you’re both managers, whether somebody is, you know, more the de facto manager of the LLC and somebody else’s, maybe just a, you know, a partner that’s contributing cash or resources or whatever, right? Who does what, who does what, what is the management structure? Right? What are the obligations? Are they shared equally? Are they distributed in some other way? Right? Because there’s going to be some assumptions made based on state law if if these things are not addressed, right, and you don’t necessarily want to fall back on state assumptions if they’re not appropriate for you. So this is also we’re working with an attorney that is licensed in California, you know, is a recommended path, when there’s more than one just be more than one member, it becomes more complex, right? You have issues that just become more challenging to resolve. Now if it’s yourself right, I always tell people look, if it’s yourself, you still need an operating agreement in place if you’re a single member LLC, in order to complete that setup, you still need an operating agreement. There are templates out there you know, I can’t speak to all templates I created one that is included in my business builder basics bundle, you can also get it at the you know individually on its own through my site at the individual templates link which I’m happy to share again but but the the trick with and I have some templates as well, Nolan for multi member LLC, the trick is walking through the analysis of knowing what you need, right. And that is a little more challenging without the direct guidance of an attorney asking you some of the pivotal questions and key questions and also looking at those through the lens of state law. So you know, so truthfully for anybody in your spot, I would say probably the best bet is to connect with an attorney and have them help you create a multi member LLC operating agreement that is a fit for your scenario, because here’s the other things about the other thing about contracts that I always tell people, they are only as good as they are clear and accurate meaning that they pertain to your specific situation, or they’re not clear and they’re not accurate. They can get you into lots of trouble right now. All right. So, you know, that’s unfortunately, my recommendation is you may need a little hands on legal help to unwind that and get proper documentation in place so that you’ve got your operating agreement up. So that if there’s any catching up to do with the Franchise Tax Board, any of that, that you’re all caught up and you know, without looking at it directly, I wouldn’t obviously be able to advise you on the specifics of
Do do you practice in California?
Heather Pearce Campbell 1:15:27
I don’t I wish I did. I am Washington only I was Oregon for a time, but I’m exclusively Washington. I will say, and I’m happy, Nolan, if this helps you, because part of what people can struggle with is even deciding between themselves how they’re going to manage something, right? Because even before you get to the point of hiring an attorney, some of those decisions should have been made or or made with the help of the attorney about who’s going to do what, how are we going to manage this what happens? You know, unfortunately, I tell people this with you know, nobody starts a marriage planning for the divorce. And this is often not how people start businesses either is planning for the divorce. But with businesses, we know that they will come to an end, it’s just absolute truth of a business is that at some point, the exit strategy, what is your exit strategy? And and how does that get influenced by certain things. So for example, if two people show up, they’re 5050, they’re gung ho, they’re gonna do it, and one of them becomes ill, your exit strategy is probably going to look very different than two people are gung ho, they get started, they’re 5050. And then once somebody gets bored, and they just want to walk away, those probably have different exit strategies, right. So some of the work is really just around the decision making. And what this means is that if you go to my individual templates link, which I just popped in there, and scroll down to I have something that is called the joint venture, JV agreement template, just seeing how far down it is the page, I think it’s right in the middle. So it looks like if you scroll down 12344 Or five lines, it’s right in the middle. Because it’s a row three joint venture agreement. And the JV preparation guide, what I wanted to reference is I sell that whole thing for 497. The joint venture agreement, because you’re already in an operating company is probably not the fit for you. But the JV preparation guide, I’m happy to peel that off. I sell that separately for people that just need the guide for 147. It’s tremendous value, it’s six pages that will walk you through all the questions that you need to go through around. How do we make decisions? If we have, you know, a gridlock and disagree on something? How are we going to resolve that? How do we finance this business? How do we you know, share both in the opportunity as well as the cost, you know, all all the things that anybody should walk through whether they’re creating a legal entity as a partnership, like you guys have done or a joint venture agreement? That’s contractual, right, because you can also just have a contractual JV that’s project based. And that’s Yeah, and that’s what the joint venture agreement exists for here. But that JV preparation guide helps anybody in any kind of partnership.
So that sounds really good. Because I’ve done joint venture agreements, a lot of them the whole prep guide. I mean, that sounds really helpful. That’s
Heather Pearce Campbell 1:18:35
it. Yeah, it walks people through and I know you’re doing this a little retro actively because you guys have already created the LLC, but it walks people through the legwork of doing the thinking and the communicating in advance of making some of the decisions. You guys will just be doing a little of this after the fact. Right, but it’s still the same conversation that you need to have. Right? Right. So I’ll just offer that as a resource, because it’s, you know, I’ve I have a workshop that I’ve led on joint ventures and that guide is just really valuable for anybody that’s in the JV space or considering, you know, creating a partnership.
Are you Are you still going to offer that that?
Heather Pearce Campbell 1:19:12
Yeah, I the reason I put it up there is if you wanted to email me, I could give you a PayPal link. If you’re interested in that guide, I could just email at you directly because it doesn’t exist right now except inside of this little note.
I’m at the the with the webinar, or you just you just spoke about
Heather Pearce Campbell 1:19:30
the joint venture workshop. Yeah, joint venture workshop. Yeah. So I have a workshop that if somebody purchases the joint venture agreement, that’s the full 497 package with the preparation guide. I dropped them into Yeah, recording of a workshop that will walk them through training around how to use that document. So yeah, if you get the full package, I can drop you into that workshop in addition, but if you just want the guide I can peel that out separately because it is a good resource on its own.
And is there a difference between a LLC that is member managed? Or an LLC that has it has multiple members but only one person managing?
Heather Pearce Campbell 1:20:12
Yeah, so there’s what’s called manager managed member managed, right? And manager manages where you designate a specific Manager. This can be somebody within the LLC, it can also be an outside professional manager, like there are companies that do this, right. And so you can you can set up management structure differently. Otherwise, the presumption is all the members share in the management. Right. Presumption by state law for most states is that when you create an LLC, unless it’s been designated, designated, otherwise, the members share in the management because LLC is are a function of members. Right, the whole reason LLC were created is that they needed a legal entity that allowed people to limit liability brought in by business partners.
Right. Right. And does does, you know, California has offered yet the what they call a series LLC. Mm hmm. Are they offering that now? I know at one point, it’s kind of in a gray area?
Heather Pearce Campbell 1:21:16
Yeah, I don’t know about California, there are a lot of states that do series LLC for for a variety of reasons. Sometimes it’s real estate, sometimes it’s because companies have different, you know, sections that they want to break out. Yeah, entities into different series. And so that also is going to be an issue of state law.
I guess I’ll google that one. Or if you end up getting some legal counsel for your operating agreement, you could ask them about that same question series, LLC.
Heather Pearce Campbell 1:21:47
Thank you, Nolan.
I’m definitely a fan.
Heather Pearce Campbell 1:21:51
Oh, I so appreciate that. Well, what I find is that people have a really hard time getting some of these initial questions answered, to even be pointed in the right direction. And, and what I also find is that once people have some of these answers, they’re way more likely to take care of their business and the way that they need to, which means actually creating and building a successful business. That’s what I care about.
Absolutely. Right. And that’s awesome that you’re like, when I was a kid in high school, I started a business. And I met an attorney. And he was he became a lifelong friend. He’s totally retired, the entertainment industry, he’s managed some of the most prominent entertainers in the world. That’s awesome. And that hurts his name. And he’s a great, great, great guy. And, yeah, but unfortunately, he’s retired,
Heather Pearce Campbell 1:22:40
Right? I know, not all attorneys are on the wrong side, right, I get a lot of feedback from people that have tangled in our legal system. And it makes it really challenging for them to respect and be around attorneys. And I get it, our legal system is very, very constraining and very expensive. And, you know, it’s really heavily heavily based on procedure. And this can limit the ways that people are able to get resolutions within the context of, you know, like a legal system that’s designed that way, even though it’s quote, unquote, the best in the world for justice, right. So I get it. And I know that there are lots of attorneys that are that care tremendously about their clients, and they work hard 50 more than 50% of attorneys are solo practitioners, they don’t belong to big firms. They’re, they’re building a small business, and they just want to help take care of people in the way that they can just like other small businesses, and so actually, I have a really big heart for attorneys, because I know so many that work hard are not making a million bucks, and they just want to help take care of people and, and yet, our legal system can make it really hard to you know, have people feel awesome about having to participate in the legal system. So
Your rights. Same with the medical system, which is where I came from, right, which is why I’m a coach now instead of what I was doing.
Heather Pearce Campbell 1:23:59
Right? I know it you know, across any interestI industry, auto mechanics, dentists, right, I’ve heard nightmare stories from the dental field about unnecessary dental work and how you know, anyways, regardless of the industry there, there are folks that you know, really try to capitalize on the absence of knowledge of the consumer. And then there are folks that are educators at heart and want to do the right thing. And so, for me, I’m an educator and I really care that people make decisions from a place of empowerment and not fear and not miss education. All right, well, great call you guys. These were awesome questions. Any final chance, Heather? Yeah, you’re welcome. Great to connect with you, Jill. Good to see you today. Kim and Diana and Sherry And Glen, I hope you guys were able to benefit from this Nolan. Great to meet you need to thank you so much. Yeah, absolutely be in touch. If you need anything if you want to, you know any of the resources I mentioned, or you know anything else, otherwise I do these monthly and they’re the second Monday of every month. At 11am Pacific, awesome. Okay. All right now. Awesome. Good to see you, Diana, look forward to supporting you. You guys have a great week and we’ll hopefully see you again soon.
All right, bye bye.
Heather Pearce Campbell 1:25:17
All righty. Well, that wraps it up for today. As you can see, we have a good time and we talk about quite a bit at the intersection of law and business in these Ask Me Anything live sessions. Again, if you are interested in joining a future session you are welcome to hop over to Legal website warrior comm forward slash ask me anything, and you too can be notified with the details and the colon and login details for these future calls. Again, I host I host them once a month, they are by invite only two people on my list. So again, thank you for joining me in today’s episode. I really hope some of this information serves you well in your own business building journey. And I hope to see you again next week. Bye bye.
GGGB Outro 1:26:12
Thank you for joining us today on the Guts, Grit & Great Business™ podcast. We hope that we’ve added a little fuel to your tank, some coffee to your cup and pep in your step to keep you moving forward in your own great adventures. For key takeaways links to any resources mentioned in today’s show and more, see the show notes which can be found at legalwebsitewarrior.com/podcast. Be sure to subscribe to the podcast and if you enjoyed today’s conversation, please give us some stars and a review on Apple podcast Spotify or wherever you get your podcast so others will find us too. Keep up the great work you are doing in the world and we’ll see you next week.