Ep 31: Why You Should Protect Your Intellectual Property

[00:00:00] Jeannell: I still run into customers to this day that say, I've been looking for you all these years. I didn't know what happened, and we thought we did a good job announcing it and sharing it, but apparently not. Some of our customers, they were like, why did you change the name? How dare you take it away? You know, all these businesses are selling out. I mean, they just assumed all kinds of things were happening, and we were like, listen, I'm still the owner. It's still the same product, it's just a new name. But they didn't believe it. They didn't trust it. They were endeared to it. That was the first time that I realized how connected people get to a brand and how much it means to people.

[00:00:38] HOST: Hi, This is Small Business, a podcast brought to you by Amazon. I’m your host, Andrea Marquez. On This is Small Business we cover all things small business that will help you start, build, and scale your business. We will hear from guests with diverse backgrounds, point of views, and stories, with the hope of hearing from many types of small business entrepreneurs. On each episode I end with key takeaways [00:01:00] that you can use on your business journey. Today, we talk about protecting your brand. Something that a lot of small businesses tend to brush over is protecting their IP or intellectual property. But if you want your business to grow and to have a competitive edge then safeguarding your IP is essential to your success. So, how do you protect your IP? At what point in your business journey should you start thinking about it? And what are some of the consequences you could face if you decide to put it off?  

Coming up -- I'll talk to Cynthia Dahl, Practice Professor of Law at the University of Pennsylvania Carey Law School, about how you can protect your intellectual property. But first -- I want you to meet Jeannell Darden, CEO of Moisture Love, a vegan beauty brand that helps women love their curls and you can find their products in the Amazon store along with most of the small businesses we feature on This is Small Business. So the reason I was also really excited to talk to Jeannell about Moisture Love is because, [00:02:00] Moisture Love actually used to be under a different name -- Cocoa Curls. But as her business grew, Jeannell had to change her brand name because of copyright issues and although her business is still doing great, changing her brand definitely impacted her. If you’re at the stage of thinking about the name of your business, logo, and brand identity, then this episode is especially for you.  

We’re going to talk a lot about lawyery things on this episode, so just know that none of the things mentioned on this episode should be taken as legal advice. We’re here to provide with general information. So before you do anything, please seek qualified professional counsel on your specific matter. The hiring of an attorney is super important so don’t make that decision lightly or based solely on anything we cover today on this episode, or any other for that matter!  

And lastly, remember that if you want to hear your story on This is Small Business, we have a voicemail line where you can ask questions or share your entrepreneurial story. We want to hear from you! Find the link to the voicemail line in the episode description.

[00:03:00] Jeannell: So I like to tell people I've been in the beauty industry since I was a child. My mom's a licensed cosmetologist. She taught me how to do hair at 10. Most people have chores, like sweeping floors and doing dishes, and my chore was to do my hair, my mom's hair, and my sister's hair every Saturday. So I learned to love beauty. And then the summer before high school, my mom had gave me a relaxer. And because I'm a professional at this point, I colored my hair just two weeks afterward, and it broke off really bad. And for three years I held onto this damaged hair while I was matriculating through Georgia Tech. I took an African American entrepreneurship class. We had a project where we had to do a writeup on a famous CEO and I chose Madam CJ Walker, and I was so inspired by her story and how she fixed her hair challenges with her products. I was like, oh, surely, I can do the same thing.  

[00:03:53] Andrea VO: For those of you who don’t know, Madam CJ Walker is recorded as the first Black woman millionaire in America. [00:04:00] She ran her own haircare empire and was inspired to create her hair products after experiencing hair loss. She came up with a treatment knows as the Walker System and sold her homemade products directly to Black women. If you don’t know her full story, I encourage you to check it out. Back to Jeannell’s story.  

[00:04:16] Jeannell: So I started summer of 2011, we launched my first brand, which was called Cocoa Curls. We went through a crazy trademark opposition that lasted like three years, and then in 2016 we rebranded to Moisture Love and we named the brand Moisture Love because moisture is the number one challenge that women with curly hair have, and loving and embracing their beauty and feeling good about their hair is a close second similar to how I felt when my hair was damaged and broken off. So now our mission is to help women with curly hair find joys and ease in loving their curls.

[00:04:50] Andrea: Tell me more about your experience with trademark opposition with Cocoa Curls. What happened there and why did it happen?

[00:04:55] Jeannell: It was intense. So someone had told me, hey, you need to trademark your brand. [00:05:00] And so this being my first real business, cuz I've been an entrepreneur since middle school. I sold candy to pay for my trip to go to New York, and so I just go to the state trademark office and I paid $10 and I filled out the paperwork and I'm like, oh, cool. I did that. Check. But then I think I was working with a mentor or someone and they were like, do you have your national trademark? I was like, yeah. And I showed it to them and they're like, no, that's just your state trademark. Um, and so we filed our USPTO trademark, um, and we had gone through the process, updated, uploaded everything, and we, there's this period called opposition. Where in the last, I think it's six months for anybody to oppose your trademark to give any reason. It's kind of like at a wedding where there's like, if anybody objects to them getting married. And we had one week left and we received a cease and desist from another company saying that they had first use before us and that they were opposing it. And that was the beginning of our journey. And crazy enough that was sent to me the day that I was in the hospital having my second daughter. [00:06:00] So it was like, Happy Birthday to her. This is what I had to deal with on that day, so it was a lot.

[00:06:05] Andrea: That’s terrible! Sorry you had to go through that. But also what a hard intense lesson to learn right? I mean you had to change the name of your brand, and that probably influenced not just your rebranding, but your relationship with your customers.

[00:06:22] Jeannell: Yes, it did. It did. I still run into customers to this day that say, oh, you're Cocoa Curls. I've been looking for you all these years. I didn't know what happened, and we thought we did a good job announcing it and sharing it, but apparently not. Some of our customers, they were like, why did you change the name? We love the name and the Cocoa Curls lady. It came with a character. So she was a character, and she was really cute with curly hair. We love the logo, we love the Cocoa Curls lady. How dare you take it away. You know, all these businesses are selling out. I mean, they just assumed all kinds of things were happening, and we were like, listen, I'm still the owner. [00:07:00] It's still the same product, it's just a new name. But they didn't believe it. They didn't trust it. They were endeared to it. That was the first time that I realized how connected people get to a brand and how much it means to people.

[00:07:10] Andrea:  When you rebranded to Moisture Love, what were some of the considerations you made in terms of trademarks and protection now that you know more about it?

[00:07:20] Jeannell: So, well, first I'd like to tell everybody I'm not a lawyer, didn't go to law school. Four years of engineering, really five years of engineering nails it. So definitely consult a trademark attorney. And actually that is the first thing I will say. Consult a trademark attorney on the front end. Um, a lot of times as small business owners, we get really personally endeared to a name, a brand, a color, a look, a feel, and before you get too far in that process, just make sure it's safe, especially if you plan on having a big business. So otherwise, if your goal is just to be a mom and pop and do, you know, farmer's markets, nothing wrong with it, not bashing it at all, then maybe it's not that important. But if you intend on having a hundred-billion-dollar brand that I intend on having, then you definitely wanna make sure you consult someone on the front end.

[00:08:00] The second thing is understand what the brand means to you and what you intend for it to mean to other people. Like, where are you going? What's the, what's the mission, vision, values, what's the, what's the purpose? What's the pain point that you're solving and how can that name easily connect and resonate with the people that you intend to serve, not sell to, but serve. And if you think about a brand, as I'm positioning myself to serve someone, then it really kind of changes the mindset with which you go into thinking about how you name it.

[00:08:30] Andrea: So once you consulted that trademark lawyer, did you do anything differently when thinking through that rebranding that you didn't do the first time around?

[00:08:40] Jeannell: I did a lot differently. So the second time around it was like, how can the name tell a story? So like I said in the beginning, moisture is the number one challenge that women with curly hair have. Loving and embracing themselves is a close second. I wanted the brand to invite the feeling of love and, and beauty and confidence. [00:09:00] Oftentimes women with curly hair feel like they have to cover it up, cut it, color, change it to be something else. So that played a huge part. What are the colors? What do the colors mean? I actually consulted with a brand consultant to help me think through this, cuz I wouldn't have known to think through this the second time. How are we gonna position this brand? How can we make sure that when they see the brand, that it feels inclusive to them? Is it gonna just be domestic? Is it gonna be international? Like how, how do we play out all those things? How do we spell it in a way that's easy for people to spell? And it's not so long and complicated, so we had all kinds of other names that got kicked off the list for different reasons.

[00:09:40] Andrea: When you thought about that name, it’s meaning, and felt in a confident spot to adopt it, at what point did you start the trademark process?  

[00:09:48] Jeannell: Immediately. Immediately. Because everything about trademarks in the US is about first use date, right? So for instance, with us, had there been somebody who could prove back in 1989, [00:10:00] they sold a hair product under the name Moisture Love and never trademarked it, then they could oppose my trademark right now to this day, or at least during that process. And they could have shown their paperwork, they could have shown their bill of sale. And I wouldn't have been able to select that name. So the moment that you know the name that you wanna go with, you can file an intent to sell. So even if you know you're not gonna sell for another six months, you can file a 10 sentence and sell. And you wanna be able to document that as early as possible.

[00:10:32] Andrea: Are there any other things you had to do to protect your brand apart from filing for a trademark?

[00:10:36] Jeannell: You file your trademark. Um, you make sure you have all your legal, uh, docs in place, so your LLC, your EIN, your operating agreement, all those types of things. You make sure when you file your trademark, it's clear who owns your trademark. So do you the individual own it? Does the company own it? Does some other entity own it? That's really important because typically when you go to sell your company, people kind of think of your company and the brand as one of the same, but they're really kind of mutually exclusive. [00:11:00] Cuz you can have company A with six brands and maybe only brand three has any real value. So it's very important to make sure that you own the brand ie the trademark and you're clear on who owns that so that if you ever did a transfer of ownership, the person who's buying knows that they have clear use in ownership to that brand, if that makes sense.

[00:11:23] Andrea: Ok so once I’ve done all of that, then I’m done right?

[00:11:28] Jeannell: Know that it's not done. Just when you file it, you still have to every five years prove that you're still using it and go back in and refile it and submit more paperwork. So know that it's not done. Certain things you keep an eye out for you, keep a process in place to make sure you stay on top of it. And then, yeah, every brand you think of, trademark it. You may have a brand that sells the product, but you may have another brand that you know, you do YouTube videos under, or a class that you teach under. Just trademark it all. It's worth it. And if you start selling internationally, know that you're not protected internationally just cuz you're protected domestically. [00:12:00] It may not matter initially, like if you're just sending a couple of cases of product to somewhere. But if you are really an international brand with international distribution, then you need to do international trademark for the EU, for Africa, for Australia, for wherever it is that you're doing business, that you want to be protected.

Because what can happen is, people in another country can be making your product, shipping it into the US and there's ways to also protect against that or to check against that. But what people will start doing is knocking off your product. So getting it made somewhere else. Sending it in across the border and selling it here. And they will take your label and duplicate it word for word font for font, placement for placement. Um, but you can put certain protections on your brand that when anything is entering in the country at the border, they can check to see, okay, is this actually coming from Moisture Love or is it coming from somebody else? And I don't know that every case can be found, but it can be caught. But I know a lot of them can.  

[00:13:00] Host: You're listening to This is Small Business, brought to you by Amazon. I’m your host, Andrea Marquez. You just heard from Jeannell Darden, CEO of Moisture Love. You can find out more about Moisture Love in our show notes on our website: Thisissmallbusinesspodcast.com.

Jeannell's journey was definitely a difficult one but I'm glad that she was able to overcome it and protect her current brand name against any other trademark issues in the future. She talked a lot about how the customer connects to the brand, so making sure you find a name that'll resonate with your customers is super important. And as soon as you get that name, make sure you trademark asap.  

Like Moisture Love, the small businesses we feature on This is Small Business are some of the many small businesses selling in the Amazon store who have tapped into some of the tools and resources offered to help them succeed and grow. One of those resources is the Amazon Small Business Academy where you can find the help you need to take your small business from concept to launch and beyond. [00:14:00] You can strengthen your skills at no cost with live and on demand trainings, Q&As, events, and even find more This is Small Business content. If you don’t know where to start, you can take the free self-assessment on the Amazon Small Business Academy site at www.smallbusiness.amazon.

So far, we've talked about Jeannell's journey with copyright and trademark and how she's currently protecting herself against any future issues. So let's dig deeper into the process of what that looks like with my next guest: Cynthia Dahl, Practice Professor of Law at the University of Pennsylvania Carey Law School.  

[00:14:35] Cynthia: I've been an I. P. lawyer for 20 years and tech lawyer. I started straight out of law school at a law firm where I did some litigation. And then after a couple of years of that, I recognized that I really liked transactional law. So I went in house for a while. And then after that, I decided I wanted to pivot and teach. And so I've been a professor at the University of Pennsylvania, Carey Law School, now for about 10 years.  

[00:15:00] Andrea: Let’s jump right in, Cynthia, what do you think are some of the considerations founders should make in terms of trademark and protection?

[00:15:06] Cynthia: So IP stands for intellectual property. And the way that we think about it really is IP is a business tool. It's whatever is the asset of your company that helps you to compete with your competition, whatever's special about your goods or your service. So trademark is a kind of IP, or more accurately, I guess, trademark is an IP protection tool. People have brands to identify them as the source of a good or a service and trademark protection is the way that you protect that brand and keep others from using your brand in a confusing way. I think that small business owners should think about their IP even more broadly than trademark. I would say really that they've got three questions to answer. And the first question is what makes me special? [00:16:00] What makes my small business faster, better, cheaper, my product better than my competitors. And that's where they should start thinking about using IP protection. So the first question I guess is to identify the asset.  

And the second is to then match the asset to the tool because trademark is a great tool to protect brands, but we also think about patents. We also think about copyrights, patents protect processes, copyrights protect content and trade secret actually is useful to protect things like data, or important information. So first, identify the asset. Second, identify the tool that would best protect the asset. And then third, then talk to a lawyer about how to use that tool effectively. And so, although small business owners may not be thinking about IP first, it is critical to think about IP when they want to compete with a competitor and roll their product out.

[00:16:52] Andrea: So do you think a small business owner should look at intellectual property protection as an iterative process? Something continuous? [00:17:00] This makes me think of all the large companies that change their names throughout the years to reflect the landscape.  

[00:17:08] Cynthia: So I think it's an iterative process. I think that small business owners are wise to think about it at various times of their company's growth because as you grow, you change and then your needs change. Things happen, you roll out new products, you find a new competitor and then you need to revisit these questions. But I would say if a small business owner starts in the beginning to think about what they're hoping to do, then they can think about how to use IP to help them to grow. So I would say start in the beginning thinking about these things and then come back to it as the company grows and changes. But as soon as the small business owner comes up with a name for their good or their service, they're already starting to think about their IP. IP should come early, but IP protection shouldn't come first. First, the small business owner needs to think about their product and their market and to make sure they've got something that, [00:18:00] that people want to use or to buy. But as soon as that small business owner starts investing in developing that product, then they should start thinking about what they should protect.

[00:18:15] Andrea: What’s something about the process of protecting your brand that you think small business owners could be confused by, especially if this is their first business?  

[00:18:23] Cynthia: There's a difference between what you call your company and what you might call your good or your service and so there are actually two different registries, and I think a lot of early-stage entrepreneurs get this confused. They think if they pick a name for their company and then they register to do business, say in the state of Pennsylvania, where I am, that they also have locked down their trademark rights. But that's not true. You can call your company one thing and call your good or your service something else. And what you call your good or your service is your brand. And so I think once you, as the small business owner, [00:19:00] decide on a trademark, which is the source identifier for your good or your service, then you should look and see if anyone else is calling their good or service the same name or a similar name. And if they have registered with the U. S. government for trademark rights. And there is a website that people can go on. It's USPTO.gov, which stands for United States Patent and Trademark Office, dot gov. And if you go on that website, you can search to see if anyone else has registered for the same name that you're interested in using to mark your good or service.

[00:19:34] Andrea: So, if you’ve done it for the name of the product or service, do you have to do the same thing for the company name, as in the owner of the good or service?

[00:19:42] Cynthia: When you register to do business you go on to the Secretary of State website and you, again, can't register the same name company as somebody else already has in your State. So it's a different registry for a different purpose, but you do similarly have to pick a unique name.

[00:20:00] Andrea: So, thinking about Moisture Love, Jeannell didn't fully learn the process of intellectual property protection until she was in a bit of trouble. And it affected her customers who recognized her brand, who already bought her products because they thought that they were discontinued or didn't exist anymore. And it felt like she was starting all over again. What are your thoughts on going through a situation like hers?

[00:20:24] Cynthia: That is not the first time I've heard that and when that happens to our entrepreneurial clients, it's so sad. So we try to really help them to get ahead of that and I think that's where your question came from, where you were saying, like, should IP come first? Should IP protection come first? And I would say very soon in the process before you lose your heart to a name. You should see if it's even viable and you raised a really good point to that. I think it's important to talk about. So when you talked about the trademark Apple, many people know of that trademark affiliated with a, you know, a computer company, [00:21:00] but you could also imagine that there might be an Apple daycare in a local place. And so how is it that the Apple daycare is able to use Apple and not get sued by the computer company? And the answer to that is that trademarks are class specific.  

So the world is divided into 45 classes and you really want to be careful of anyone that has the same or a similar name in your class for the same kind of good or service. Because trademarks are all about trying to keep the consumer from being confused. And so you could see that a consumer would be confused if two companies with the same name are selling very similar products. So it's best if you can pick what we call a distinctive name that distinguishes you from everyone else that's selling similar products in your market. And sometimes, the reason that you have three different companies battling over the same or similar name is because the name was descriptive to begin with. [00:22:00] And the more distinctive the name is that you come up with, the more likely you are that no one else is going to be marketing under the same or similar name.

[00:22:08] Andrea: So something that came up in the conversation with Jeannell was registering your business name, your logo, or both. What are your thoughts on that? Are you supposed to also register your logo?

[00:22:18] Cynthia: When you say register your business name, again, we come back to that point of registering a business name is different from registering your brand name. And so as long as we're talking about the same thing. So, should you register both? You should register whatever you are using as a brand, and you've got some choices. And it's always about cost benefit for small business owners, right? Limited money in the beginning, especially. And so you're trying to get the most coverage you can with the least amount of cost. So, if you use the logo separately from the name, then I would say you should think about registering both.

[00:23:00] Sometimes people use the name in conjunction with the logo. If you always use them together, know, and you have coverage over at least the name, you know, you have some coverage over your branding, but filing trademark applications is not that expensive, even for a small business owner. It's not like patents where it's thousands of dollars. It also doesn't take a ton of time to get feedback from the USPTO about whether or not you're going to get a registration. So our advice generally to small business owners is to register what they are using consistently for identifying their brand, for identifying their goods or service so if you like your logo and you want to protect it, I would say, yeah, register for your logo.

[00:23:44] Andrea: Any last thoughts?

[00:23:46] Cynthia: So I'd like to just get back to what I said before, which is that it's good to educate yourself and to revisit these questions over time because needs of businesses change, find someone that has some knowledge about IP protection [00:24:00] that also understands the needs of small businesses and can give you some advice about again, how to get sort of the maximum coverage for the minimum price while you're growing, not closing out any options in the future.

[00:24:16] Host: Ending by reminding us to get the specific help we need, especially if it’s legal or financially related. And I was curious to know just how much a small business could expect to spend on getting legal help. It all depends on your specific needs and I asked Cynthia her thoughts on this, and she mentioned that typically you pay an hourly rate. There are also IP clinics that can help early-stage entrepreneurs that can do it for free or the client pays the cost of the government fee only. There is a list of these resources you can find at USPTO.gov and in in the show notes of this episode.  

And Cynthia also wanted me to share another resource you could tap for something like this. A simple trademark filing tool you can find at [00:25:00] www.pennipc.com. Penn with double n. It has two parts - the first guided interview helps entrepreneurs understand if they should file a trademark application and the second guided interview walks entrepreneurs through an annotated version of the USPTO application.  

So many resources available!  

That was Cynthia Dahl, Practice Professor of Law at the University of Pennsylvania Carey Law School. Thank you for listening today. As always, let’s end the episode with some of our key takeaways on understanding intellectual property protection:

• One. I know I’ve said this before but you can never be too sure, CONSULT A LEGAL EXPERT. Do that before anything else. This will ensure you’re covering all your bases that could help you avoid problems in the long-run.
• Ok now that I’ve made sure to mention that, Two. When thinking up names for your brand and product, try not to get attached to it early on, because someone else might already own the rights to it. [00:26:00] So make sure you go to USPTO.gov to check if someone else is using the name you're considering using. And remember that this is an ongoing process that doesn’t stop. You have to keep checking in to make sure that your paper work is still relevant and prove that you’re still using it. And if anything in your business changes, as we’ve seen major companies rebrand themselves, then you have to go through the process again.  
• Three. Remember that the parent company name is different to the brand name. To be on the safe side, protect both. It’s two different processes so make sure to cover both. And trademarks are also class specific, meaning, you could have the same brand name as another business, as long as you’re not selling within the same class, so that you don’t confuse costumers. And if you use your logo a lot and it is closely tied to the name, protect it too.  

I'm curious – Have you been thinking about how you can protect your IP? Have you consulted a legal expert? [00:27:00] I'd love to hear about your journey! Reach out to us at thisissmallbusiness@amazon.com to tell us what you're up to. Or let me know what you think of the episode by leaving a review on Apple Podcasts – it’s easier if you do it through your phone. And if you liked what you heard -- I hope you'll share us with anyone else who needs to hear this!

If you’re an aspiring entrepreneur, and I hope you are if you’re listening to This is Small Business. Or maybe you already have your small business up and running and you’re ready for the next step. A super valuable resource that can help you is the Amazon Small Business Academy where you can find the help you need to take your small business from concept to launch and beyond. Take the free self-assessment on the Amazon Small Business Academy site at www.smallbusiness.amazon.

That's it for today’s episode of This is Small Business, brought to you by Amazon. Until next week – This is Small Business, I'm your host Andrea Marquez -- Hasta luego -- and thanks for listening!  

CREDITS: This is Small Business is brought to you by Amazon, with technical and story production by JAR Audio. [00:28:06]