Best Ways To Protect Your Business

Apr 2, 2021 | Risk Management

On this podcast, Karl welcomes Mark Miller, a partner at Jackson Walker. With over 40 years of experience, Mark is a wealth of knowledge when it comes to copyrights, trademarks, and patents.

Karl Eggerss:                      Welcome, everybody. Welcome to Creating Richer Lives, the podcast. And I say the podcast because we also have creatingricherlives.com, which is our website. If you haven’t been to it in a while, please go visit that. You will see a lot of different things than you saw maybe a few months ago. And if you’re wanting to know really what Covenant does, there’s a video right there on the… That’s the first thing you’re going to see. And of course we have a resources page that has a lot of good information on all of our best thoughts. And really, this podcast is a culmination of some of that throughout the week. We do put the podcast out on Saturday mornings. It’s a weekly podcast, for those of you that are new. We will generally look back at the previous week and really try to filter out the noise and bring you the most important things that we see the prior week and kind of what we might see going forward, and some ways to position yourself, to think about the environment that we’re currently sitting in.

In addition to that, we generally will have some sort of topic, whether it’s financial planning, estate planning, taxes, occasionally have guests. If you want to go visit our website, again, creatingricherlives.com. And our telephone number is (210) 526-0057 if you just like to have a conversation. In fact, right on our website, if you schedule a 15-minute conversation, it’s on there to do that. You click a button, says 15-minute conversation, and it’s just to kind of see what’s going on in your life and see if there’s anything we can answer for you as well. Well, I’m excited to bring you a guest today on this podcast. In 2008 and ’09, we saw a lot of financial stress for families, individuals, business owners. But out of that came numerous companies, household names that you would recognize in 2021. And yet a lot of these businesses came out of the bad situation from the great financial recession that we saw ourselves in.

And so out of bad comes good sometimes, making lemonade out of lemons. And I think 2020 and 2021 are no different. The pandemic caused a lot of financial stress for a lot of people. And we know those that continue to keep their job came away okay. The stock market recovered in fairly short order, but there were still the people that did lose their job. And maybe it was their time in life to say, “You know what? I’m going to try something different.” And so this podcast today is really about business owners. Whether you have an existing business you’ve had for years or you’re starting a business, this is about protecting it. And one of the things often missed are some of the fences put up around your business when it comes to copyrights, trademarks, patents, things of that nature.

And so what I’ve done is I’ve reached out to somebody I’ve known for a long time, Mark Miller, who is to me, one of the best patent trademark copyright attorneys that I’ve known. And I’ve known him for over 20 years. He was with Jackson Walker in San Antonio, Texas. And so I reached out to him and said, “Hey, why don’t you come on the podcast? A lot of business owners need to hear some of these things that you help people with every day.” And this guy has been doing it for over 40 years. So I’m excited to have him on. Just a reminder, you can always reach out to us if you have questions about any of this. And the podcast is always available on Apple podcasts, Spotify, Google podcasts, iHeartRadio. All the podcast platforms, it’s available. And of course, it’s available on creatingricherlives.com.

All right. As I mentioned at the beginning of the show, we have a special guest today. His name is Mark Miller. He’s a partner in the San Antonio office of Jackson Walker, which is… How many attorneys are at Jackson Walker, Mark?

Mark Miller:                       It depends on how you count. We’ve got about 40 in the San Antonio office and a little under 400 in the firm throughout the state. We don’t have any offices outside the state. So it’s either 40 or 400.

Karl Eggerss:                      Well, I’m sure you’re not going to remember this, Mark, but when I was a young tyke starting out in the business, I saw this free class. I think I was 23 years old and I saw this free class offered in the evening by this gentleman named Mark Miller. And I’d heard this name, that he was the best patent trademark guy around, and he was doing this class in the evening. And I thought, “This is really interesting,” because I had some invention ideas in my younger days. And that was the first time that I physically met you. I think I was 23. I’m now 48. So it was a long time ago. But seriously, I mean, so was that 25 years I’ve known your name. We become closer acquaintances in the last few years, and I wanted to bring you on today because we have obviously a lot of business owners that listen to the podcast.

And there’s some blind spots. We always talk about protecting yourself. There’s a lot of things people don’t think about. It’s like what don’t we know, right? And that’s where I think some of this comes in. And I wanted to bring you on to talk a little bit about copyrights, trademarks, patents, and really just a high-level overview. And then also for non-business owners, I think there are some things other people could be doing too. And I think probably what surprised me the most is that this is not as expensive or as labor-intensive as people might think. So Mark, first of all, welcome to the podcast. I’m grayer. You’re a little grayer than when we first met, but people around San Antonio especially know the name Mark Miller because you’ve been doing this for what, 40 years?

Mark Miller:                       Yeah. I was just outlasted everybody. That’s why you know my name.

Karl Eggerss:                      You’re still here. Made it through. And video conferencing. That was something new for you. And here we are.

Mark Miller:                       Yes. Absolutely.

Karl Eggerss:                      But no. I mean, you have spent more than 40 years defending dozens of intellectual property and franchise suits, primarily in federal district court. And again, trademarks, copyrights, patents. It can get pretty confusing. So let’s start off with just the small business owner, somebody that’s got 10, 20, 50 employees. What are some kind of things to think about in regards to their name and some of their intellectual property, I guess?

Mark Miller:                       Yeah. Let me sort of start up. You don’t have to go to medical school to have a doctor tell you, you ought to eat right, exercise, and sleep seven hours a day. And if you do that, you’re doing 90% of what you ought to do. And in the same sense, a small business owner, they ought to choose a unique trademark. They shouldn’t be delicious or wonderful or whatever, because everybody else… I’ve got so many… I keep having Alamo lawsuits because I’m in San Antonio. And that’s a wonderful thing for me. Yeah. But if someone was going to start out, they probably shouldn’t choose a name that everyone is going to want to fight about. So-

Karl Eggerss:                      Well, The other thing about Alamo is back in the olden days, it was pretty early on in the yellow pages, right, because it was like, “Hey, the AAA and the Alamos and we’re in San Antonio.” And so everybody wanted to have that name because when you’re flipping through trying to find a plumber or whatever, there it was, Alamo.

Mark Miller:                       Yeah. We used to have lawsuits. More than one company wanted to be aardvark or AAA. Those are the good old days. But yeah. So a business ought to choose a unique trademark and register. Get a federal trademark registration.

Karl Eggerss:                      Now let me stop you there. What is the difference? And I know the answer is because I went to your class 20-something years ago, the difference between a copyright and a trademark.

Mark Miller:                       Well, the trademark protects the business’s identity. So you’re Covenant and you can’t get a copyright on the word covenant, but Covenant is a trade name and it’s also your trademark. So I’m going to throw some numbers around there. They’re not quotes. Other people charge different things. But just as a ballpark, for $1,500, you can get a federal trademark registration on your business’s name. And that protects you from coast to coast. Not having a trademark registration on your business name is like owning your house, paying someone a couple of hundred thousand dollars, and not recording the deed down at the county courthouse.

Karl Eggerss:                      Now I see the R with the circle around it, and then I see the TM.

Mark Miller:                       Well, the R in a circle means that the person has a federal trademark registration. And the TM says, “I don’t have a federal trademark registration, but keep off.” It’s kind of like posting, “Keep off. I claim that I own this.” But what’s silly is why would you claim you own it and why would you put a TM on it? If you want, just spend $1,500 to go record it in Washington. And then the federal government says I own it.

Karl Eggerss:                      You’ll be happy to know that Covenant on our website, when people go log on, it says lifestyle, legacy, philanthropy with the R circled. So we have a registered trademark on that, which is our process. And to your point, why would you go to all the effort of putting a TM and not go all the way and spend a few dollars to really protect it?

Mark Miller:                       Yeah. Your business is going to get sold someday, you’re either going to be vertical or horizontal. And what I mean by that is you’re slowly going to time out and you’re going to retire, or someone’s going to come with a bunch of money and you’ll sell while you’re standing up, or you’re going to die and you’re going to be horizontal, and someone’s going to buy your business unless it dies. So I tell people they’re going to either sell it vertically or horizontally, and buyers will pay more for your business if you have a federal trademark registration because every buyer thinks they can do better with your business than the seller. Otherwise they wouldn’t buy it.

Karl Eggerss:                      Is there any reason a company would not trademark their name, their logo? Any particular reason why that anybody… I mean, should every business owner listening do that?

Mark Miller:                       Well, no, because maybe someone already registered it in Maine or maybe someone registered it in another part of Texas or whatever. And then, Oh my gosh, I can’t get a registration on it because someone’s already got a registration. Well, number one, now you know, because hopefully you went to a trademark attorney and the person said, “I’m not going to take your money because you’re going to get rejected by the trademark office.” But now you know, so you’re a smarter person and you can either say, “Okay, I’m going to keep using this, or I’m going to come up with a secondary trademark, or I’m going to change, or I’m going to decide. I’m so dug in, I’m going to keep using it anyway.” But you’re always better knowing that not knowing. You just ought to know. So for $1,500, and there’s other trademark attorneys in town.

Karl Eggerss:                      There are, I only know one.

Mark Miller:                       I’m speaking generically. So, for the price, it’s like going to the doctor and the doctor says, “Here, take this pill. It’s going to make you stronger. And by the way, it’s cheap.” So it’s just something that all businesses ought to think about it.

Karl Eggerss:                      So let me ask you this. You’ve got the logo, which you can see behind me here, our logo. And then you have a name that may say Lifestyle Legacy Philanthropy, that’s a registered trademark. Are those two different things, the logo versus a phrase versus a tagline, if you will?

Mark Miller:                       Well see, at a high level everything’s simple. And then as you get deeper it’s… So it can be all of those things that you mentioned. So the logo may be copyrightable. Okay? And it’s certainly trademarkable. The word is not copyrightable. The phrase with the logo might be copyrightable. And the reason you care is that if someone has, for example, a covenantsucks.com website saying bad things, they’re not selling your stuff. So it’s hard for you to have a trademark lawsuit against them. But if they’re using your logo, you might have a copyright infringement suit against them. So you can use these different tools in different ways, for different things. So it starts simple and it gets complicated.

Karl Eggerss:                      I have a pretty good long-term memory. My short-term memory is pretty darn bad. It’s like, who am I talking to? But my long-term memory is pretty good. And I remember you saying something about, you can literally write something out, put a C and circle it, and it’s a copyright.

Mark Miller:                       Yeah. Well, yes, if someone’s taking notes on this conversation, they are the author of their notes, and they have a copyright on it right now. It’s fixed in tangible form. The words I speak are not fixed, but as soon as someone records it, it’s copyright to it. Now, if they put the C and a circle on there, for no money at all, they have warned the world that I claim a copyright on it. And if there’s a lawsuit, the jury is going to look at the evildoer and say, “You idiot. There was a copyright notice on there. I’m not watching Dialing For Dollars because you ignored the copyright.” And then if you don’t put a copyright legend on there for free, the jury’s going to look at you and say, “You idiot, I’m missing Dialing For Dollars because you didn’t put a copyright notice on there. How was he supposed to know?” So for no money, you can put a C in a circle and your name on practically everything, and you now have more rights for zero money.

Karl Eggerss:                      Yeah. Because you and I talked a couple of weeks ago offline, and we were using some extreme examples, like a Tiger Woods, for example, and saying, there’s precedent, people know who he is, and that’s different than Karl Eggerss, for example, right? So there’s a lot of kind of gray area, or everybody knows that this person has this logo and this and this name, so to speak. So it gets pretty gray and pretty complicated. So it does sound like you want to do these things sooner rather than later. So you’re setting some precedent that, “Hey, I’ve been doing this for years this way.”

Mark Miller:                       Well, if you spend $45 and get a copyright registration. Then when you sue the evildoer, you can get your attorney’s fees and statutory damages, up to $150,000 every time they infringe. That’s a lot of money. If you don’t get a copyright registration, then you can sue and win, but you may have to pay Mark Miller a hundred thousand dollars, and then you get your damages. Well your damages, what are your damages? Maybe they were 5,000, 10,000. So now you got a $90,000 hole in the ground. But if you spent 45 bucks, instead, the evil Karl Eggerss, who’s copied my stuff. Now you’re looking at paying your lawyer, you’re looking at paying the other guy’s lawyer, who’s me. You’re looking at $150,000 statutory damages.

All this stuff, just because of a $45 fee. And the reason that’s there is because the music industry and the movie industry and all, they wanted huge penalties to go pound on people back in the early days. And they didn’t want the rest of us to be able to get those kinds of penalties. So they stuck in this thing about, you have to have a copyright registration to get these remedies. So all this stuff goes back to who paid the subcommittee members. [inaudible 00:16:33].

Karl Eggerss:                      Right. Right. Yeah. So, and a little pro tip here probably, just like 2008, when a lot of businesses were started after the great recession, 2009, 2010. The same thing’s happening now after 2020 recession, COVID, et cetera. People are out of work. They’re thinking about a different career. When you go to start a new business, probably best while you’re thinking about names and images and all that, to go seek out a Mark Miller or another attorney. Because again, you can go search these things in advance and save you a lot of time from having to rebrand down the road, because you don’t know when something’s already taken. You may have something a little more unique that you can trademark.

Mark Miller:                       Yeah. And at a minimum, there’s this thing called Google. So you may want to Google the name you’re coming up with, and you can go to the trademark office website and you can do a free search. It’s not as good as what I’ll do using my professional services, but it’s free. You can’t beat free. So if you come across some… If you go to the trademark office, someone’s already got the trademark registered for your service. You don’t have to pay me. You’re dead. I can’t undead you. And so the small business owner can do that without spending any money at all.

Karl Eggerss:                      Yeah. Right. Yeah. No, that’s great. I mean, the business owner, again, it makes sense to go down this road, do all that. What about for non-business owners? Does any of your work ever come into play for non-business owners in any form or fashion?

Mark Miller:                       Well, yeah, but I mainly, I work for money and mainly businesses are the ones that have money. And so that kind of leads to generally working for businesses. To get off of trademarks for just a second, go to patents. Well let me define there’s civilians or people who are doing something and it’s not their line of business. And professionals are people who do it and it is their line of business. And professionals are usually businesses. They’re selling $10 million of something, and they’re going to sell another million dollars if they do these things. So they want to protect that extra million dollars that they’re going to make. But, so civilians will come up with a great idea and they don’t have a whole lot of money and they don’t have any way to sell it.

They don’t have any way to have a distributor. They don’t have any way to manufacture it, but they want to make money with it. And they’ll go to invention development companies. And I can say without fear of speaking a libel or a slander or whatever, that in the 40 years I’ve never come across anyone who was happy that they went to an invention development company. Now, there may be some people out there that went to invention development companies and made some money. I just haven’t come across them. But what they could do instead is go to a patent attorney, doesn’t have to be me, go to a [inaudible 00:19:39] and talk with them about a provisional patent application. It’s a $230 filing fee. It buys the person a year to go out and seek a licensee. And the wonderful thing about that, so that protects the idea for a year. Not more than a year, but a year. And the wonderful thing about that is they can go spill their guts to potential licensees and say, “Hey, I can get you rights on this, if you pay me, and otherwise I’m going to go sell it to your competitor.” It gives you a one-year to do it. And what I like is there’s that fuse, because in the end of the year, it blows up. And the reason I like that is they don’t keep wasting their money.

Karl Eggerss:                      That’s right. Yeah. One thing that I remember, and it’s another thing I remember from your speech, you had a big impact back then, but one of the things…

Mark Miller:                       I’m impressed Karl.

Karl Eggerss:                      I’m telling you.

Mark Miller:                       I don’t remember what I said 23 years ago.

Karl Eggerss:                      I got a sharp German mind. What can I say? So one of the things you said was, “Okay, wise guy, you’re 23 years old, you have a new invention. And instead of going to one of these companies, you think I’m going to go ahead and invent this new pair of jeans.” That was your example, back then. And the new pair of jeans… And you go to a company and they say, “Great, we need a thousand pair a week.” And I’m just Karl, the individual. And your example was, “You can’t produce a thousand a week, so why not go license it?” And I think you also may have used the negative to that, was it the Chiquita bananas where the guy had the chocolate dip banana bites, that may be something else I’m thinking of where he basically, they stole the idea from him. So let’s go down that path of people have a great idea and the licensing of it and how that works. So you spend this money for the year and you say, “You know what, there’s some merit here, but I’m just an individual. I need to go take this to a big corporation who can actually produce my idea.”

Mark Miller:                       Yeah. Your normal civilian is not going to make these things in the garage and sell them on the street corner. So you have to have someone who’s going to take it from you. The reason we’ll talk about this jeans, the jeans people, and that more, 23 years ago, I can’t believe you remembered.

Karl Eggerss:                      I am right about that example, aren’t I?

Mark Miller:                       That’s right. There were a couple good old boys down at Dilley, Texas. And they got

Mark Miller:                       Used washing machine and they threw some new jeans in it with some permanganate and some sand and they came up with this thing called faded jeans. Because at the time, the only way you could get faded jeans was to wear them. And so they were very expensive. And so they filed a provisional patent application and then they went around to companies and marketed it. And this company is confidential agreement, but the initials are Levi-Strauss. This was 30 years ago. But they were not going to make thousands of jeans and sell them on street corners. So let me get back to the generic. So you have an idea, you file your patent application, your provisional, which is cheap. And right before you do that, you make a list of, “Who might pay me money for an exclusive right to this?”

You make a list of them and you write out a letter to each of them. It’s the same letter, basically, but it says, “You will make more money if you do a deal with me, because you can sell these.” You’re making your sales pitch and you send it to all of them, you start off. And most of them are going to say, no. Maybe they’ll all say no. And which tells you something. But if someone says yes, then you hug them like a brother and you try to get them interested. And maybe now you start investing real money. But you want to use that year without spending money because probably 100 horses in this race, only one of them is going to win and the other 99 go to the glue factory at the end of the track. So the odds are, you’re going to end up in the glue factory. And because of that, one of your targets is spend as little money as possible.

Karl Eggerss:                      Yeah. We’re speaking with Mark Miller. He’s a partner at the firm of Jackson Walker, a big large firm that has specialists. That’s. That’s what’s cool about Jackson Walker. They’ve got specialists in all these different areas and you are the patent trademark copyright guy. That’s I know the Mark Miller. Mark, the example I was given that the gentleman had the idea, “Hey, why don’t I chop up some bananas, put them in a little tub with a container and there’ll be dipped in chocolate. And they’re chocolate covered banana bites.” And he had this idea. I went to Chiquita and they said, “Yeah, it’s stupid. We don’t want to do that.” And the next thing he knows, it’s on the shelf under Chiquita. And I don’t know how that all ended up, but that’s the scary thing why people are hesitant to go talk to companies. I’ve seen good ideas just dissipate, because people are scared to take that next step and that idea dies in the garage.

Mark Miller:                       Yeah. And most of them should have died in the garage. There’s there’s that. But it’s true, if they go to the company, most companies like my clients won’t look at it unless the disclosing person signs a piece of saying, “I have no rights to whatever I show you, unless it’s covered under a patent.” And because the companies don’t want to get sued… But probably if you take your idea to a company and you say, “Hey, look at this.” And they say, “No kid. We don’t like it. Go away.” And they do it and they rip it off. Probably if you sue them, you’re going to lose. Because it wasn’t a secret, they didn’t sign anything saying they’d keep it a secret. You don’t have a patent on it. But they don’t want to be messing around with getting sued by these people in front of friendly juries.

Karl Eggerss:                      Is that just a simple NDA need?

Mark Miller:                       Well, yeah. A simple NDA-

Karl Eggerss:                      Which is a non-disclosure agreement for those that-

Mark Miller:                       Oh yeah. You’re right. Yeah. But when you say simple, see I write non-disclosure agreements for both sides. So, the company, non-disclosure agreement says, “You civilian are screwed.” And then the one that the disclosure would like the company to sign says, “You can’t use this unless you come back and do a deal with me.” Well, the companies won’t sign that.

Karl Eggerss:                      Right.

Mark Miller:                       So if you go to a company and they say, “Please sign this.” If you look in very fine print on the bottom, it says you’re screwed.

Karl Eggerss:                      Yeah. Yeah. So what do you suggest in that situation? You got somebody in their garage and it’s one out of a thousand that’s a great idea and it could actually be something and they know they can’t manufacture and they don’t know how to start a business. They just have a great idea that they see a specific company could use.

Mark Miller:                       They should file a provisional patent application.

Karl Eggerss:                      One year, right?

Mark Miller:                       One year and immediately go to the company and say, “Here’s my provisional patent application. Are you interested? Because I’m negotiating with other companies.” So, they will look at that and they’ll take it to their patent attorneys and say, “Do you think we could do something with this? If we invest a million dollars in this, can we stop our competitors? Can you get me a patent that will stop our competitors from knocking us off?” And if the patent attorney says, “Yes, well now you’re in the race.” But the patent attorney may say, “No. I can’t get you.” But at least now you’ve got someone else paying a patent attorney judgment.

Karl Eggerss:                      That’s right. Yeah. So, you don’t need to give specifics, but I am curious about some of your most interesting situations. In general, over your greater than 40 years doing this, both for good and bad where you saw an individual take an idea and maybe it was great and it was protected properly. Or conversely, they came to you too late or ideas got stolen, whatever scenarios you can think of. And again, I’m putting a little bit on the spot, but there’s got to be some of these stories that stick out in your head after 40 something years.

Mark Miller:                       Yeah, just recently we’re in South Texas fracking is where you put a frac plug down in an oil well and you seal the well and then you fracture the formation and you drill the frac plugs out. Every time you drill the frac plugs out it’s 50 to $100,000 because it takes a couple of days. Well, client was at a trade show and saw a very hard material that would degrade in the conditions of a downhill oil well and they thought, “Huh, what if I make a frac plug out of that?”

We got several patents on that kind of degradable frac plug. And I can say, because it’s published in the SEC, Securities and Exchange documents. They sold out for $330 million cash plus stocks and all that kind of stuff. It was a viable company making money otherwise, but that was something from nothing. Hey, I wonder if I could do that? And they have wonderful engineers but without a patent on it, it wouldn’t have been worth anything because everyone would have knocked it off.

Karl Eggerss:                      Can you mention one of the stupidest things that’s ever like… People come to you and you say, “Hey, let’s not even meet because you’re what you want to do, you need to go home and burn it.”

Mark Miller:                       Well, one good thing or good thing, a different thing about being in a large firm, which I am now. I used to be in an IP boutique. We don’t have that many civilians come in to a large law firm. And if you come into our lobby, you say, “This is not my cheapest alternative.”

Karl Eggerss:                      Yeah. When you can practically see down to Corpus Christi from your office window.

Mark Miller:                       Yeah [crosstalk 00:29:34].

Karl Eggerss:                      That tells you yeah, it’s not going to be too cheap.

Mark Miller:                       I can see Calaveras Lake from here. Yeah.

Karl Eggerss:                      That’s right. That’s right.

Mark Miller:                       And there’s Trinity and there is… Looking out the other way, I can see St. Mary’s University. But no. So, new mothers have an infinite variety of things for their kids, including the milk containers and crib protectors. Oh, and I think I got four or five patents on different sorts of taco… Not taco. Tortilla cookers. Like the ones you used to see, they were spinning. Yeah. Yeah. Yeah. So, back in the day I used to get lots of patents on tortilla.

Karl Eggerss:                      Yeah. They’re almost like a-

Mark Miller:                       Cooker.

Karl Eggerss:                      They’re almost like a carousel with different layers and then you have the heat element coming down and they’re blowing up and they’re spinning around and then somebody’s slinging them. It’s pretty impressive to watch actually.

Mark Miller:                       Yeah. And since patents are only good for 20 years, and since I’ve been getting them for 43 years, you can imagine a lot of those patents are expired.

Karl Eggerss:                      Yeah. What does happen at the end of that? Once something runs its course, what does that look like?

Mark Miller:                       Well, that’s the deal that society and the government make with inventors. We as a society want people to bust their butt and invest money and effort to invent new stuff. We want new cell phones, we want new software, we want new computers, we want new everything. But we don’t want to pay people to do it. So well then they’re not going to do it if you don’t pay them. It’s a capitalist society.

So we say, “Well, I’ll tell you what. We’ll give you a 20 year monopoly on it if you will tell everyone how to do it.” So at the end of the 20 years, you’ve told everyone how to do it. Now they can do it. So, when you go to a patent attorney, we write a patent application that tells the world how to do it. They tell the recipe. How to make a cell phone out of how to… And then when the 20 years expires, everybody knows how to do it. But we didn’t pay the person to invent. Instead, we gave them a 20 year monopoly. So that’s the trade. And if they don’t tell the world how to do it, well, the patent’s invalid. And if it turns out it really wasn’t new and novel and non-obvious and all that kind of stuff, then it’s not valid. So-

Karl Eggerss:                      It’s much shorter for drug companies. Is it not?

Mark Miller:                       No. It’s the same 20 years, but it seems shorter because-

Karl Eggerss:                      It does.

Mark Miller:                       Well because it might take 10 or 12… You’ve got to pity the poor pharmaceutical companies. It takes a billion dollars in 10 or 12 years to get it to market. So you’ve only got eight years left of your 20 years.

Karl Eggerss:                      Oh, I see.

Mark Miller:                       We can go down the rabbit hole of how they can extend that for a few years, but not much. A law is not written for one industry, a law’s written for everybody.

Karl Eggerss:                      What’s the hardest industry as far as what you do on a daily basis. Is it the music industry? Is it clothing? Is

Karl Eggerss:                      Is there one that stands out that you say it’s always a bear, this particular sector or industry?

Mark Miller:                       Well, you’re telling [inaudible 00:33:07] . For copyright, of course it’s all the internet streaming stuff and everybody is copying things. And we’ve got different copyright laws that apply. And then we got different jurisdictions and trademarks. The issue is, now we’ve got different jurisdictions with different countries. So you can have a federal trademark registration, like I was talking about. But someone else gets a registration in Canada or Mexico. Now you can’t expand into those countries unless you got a registration first. So then we talked about copyright patents. We have those issues, trade secrets. We haven’t done that too much, is getting people to realize that their employees are going to leave. I cannot get business owners to conceptualize the fact that their employees are in fact going to leave and you know where they’re going to go?

They’re going to go to a competitor. So intelligent business owner will figure out what don’t I want them to take to a competitor. And then, what do I want to tell a jury if the employee does take it. I want them to sign an agreement, says they won’t take it. I want to stamp it confidential. I want to restrict access. These are cheap things, they don’t cost anything. It’s a formal agreement, everybody signs it. You get a rubber stamp that says confidential. You say, “okay, I’m keeping the recipe in this locked drawer. I’m not going to leave it on the wall.” Those are easy, cheap things. And that’s the kind of easy, cheap stuff. It’s like eat right, exercise and sleep well. Those are the 90% of things that small business owners ought to do.

Karl Eggerss:                      Yeah. Everything you do on a daily basis, seems like there’s a lot of gray in it. Because again, it’s judgment calls. Does that logo look close enough to this other logo that you can’t use it, somebody is making a decision right? To say you can’t use that. It seems like there’s a lot of judgment call in this whole industry of what you do.

Mark Miller:                       Oh, absolutely. Absolutely. I mean, but it’s like choosing the right doctor and the right lawyer. There’s a million judgment calls. There’s the basics are [inaudible 00:35:21] any textbook. And then you’re relying on the attorney you’re talking with to make these judgment calls.

Karl Eggerss:                      So I do see on our logo, after the name Covenant registered, and I assume it’s because it’s tied with the logo. So it’s the logo and the name Covenant together is one registered trademark, not the name Covenant by itself.

Mark Miller:                       Well, I’d have to go to the look at your registrations. I mean, they could be registered together. They could be registered separately. One could be registered and not the other. So depending on how big your business is and how much money want to spend. If you were Apple, you’d have three registrations on that. And if you were you guys, you might have one. So I’d have to look.

Karl Eggerss:                      So can somebody have ABC company and another ABC company, but the fonts are different, not the image, but just the letters themselves? The font, is their own font or their own in ones in cursive…

Mark Miller:                       Well, on that exact thing, the answer would be no. But I’m making a prediction because all of those come down to a jury answering, do I find from a preponderance of the evidence that the evildoers ABC is likely to cause confusion read with the plaintiffs, ABX? However you… if it’s so obvious that it’s just the fonts it doesn’t get to a jury. But ultimately whether there’s a likelihood of confusion, that’s a jury question.

Karl Eggerss:                      Yeah.

Mark Miller:                       Well, we’re in America. We’ve got all these things go to juries.

Karl Eggerss:                      Yeah. No, that makes sense. And again, if I’m a jury, I’m saying, well, I know this company who has the same name does something completely different. So I don’t find confusion that, so I’m sure it stops there and then it goes down. Mark, before we wrap up anything, I didn’t ask you that you said, “I can’t believe he didn’t ask me that.” I got to-

Mark Miller:                       No, we’ve touched on, if for trademarks, choose something unique and register it. For copyrights, get assignments and register it. For trade secrets, identify what it is you don’t want your employees to take when they leave and treat it that way. And then on patents, really talk to a patent attorney and ask about a provisional patent application that’s cheap.

Karl Eggerss:                      So you’re ready for me to send you all my little drawing saying, “Hey, look at this little thing, I want to put a patent on it,” and you’re going to say “crumble that up and throw it in the trash.”

Mark Miller:                       For money, I’ll wash your windows.

Karl Eggerss:                      I’m sure you will. And tell me, it’s a great idea. You should go to [inaudible 00:38:02] .

Mark Miller:                       No, no, no. I tell my clients that I’ll do two things for you. I will give you my independent advice and I’ll follow your instructions as long as it’s ethical and not fattening.

Karl Eggerss:                      Yeah. Well, very good. I appreciate your time, Mark. This is Mark Miller, who was a partner at Jackson Walker, over 40 years of experience. Of course, you can go find him on jw.com and it’s just like you said, it’s kind of like an insurance policy. It’s just things you do as a business owner. And this is one other piece of it. So thanks for taking the time today, Mark. Appreciate it.

Mark Miller:                       Thank you very much. Your podcast is what I call a dog-walking podcast. I have exercise podcasts. I’ve got chores podcasts, and I’ve got dog-walking podcasts. Yours is a dog-walking podcast because I like to listen to it and ponder it.

Karl Eggerss:                      I thought you were going to say something about what the dog does on their walk. And then I’m glad though, you didn’t say it’s going to sleep podcast.

Mark Miller:                       No, no, no, no. It’s a dog-walking podcast.

Karl Eggerss:                      Well, I appreciate listening and we will see you soon. Thanks Mark.

Mark Miller:                       Thank you. Well, that’s going to wrap up our show for today. I hope you enjoyed that. Just a reminder, go to creatingricherlives.com this podcast will, of course, be on there, memorialized, if you will. And it’s also available on all the podcast services. Don’t be afraid to share this on your social media.

Again, we want to grow our audience. We do put a lot of energy into the information we bring to you every week. It’s a collaborative effort from the people at Covenant. I’m the voice of that, but certainly it’s a collaborative effort and we want to share it with as many people as possible. So don’t be afraid to share it to your friends who might need to listen to this, whether it’s education in some form or fashion. We’ve obviously been spending some time in the last week talking about financial education and financial literacy for our youth. This week was more about business owners and trademarks and patents and things of that nature. So again, give us a like, give us a thumbs up, a comment, whatever you’d like to do, we appreciate it. And we thank you for listening and you guys have a great Easter. Take care. We’ll see you next week.

Speaker 3:                          Please remember that past performance may not be indicative of future results. Different types of investments involve varying degrees of risk, and there can be no assurance that the future performance of any specific investment, investment strategy or product, including the investments and or investment strategies recommended or undertaken by Covenant Multifamily offices, LLC, Covenant, or any non-investment related content will be profitable, equal any corresponding indicated historical performance levels be suitable for your portfolio or individual situation or prove successful. Moreover, you should not assume that any discussion or information serves as the receipt of, or as a substitute for personalized investment advice from Covenant. To the extent that a listener has any questions regarding the applicability of any specific issue discussed above to his/her individual situation. He/she is encouraged to consult with a professional advisor of his/her choosing. Covenant is neither a law firm nor a certified public accounting firm, and no portion of the newsletter content should be construed as legal or accounting advice. A copy of our current written disclosure brochure discussing our advisory services and fees is available upon request or at creatingricherlives.com.

 

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