On the latest episode of The Small Business Show, we’re exploring a new innovative law firm model. Joining us is Jonathan Page, Founder and Chief Visionary of InPrime Legal. Page founded InPrime Legal, which uses a subscription model instead of the traditional billing-by-the-hour law firm model, and he flourishes in helping CEOs and business owners discover ways to scale and sustain profitable business growth.

For legal firms, hourly billing has historically been the norm. But whether a company is leading or underperforming, Page believes all businesses rely on metrics. “Metrics influence behavior,” he asserts. For instance, salesmen are paid commissions, which influences their conduct to meet business demands. Lawyers work similarly because if you tell an associate how many hours they have to bill, it drives their performance to attain that metric. 

Key Takeaways: 

1. Page decided to use innovation and technology to his advantage when he started his legal practice to provide outstanding legal services on par with the top 100 law firms but in a more affordable or accessible way.  

2. Although InPrime’s goal is to assist people and provide a platform where businesses can scale, those businesses often can’t afford them. So it became imperative for Page to have a system in place where he could still be an asset and help companies grow. Moreover, when they grow, they often return and invest back into the law firm. 

3. InPrime discovered that most small business owners gamble with risk. “Risk is inevitable because you must take risks in order to scale your business,” says Page. However, there’s a distinction between gambling and taking proactive steps to reduce that risk that remains up for debate. 

4. There are numerous publications on sales and marketing that emphasize the importance of concentrating on what keeps your target audience up at night. However, the truth is that those audiences are not plagued by thoughts of investing in their operating or employee agreements. Hence, one of InPrimes’ responsibilities is to assist them in supporting legal strategists who can justify the importance of those items. 

5. Moving forward, InPrime is launching a new program called LIO, which stands for legal intelligence optimized. It will be partially based on artificial intelligence to support new and existing clients to optimize more efficient, accessible, and feasible legal decisions. Additionally, everything will be delivered through the platform so the attorneys can focus on areas where they provide the most value. 

“Always lead with value, and if you provide enough value, eventually you’ll get paid.” – Napoleon Hill and Jonathan Page

Are you a small business owner? Well, we’ve got some tips for you. We are diving into a topic on today’s episode of The Small Business Show, that could reshape your path to success. We’re talking about Trademarks! While it may seem like a symbol, a trademark can carry a profound significance for businesses like yours. Joining us in the studio is Zach Eyster, Trademark, IP, and Brand Management Attorney at Founders Legal, to further elaborate on how business owners can protect their trademarks. 

Founders Legal is the future of legal services, founded in Atlanta, Georgia’s blooming technology center. As a distribution firm, their team of legal professionals and attorneys provide seamless and tailored legal advice no matter the location of your business. They are dedicated to delivering clients with the highest quality of services possible. 

Key Takeaways:

1. Trademarks hold more value in business than anything else.

2. In the U.S., if your mark or brand is easily recognizable by consumers, it will be easier to attain more rights, such as common law. 

3. When it pertains to protection, businesses should:

• • Review what is already available.
  • Develop rights on your trademark.
  • Register your brand under federal law.

4. Once you register your trademark, you should contact an attorney. Despite registering a trademark by yourself is feasible, it’s complicated and timely, so an attorney could help assist the value of your brand. 

5. Only hire an attorney who specializes in trademarks. 

6. You can file an intent to use the application, which states you have yet to start using your trademark in commerce but intend to do so within three to four years. 

“Always lead with value, and if you provide enough value, eventually you’ll get paid.” – Napoleon Hill and Jonathan Page

Does your small business owe back taxes? The IRS will mail millions of letters to taxpayers this summer. It’s essential to address the issue to avoid penalties and interest charges. Some options can help you escape from a burdensome tax debt if you struggle to pay back taxes. On today’s The Small Business Show, we’re talking to Alyssa Maloof Whatley, Tax Attorney at the Law Office of Alyssa Maloof Whatley, to tell us more about what taxpayers or business owners need to know if they owe back taxes.  

Alyssa is an experienced attorney helping clients with debt, IRS tax relief, audits, and U.S. Tax and Bankruptcy Court litigation. She specializes in obtaining debt relief through bankruptcy, offers in compromise, innocent spouse relief, and penalty abatement. She also is a strong legal professional skilled in financial analysis and settlement negotiations. Alyssa notes, “Being a business owner can be difficult, especially when you already have a lot to accomplish and don’t need distractions.” Sometimes, owners receive offer letters, Alyssa continues, “But it doesn’t necessarily mean it’s from the IRS.” She further explains, “If entrepreneurs deal with tax audits or collection issues with the IRS or state tax attorney, any of those things can make owners feel uncomfortable or frustrated.” But, it’s important to note most IRS employees have never been business owners, they can appear aggressive. 

The roadmap

Most taxpayers are unaware that the burden of proof lies with the taxpayer in virtually every civil tax lawsuit, audit, or collection matter. Unlike criminal proceedings, the burden of proof rests with the government. Alyssa asserts that “Timing is everything.” Therefore, a letter is our country’s standard form of due process. However, owners waive their rights when they discard IRS letters. Alyssa adds that the most crucial action after receiving a letter from the IRS is to “verify it’s actually from the IRS.” There are a lot of scam agencies and tax resolution firms posing as the federal government, saying that they can help you with your tax debt. But, to prevent you from getting scammed, go to IRS.gov to verify your letter number, or the taxpayer advocacy group offers a taxpayer roadmap to guide you to the correct location of your debt. 

Additionally, the government is building a massive database of information to represent those taxpayers who under or misfile their taxes. They are generating several automation systems from which your letter probably originated. “To me, that’s what Americans should be concerned about, especially with the upcoming election cycle,” asserts Alyssa. Furthermore, “Back taxes can be forgiven,” she adds. There are different programs, but each person’s ability to resolve their tax debt with the federal government is based on their own facts and circumstances.  

Ultimately Alyssa asserts, “The easiest way to explain it, the government does have a series of fresh start programs. If you owe $50,000 or less, you can set up an installment agreement over 72 months with no questions asked.” Additionally, because the government typically has ten years to collect back debt, entering into a partial payback agreement results in a lower payment than initially anticipated because the debt would expire. “The ‘Offer and Compromise’ is the most utilized program because business owners’ debt no longer becomes legally enforceable. The other method owners choose is from the widely broadcasted advertisements on the radio since it’s based on the ability to pay.

“Always lead with value, and if you provide enough value, eventually you’ll get paid.” – Napoleon Hill and Jonathan Page

How do you know which business structure is best for your small business—sole proprietorship, corporation, or LLC? On today’s Small Business Show, we’re pleased to welcome Ana Juneja, Managing partner of Ana Law, to explain how to form a small business entity and what you need to know about your small business’s legal framework. 

About the firm

Ana Law, a firm that specializes in trademarks and brand protection, has revealed that its founder, Ana Juneja, has risen to the position of No. 1 trademark attorney on social media. With the milestone, the company declares that it will proceed with the next stage of its social media outreach, which will integrate additional platforms like TikTok and podcasts.

Back to the basics: 

Simply said, the structure of the company constitutes its business entity, even if it doesn’t legally have any documentation. For instance, if you operated as a sole proprietor without a limited liability company (LLC) or corporation, you would be regarded by the law as an unfavorable entity. Juneja notes,  “whether you were selling goods or services to the public, making $5 or $500, you’re still held to the standards of a business owner by the courts.” She adds that obtaining an LLC is an easy way to protect yourself and your business. 

Establish your firm as a separate entity from yourself by following a few simple steps. Which helps to isolate your finances and liabilities from the company’s assets. When it comes to small business startups, Juneja cautions everyone to always be overly cautious. The consequences could wreck you forever, she adds, “even though there is only a 1% possibility of a complete devastation happening.” 

Entity types:

• An LLC is a formal entity that is by far the most prevalent, and it is very easy to create one in the United States. The platform offers protection while being reasonably simple to set up, making it a great asset with tangible value for your business.
• A corporation is more formal that allows for venture capital (VC) funding, which is recommended to obtain in a favorable business state like Delaware, Wyoming, or Nevada for the sole purpose of dividing up shares. 
• A PC Professional Corporation, commonly referred to as a professional limited liability business, is a different entity type that is used by licensed professionals such as accountants, attorneys, and doctors. This entity is different in every state. 

Overall, Juneja adds that “an S company is not a sort of business, but a tax choice.” For instance, if your LLC generates enough revenue to qualify for S-corp status, it will be categorized as an S-Corp.

“Always lead with value, and if you provide enough value, eventually you’ll get paid.” – Napoleon Hill and Jonathan Page

Tax season is one of the most arduous periods for small business owners, with dire consequences for those who take the task too lightly. On this episode of The Small Business Show, host Jim Fitzpatrick is joined by tax attorney Alyssa Maloof Whatley, Chief Legal Officer at the Law Offices of Alyssa Maloof Whatley. She is a tax controversy attorney, and thanks to her successful career settling disputes between her clients and the IRS or Georgia Department of Revenue, she has in-depth knowledge of common mistakes entrepreneurs make with they file their returns.

Whatley explains that small business owners often become subject to punitive measures on accident, due to their lack of familiarity with the system. To avoid punishment, citizens have to follow a complex set of rules. Failing to comply with these, intentionally or not, opens the door to more drastic measures, such as property and asset seizures. For example, the government is not allowed to violate a citizen’s right to due process, meaning that entrepreneurs always have the option of taking the matter to court. Unfortunately, when it comes to situations such as audits, since tax enforcement agencies typically send their communications in the mail, many small business owners accidentally toss the letters in the trash. “Your due process…comes in the form of the mail, and you have to actually open the letters…” explains Whatley. Those who throw away these notices also throw away their due process.

Small business owners who file schedule C tax forms are some of the most targeted victims when it comes to audits. This is due to the liberties many filers take when reporting certain areas of their income or expenditures. Whatley notes that operational costs such as fuel expenses are often exaggerated in these reports, and since such items, even when accurately reported, typically have little supporting documentation, the IRS often has the advantage during disputes. Whatley stresses the importance of proper bookkeeping to keeping a company running, as poor data management can lead to trouble with the IRS.

Small business owners also make mistakes on their tax forms by not understanding the data they need to provide. For example, companies are required to report their expenses. Owners who use a credit card for their business needs may make the mistake of simply writing in the sum of their monthly statements. Unfortunately, different types of transactions are taxed differently. Gas and meals need to reported separately, since different rules apply to each. To avoid opening themselves up to investigations and fines, Whatley recommends that owners do thorough research on where different types of data belong on a return. “As technology increases…the more government information that they have and the more data they collect, the more dangerous the IRS actually becomes to us taxpayers, and the more prepared you have to be,” she cautions.

While Certified Practicing Accountants (CPAs) can go a long way in preventing tax filing discrepancies. However, when the IRS selects a business owner for an audit, their best course of action is to contact an attorney, who can offer guidance and negotiate on their behalf. In the absence of a CPA, Whatley encourages entrepreneurs to make record keeping a daily habit. For items which are more difficult to track, such as gas mileage, they can use apps to ensure accuracy and provide a paper trail.

“Always lead with value, and if you provide enough value, eventually you’ll get paid.” – Napoleon Hill and Jonathan Page

The Atlanta Small Business Network, from start-up to success, we are your go-to resource for small business news, expert advice, information, and event coverage.

As a new business owner or entrepreneur, you will make mistakes along the way. It’s almost inevitable, but many mistakes can be avoided saving you time, and more importantly, money. On today’s show, we are excited to welcome attorney Stacey-Ann Taylor, Esq., owner of the Law Office of Stacey-Ann Taylor, LLC, to help us navigate through some of the common mistakes that we see entrepreneurs and small business owners making.

The Atlanta Small Business Network, from start-up to success, we are your go-to resource for small business news, expert advice, information, and event coverage.

We have seen trademark disputes play out in the media, from stolen concepts to logos and even counterfeits. With so much confusion how do you make sure you and your small business are protected? On today’s show, we’re pleased to welcome an expert on trademarks and brand protection, Charis Dorsey aka ‘The Brand Attorney’, and owner of The Dorsey Law Firm.

The Atlanta Small Business Network, from start-up to success, we are your go-to resource for small business news, expert advice, information, and event coverage.

Forming an LLC does not guarantee that your personal liability is protected on all sides. In fact, there are limited circumstances where a business’s liability shield can be pierced, known as piercing the corporate veil. Understanding the circumstances where this can happen and how to prevent them should be a top priority for every small business owner and entrepreneur.

On today’s show, we’re discussing five ways to keep your LLC’s liability protection strong with Dayna Thomas Cook, Esq., entrepreneurship and entertainment attorney at the Law Offices of Dayna Thomas. Dayna is also the best-selling author of Entrepreneur’s Guide to Building a Solid Legal Foundation.

TRANSCRIPTION:

Jim Fitzpatrick :
Thank you so much for joining us once again, Dayna.

Dayna Thomas :
Awesome. I love being here and sharing tips and tools and strategies with the audience so we can help them build the best businesses possible.

Jim Fitzpatrick :
Sure, sure. So, let’s jump right in here. What’s the first thing business owners and entrepreneurs need to understand about keeping their liability protection strong?

Dayna Thomas :
Okay, awesome. So Jim, I’m going to talk about five things, but I want to introduce it by saying that the overall goal with everything that I’m going to talk about is to treat your business as a separate person from you, right? It’s an entity, but really think about it as separate from you. Right? And so, number one, the first thing that we want to do we’ve mentioned is actually form a business entity, right? I think that a lot of folks may think that just adding LLC to their name or just opt to create a business under a different business name will give you some type of protection.

Dayna Thomas :
It will not do anything unless you actually file your documents, your LLC documents or other entity with the Secretary of State. In most states, it is the Secretary of State. In some other states, it might be another process for that. But file your documents. Not only file them, but keep up with your annual registrations because your state will dissolve your company if you do not keep up with your annual registration. I’ve seen many times Jim, where clients will come to me and I say, “Do you have an LLC?” And they’ll say, “Yeah, I’ve had my LLC for five years.” While we’re talking, I’m looking it up on the Secretary of State, and it was administratively dissolved two years, and they hadn’t [inaudible 00:02:24].

Jim Fitzpatrick :
That’s right. I have been guilty of that myself. A lot of well seasoned entrepreneurs have been guilty of that as well. It just gets by you, and you realize … It’s not something that jumps out every year to say, “I’ve got to renew that.” And it’s interesting you should say that because I just had a conversation with my attorney on this to make sure that every year that’s being done. So it’s an easy thing to overlook, but it’s a very, very important thing that it’s in line. Right?

Dayna Thomas :
Very easy to forget, especially since normally it’s once a year.

Jim Fitzpatrick :
That’s right.

Dayna Thomas :
Know for sure. So let’s jump into number two. Number two, an operating agreement. Right? So an operating agreement is essentially a contract between the owners of a business about how you will run that business. Now, I will say this. In the state of Georgia, as well as in most other states, there is a default law. There’s default laws that LLCs and companies can fall back on if you do not have an operating agreement. However, I would not recommend relying on that because it may not be the way that you want to run your business. And proactively, if you have an operating agreement, it just shows that you are really treating your business like a business, not just making decisions on a whim. Right? But not only have an operating agreement, but follow it. Right? Your operating agreement will say how you make decisions. Whether you need to have a vote about it, whether you need to write it down, and following that as well.

Jim Fitzpatrick :
Yeah. Yep. There’s no question about it. It’s a common mistake, because people think too, “Well, I’m going to business with my buddy and therefore, why do we need this operating agreement? Why do we need this all spelled out? We know what each one of us is going to do and we bring strengths and weaknesses.” It all sounds very well-intentioned and great. And it’s going to work out that way, but more times than not does it work out so perfect to the point that you don’t need an operating agreement? This is an area that you absolutely have to pay attention to. And I agree with you. It’s a very important document.

Dayna Thomas :
Phenomenal. It’s true because not only is it good for your liability protection, but just like you said, it helps to avoid business disputes. Just go back to the agreement. What did we agree on in the beginning? And you can kind of squash that right there.

Jim Fitzpatrick :
That’s right. That’s right.

Dayna Thomas :
Number three. This one is so important, and it will get you in the most trouble if you don’t do it right. You want to make sure not to commingle funds. Attorney Danya, what does that mean? It means keep a separate bank account for your business and personal assets. This should not be something that you do once you feel like you’ve made enough money to actually separate your business. This needs to be done and have a business bank account before you start collecting money. You really have to have that ready to go for when you take your first dollar, because if you are joining your funds, so your personal funds and your business, then you’re not separating your business at all. So just like money as an asset, so is a liability. If you’re putting your assets together, those liabilities will be together as well. So you have separate business bank accounts.

Jim Fitzpatrick :
Let me ask you this. What if I’m a business owner and out of the business, I write my car payment out of the business checking account, and I make my personal car payment with that?

Dayna Thomas :
That is no good, Jim, because you are paying a personal debt with business funds, right?

Jim Fitzpatrick :
Right.

Dayna Thomas :
It would be a different story, right, if your car was registered in your business name, and you are using that car for business purposes, and your operating agreement gives you the authority to do that. Right? So that’s a different story. But just saying, “You know what? I have more money in my business account than I do on my personal account. I’m just going to pay this, my car note this month or this month, and next month from my business account.” That’s a no-no. Right? You can’t.

Jim Fitzpatrick :
If I were to do something wrong in business and I got sued and they said, well, there’s an LLC. There’s a corporation in place here. So we could only sue for the assets of the company, so to speak. Would the car then become one of them?

Dayna Thomas :
You know what? That’s a common misconception that just because you have an LLC, that means that I’m protected. Right. I formed my LLC. Even though I paid this debt out of these other funds, it’s okay. No, that is called … the ability to alleviate that protection is called piercing the corporate veil. Right? So everything that we’re talking about today, those are factors, meaning you really want those factors to be on your side.

Dayna Thomas :
There is some leeway with entrepreneurs. You make a mistake here, that you don’t make a consistent. No one is perfect when it comes to business. So I don’t want to discourage anyone. Right. But that’s the reason why we’re having these types of conversations so that you know. Right. So even if you have an LLC and let’s say an operating agreement, but you don’t do anything else, you’re your money’s together. And you know, all the other things that I’m talking about, you can have your corporate veil pierced, meaning we’re cutting right through that liability protection and coming to you as a personal debtor.

Jim Fitzpatrick :
That’s right. And the business owner did it inadvertently not realizing that they are the ones that made that piercing possible, not the creditor or somebody coming after them. It’s actually, they were their own worst enemy and doing that and not understanding you can’t co-mingle, you can’t bring these two separate entities together. Once you do, you marry the two together and they’re all in the court’s eyes seen as one. Right?

Dayna Thomas :
Yup. And that’s the difference between treating it like a business and treating it like a hobby. Right? A lot of times these mistakes happen because it is more convenient just from this account. It’s more convenient just to have one account and not have to have a fee every month. It’s more convenient, but you’re a business owner. We’re not doing this for convenience. We’re doing this so that we can build legacies and things like that.

Jim Fitzpatrick :
And you touched on something earlier, when you said it may start as a side hustle, but then you start to take it serious. Take it serious from day one. Do these things. If you build widgets, do it before you build your first widget. If you clean homes, do this before you clean your first home, because they can also go back if they wish to. Whoever wants to, whether it be a company that comes after you or an employee or whatever, and say, “Well, wait a minute. You actually did co-mingle these things back a year ago or six months ago, what have you.” So we’re going to try to bring those together, right?

Dayna Thomas :
No business is too small to have an LLC, especially in Georgia. The investment is so low, in order to form your LLC. But of course thing on top of those other things, that’s just the first step.

Jim Fitzpatrick :
That’s right. I would also say that for the people that are listening, to the people that are about to make the jump, or maybe have already made the jump. They’re working a side hustle, or they’ve opened up a small business. This to me, and this is my own experience over the last 35 years of being an entrepreneur. This is an area that I would recommend. Don’t leave this to some of the do-it-yourself organizations out there like Legal Zoom or some of the others that might entice you to say, “Along with our help, we can set up your company.” This is something that you want to bring into an attorney like Danya, that you can sit down with to say, “Here’s our objective. Here’s our business. What do you recommend? What’s the structure? Talk to us and help us set up the operating agreement.”

Jim Fitzpatrick :
Don’t try to do this particular element, folks, online because these are very, very important steps. And you want to have an attorney in your corner that actually created and helped you to create these documents so that they know where you’re at. And the fact that they can also then play a big role in defending those documents once they’re put together. Because I’ve seen too many people once they’ve gone to Legal Zoom, then they figure out, “Ut-oh, I made a mistake. Legal Zoom didn’t tell me about it. And now I’ve got to find an attorney to get me out of this mess.” Save yourself the headache and just get with an attorney.

Dayna Thomas :
I just love it. We’re on the same wavelength, because that is so true. How can you build a solid foundation if your very first steps are rocky? You don’t know if you filed it right, and then you’re building assets on top of it. So this LLC that you don’t even know is correct have other assets and liabilities in that name. You want to do it correct. The other thing that you mentioned is attorneys digging you out of trouble. I don’t touch anything that I didn’t do. So there’s a lot of times when it comes to filing their own LLC or filing their own trademark, and they’ll come to me to send a cease and desist letter or something. I don’t feel comfortable doing that because I don’t know how [inaudible 00:10:54] what our rights are.

Jim Fitzpatrick :
Right. You didn’t put them there. Why is it up to you to get them out of there?

Dayna Thomas :
And I don’t even know if the rights are strong enough based on what you did on your own. If I do it, I know it’s right. So I feel comfortable sending those letters, right? Well, that’s a part of building a team.

Jim Fitzpatrick :
Yeah, no question.

Dayna Thomas :
Great point. So number four, right? You want to own your business assets in your business name, especially your intellectual property. And this one is very important to me. It comes up in my business quite a lot because I do have a lot of trademarks. And one of the questions, and this is an example is, should I file my trademark in my business name or my personal name? Because they feel like, “Hey, I came up with this brand. I want to own the trademark to it.” However, your trademark is a business asset. You are using that brand name or that logo to sell products or services under your business.

Dayna Thomas :
So your business needs to own that asset. We can’t just put liabilities in our business name, because we want to be away from liabilities. But then all of our assets are in our personal name because assets help us to make more money. Can’t have to do that. Right? So as you are an entrepreneur, you will have intellectual property. You will have content that you create. You will have brands that you come up with, right? So trademarks, copyrights, things like that should be owned by your business. Not only to protect your liability protection for the things that I mentioned, but there are certain situations that may come up. If someone thinks that you’re infringing on their trademark or they’re infringing on yours, whether it’s a trademark or copyright, and there happens to be some type of litigation, you don’t want your personal self to be a defendant in that lawsuit or even a plaintiff. You want your business to be attached to that because whatever outcome from that, you don’t want them touching your personal assets.

Jim Fitzpatrick :
That’s right. Couldn’t agree more. Number five.

Dayna Thomas :
Yeah. Number five, and this is the flip side of that, right? Putting your liabilities and your business name just like your assets. So more specifically, your contracts, invoices, right? So if someone sends you a contract because you’re doing business together and they put your personal name as a party to that contract, you need to send that contract back and say, “Hey, can you please edit the party to this contract? It’s going to be my business LLC and not me personally.” A question I do get is, “How do I sign that?” So if my business is a party to the contract, do I sign my name? Yes, you do sign your name, but make sure it’s clear that it’s on behalf of the business.

Jim Fitzpatrick :
And a good way to do that, right, Danya is to put whatever your position is. So you might sign it. You know, Jim Fitzpatrick, president, or CEO, if that’s in fact what I am on that company. So that the person that’s got that document knows they’re signing as president of the company, not as Jim Fitzpatrick. Right?

Dayna Thomas :
It needs to be very clear that anywhere your name appears is on behalf of your country, your company, right? And so that just keeps it clear. That keeps it making sure that these invoices, the money that is owed is not owed by you personally, but it’s owed by your business. Again, these are five factors. Right? It’s not an exhaustive list, but overall, if you just maintain in your mind that you want to treat your business like a separate person, you can’t take that person’s money. You can’t do things without that person’s permission, then you should be [inaudible 00:14:23] track.

Jim Fitzpatrick :
It’s an alter ego, right?

Dayna Thomas :
That’s what we call it. Your alter ego.

Jim Fitzpatrick :
That’s right. That’s right. And it should be dealt with that way in every single aspect of opening up a business and for those entrepreneurs and those wantrepreneurs out there that are ready to make the first step. Now is the time to call Danya Thomas Cook, because she knows what she’s talking about. And if it’s not Danya Thomas Cook, call somebody that is an attorney and that specializes in this area. Because if you go to an attorney that his last or her last 400 cases were DUI and traffic, you’re with the wrong attorney. Okay? Because they’re going to be going through it at your expense and finding out things and learning things. All attorneys are not created equal, and they don’t know everything about everything.

Jim Fitzpatrick :
Look for those attorneys that specialize in this field. It’s why we love having you on Danya, because you get it. You get entrepreneurship, you get all that goes into the trademark law and LLCs and such. And every time you’re on, we get so many great comments that we need to bring you back on because entrepreneurs are out there with these questions that are specific to opening up a business. So I that’s my advice to the small business owners out there. Get the specialists in that area. Conversely, if you happen to get a DUI, don’t go to a small business attorney, because they don’t know that area either. Go to the ones that specialize. If you have a problem with your heart, you don’t go to an oncologist and say here. They’re going to say, “I specialize in cancers.” Well, the same happens in the legal profession as well.

Jim Fitzpatrick :
I want to thank you so much for joining us on the show. I wish I could spend all day because we have a whole list of things to get to here. But there are a lot of people out there that are on the sidelines as you know, Danya, right now going through COVID and working from home and then realizing, wow, I can really … many cases I can leave my full-time job and be a consultant and do this for a lot of other companies. And when you do that, start that company start, that brand, start because otherwise to Danya’s point, you are now working as an individual and you’re putting yourself out there if you don’t take these necessary steps to protect yourself.

Jim Fitzpatrick :
Again, I want to thank you so much for joining us. Danya Thomas Cook, who is the chief attorney at the Law Center or the Law Office, I should say of Danya Thomas. She’s a great business coach, a best-selling author and all around good person. And so thank you so much for joining us. Really appreciate it.

Dayna Thomas :
Awesome. So glad to be here. I have more coming.

Jim Fitzpatrick :
Great.

The Atlanta Small Business Network, from start-up to success, we are your go-to resource for small business news, expert advice, information, and event coverage.

Establishing your small business brand can be challenging, but there are legal mistakes that you can avoid along the way. On today’s show, we’re discussing business branding mistakes to avoid, from a legal perspective. We’re pleased to welcome Dayna Thomas Cook, entrepreneurship and entertainment attorney at The Law Office of Dayna Thomas. She is also the best-selling author of “Entrepreneur’s Guide To Building A Solid Legal Foundation.“

Transcription:

Jim Fitzpatrick: Thank you so much for joining us once again, Dayan.

Dayna Thomas Cook:
Awesome. Thank you for having me. It’s always a pleasure to be here, especially my favorite topics, business and branding.

Jim Fitzpatrick:
That’s right. As I mentioned in the opening there, a lot of mistakes can happen, and certainly they can be avoided if people know what to do. There’s so many entrepreneurs out there. I was one a number of times, where you take this ready- shoot-aim approach. Where you come up with a great idea and a great name for a company, and maybe you even put together a great logo or have one designed and figure, okay, I’m all set. No one else is out there doing this, and I’m going to take it to the public. What are a few of the common legal branding mistakes small businesses owners often make that they come into you and say, “Ah, you’re an attorney, now I need help?”

Dayna Thomas Cook:
Absolutely. I am going to cover five of those branding mistakes for businesses. I have seen all of these happen before and even some more, but I wanted to focus on some of the ones that are more common. So yes, what you said is absolutely true. For any entrepreneur that is just starting a business, it’s exciting. The first thing that an entrepreneur wants to do is pick the brand name because it’s fun, it’s meaningful and sometimes it can be easier than the rest of the entrepreneurship process. But, there is a lot of responsibility that comes with that. And so for number one, I would say, of course you should not solidify your brand name or your logo before you know if it’s available to trademark. This is the most common mistake that entrepreneurs have made. They will pick a brand name, start putting it on inventory, have launch parties, and publish it on social media and everything.

Dayna Thomas Cook:
And then they realize several months later, it could be a year later, that someone else already has a trademark for this, or they get a cease and desist letter. It’s devastating. It’s scary, it’s devastating because their brand is at jeopardy, all of the money that they have invested. If someone has a trademark before you, there’s not much that you can do. Really, it is the first to file who gets the trademark protection.

Dayna Thomas Cook:
There are some other scenarios where that won’t apply, but for the most part, if you don’t want to have any issues with your brand, be the first to file and just make sure that your name and your logo is available for trademark protection first. You can actually do something that’s called an intent to use trademark application, which means that you don’t even have to be using the name before you file your application. How awesome is that? I can think of a name or even a logo, file my application and the trademark office will reserve it for me so long as it’s not too similar to something else. And then I- a good amount of time to submit the evidence that I’m using that name. So, that’s number one.

Jim Fitzpatrick:
Well, let me stop you there. Because I know there’s some people out there that are saying, “But Dayan, I went on Google and I went all over looking for the name that I’ve chosen. I didn’t find any company at all on Google that uses the same name that I came up with. Aren’t I in the clear?”

Dayna Thomas Cook:
Absolutely not. You are not in the clear. I will say this, a Google search is necessary in the process, right? Because, even if your brand name is available to trademark on the federal level, if there is a brand out there that as soon as you put it in Google, it’s everywhere, even though they don’t have a trademark, that matters as well. But there are also some companies who are not very active online, that may have a trademark. Maybe it’s a older company that when they weren’t using online or social media as much. So no, your Google search will not put you in the clear. The federal trademark protection, not even State trademark protection, federal trademark protection is what you’d need to really not have to look over your shoulder.

Jim Fitzpatrick:
Right. Okay. Move on to the next one.

Dayna Thomas Cook:
Sure. Number two. Thinking that filing your business documents with the Secretary of State is going to protect your brand name.

Jim Fitzpatrick:
Very common mistake.

Dayna Thomas Cook:
It is. People think that, okay, well I got my LLC or my corporation in this name, so that means that I own it, right? No, it doesn’t mean that you own it. Someone else can use that same exact name, trademark that same exact name and get a federal registration for it. The only thing that filing that name with the Secretary of State will do is that another company can’t file or have a business entity in Georgia or whatever state you’re in, under that same name. However, they can still trademark it, meaning that they can use that name for their brand, even though their LLC name is something different. So your LLC name and your brand name do not have to be the same. Just because you file your LLC or your corporation, that does not give you any trademark rights or any rights to own that name.

Jim Fitzpatrick:
Right. Absolutely.

Dayna Thomas Cook:
I can see that you’ve heard and seen that one before.

Jim Fitzpatrick:
I did all of these things. As a young entrepreneur, I ran out and made all of these mistakes and I know exactly what you’re talking about. It cost me a lot of money to reverse all of that because I’ve got to hire a very talented attorney like you, to get me out of the hot water and then also steer me into the correct waters that I should be in without any legal problems. So I’ve made these mistakes.

Dayna Thomas Cook:
Yeah. Hence why we’re here now, to help others. Number three is imitating famous brands. I know that it can be very tempting to imitate a famous brand because it sounds cool, it’s almost like this, but it’s not this, right? There’s some, immediately some type of feeling associate or some type of recognition. But let me tell you how much those famous brands protect their trademarks. They get more trademark protection if it’s a famous brand. It extends beyond what may just be in their trademark application. They have lawyers and people round the clock that are looking through trademark applications to see if there’s anything that is even somewhat similar.

Dayna Thomas Cook:
Jim, they do not play about their brands. I’ve had a situation with a client. She did an imitation of the WB for Warner Brothers in the shield, and she put her own initials there, and it was different services. It was completely different services. Although we did get past the trademark examiner, because the products and the services were very different, she wasn’t offering entertainment or clothing. It was something very different. There’s a stage in the trademark process where Warner Brothers can oppose the application. Usually oppositions come from these famous brands because they protect it strongly. I know it’s tempting. Yeah. I know it’s tempting to do it. It’s cool, looks fun, But, come up with something unique.

Jim Fitzpatrick:
I knew of a situation where somebody used the green logo for Starbucks and the circle that said Starbucks. Obviously, it’s a world renowned brand there. So they changed the name of the company to The Great Coffee Company. They put it in the same font with the same color green in the circle. Of course the name wasn’t even close to Starbucks, it was The Great Coffee Company. Starbucks came in and said, no, it looks too similar to what our brand looks like, and you’re also going after the same market of people. So they said, you got to change your entire branding, which by now they already had even a couple of stores. They had their wall decorated, the logo out there. I think they even had some apparel with the logo on there and Starbucks said, no, you got to change it all. And they won that case, Starbucks itself.

Dayna Thomas Cook:
I could bet that even if that person that you’re talking about, that new coffee company, even if they were selling sneakers, Starbucks would still not allowed it.

Jim Fitzpatrick:
That’s right. That’s a very good point. There was also a famous case with, somebody came up with a furniture company that said, Furniture or Chairs R Us. Right. With a reverse R. And of course, Toys “R” Us had a trademark on that and said, “No, no, you’re leading the public to believe that this is a Toys “R” Us company by saying Chair R Us”, with the reversed R, and what have you. Anything “R” Us, they had a trademark on.

Dayna Thomas Cook:
Yeah. If it’s not specifically filed, they will oppose your application and drag you through court. So avoid that. Number four…

Jim Fitzpatrick:
We might add too that for the entrepreneurs and the business owners that are listening to this, it’s much better to sit down with Dayan or somebody, if you don’t have a Dayan available, somebody like Dayan, that’s got the knowledge in this area and spend the necessary money. It’s not a whole lot of money, but spend the necessary money up front. Don’t wait for the letter, because by then it’s too late and it could cost you literally thousands of dollars to get out of this. I just want to interject that for people that are listening to say, “Hey, you better be taking notes right now.” But go ahead, go to the next one. Yeah.

Dayna Thomas Cook:
Sure, trademarks last forever, so it is worth the investment. Number four, not owning the copyright in your logo. I know we’ve talked about trademark and a lot of people get trademark and copyright confused, right? Let’s settle that now. Copyright protects works of arts or authorship that are fixed in a tangible medium. Fixed in a tangible medium, that just means if you can touch it, it’s tangible. If I sing a song, it’s not copyright protectable. Once I record a song and I’m holding it in the recorder, it’s copyright protectable. Same thing as it applies to logos. Once you give your, even if you give your logo designer the idea for your logo, and the logo designer creates that logo for you, unless you have a contract that says that the copyright is being transferred from the designer to you or your company, or it’s a work for hire, then that logo designer owns your logo.

Dayna Thomas Cook:
Even if you told him exactly what to do, what you’re contributing is not copyright protectable because it’s just ideas. It’s words, it’s not fixing a tangible medium. Your designer, who’s actually creating it, where they’re drawing it, doing it on the computer, they own the copyright to that logo. Only a contract that is signed by the logo designer can transfer the copyright in that logo to you or your company. So that’s important because as we are all very optimistic about our brands and our businesses, we want to take it as far as possible, and be million and billion dollar brands. Guess what, when your logo is all over magazines and billboards, and making all this money, I bet you will get a letter from that logo designer, saying that the- copyright.

Jim Fitzpatrick:
There’s been a number of cases where people, all of a sudden get a bill at the end of the second year that says, hey, did you want to lease? Do you want to go ahead and lease the logo rights again for the upcoming year? And people are like, what do you mean lease the logo rights? Oh yeah, you did. I only gave you that for one year. That was in the fine print when you hired me to do the logo. I said I’d do the logo, and in the fine print I gave you rights to it. Again, this is an area that you want to run it by your attorney to say, I’ve had this work done by a logo designer. Do I have full rights to this logo? Even though somebody goes, oh no, no, you’ve got full rights to it, but maybe it’s only for a year or three years, and then they want to renew that with you. That can be very, very costly.

Dayna Thomas Cook:
Absolutely. If there’s no contract, you have no rights. The most that you may have is an implied license, because if the logo designer is giving the logo to you to use for your business, it’s implying that you can use it for your business, but that can be revoked at any time. All right? So make sure you own the copyright to your logo. Number five, not having a written agreement with your business partner, especially if you don’t have a trademark. The reason why that is important for your brand, I have come across this situation multiple times, where there’s business partners. At first, everything is going great, right. They’re using the same brand. They’re using the same logo. There is no contract. And then there’s a dispute.

Dayna Thomas Cook:
They split and both of them are using the same logo, or the same brand, selling the same services. And it’s like, when there’s no contract, you can’t say one person, and there’s no trademark, one person owns the rights more than the other. It gets very messy. Make sure that you have a contract with your business partner and that it speaks to, if this person wants to leave, what’s happening with this brand. Do they take the brand with them? Does the brand stay? Does it have to be, you’re bought out? Are we sharing it? What the situation is? And so, if you have an LLC, you can put that in your operating agreement. If you have a corporation, you can do it with your by-laws or your shareholders’ agreement and then there’s different types like joint ventures and things like that. Make sure you account for your brand with your partner.

Jim Fitzpatrick:
Absolutely. In fact, Dayan, I would love to have you come back when we’ve got a little bit more time, and the show would really just focus on the importance of having an agreement with your partner and, what are the elements that need to go into that. Because I think a lot of people just think, no… And even if it’s your brother, your sister, whoever it might be, it doesn’t really matter. You’ve got to have that agreement and you have to address everything that you can think about, and put it in that agreement, because these things are going to come up for sure. And if it’s not in an agreement, you could have one heck of a messy business relationship with your partner who you really liked going into this new venture. Right?

Jim Fitzpatrick:
Friendships and partnerships break up because of the business. And it was the one, “I thought we were going to do this, well no, I thought we were going to do this, and how come we always do it your way and not my way and how come…?” All of these things come up, or somebody that says we have to take out a loan for the company.

Jim Fitzpatrick:
When one partner says, all right, let’s sign, the bank says, we need your personal guarantees. One partner says yes, and the other one is, I’m not putting my personal guarantee on that. Well, now what do you do with the company? Do you not get the loan? Do you get the loan? All of these things have to be addressed in these. Even though you’re not facing those issues right now, I can assure you, you will be one day, if the business lasts any longer than a day. Right?

Dayna Thomas Cook:
Absolutely. That is absolutely true. And what you said about, it doesn’t matter how close you are in the beginning, because one of the situations that I was thinking about what this brand are between cousins. Cousins who are business partners, and then they split and both are literally pushing the same brand and they both have a big following. And so, there’s an issue there. So thanks so much, Jim. I love the co-sign on all five of my common mistakes. Appreciate that. It’s always a pleasure to chat with you and your audiences.

Jim Fitzpatrick:
Yeah likewise. For those of you that are listening to us, there’s a great case between Adidas and Puma, the sneaker companies. Adidas and Puma, they were partners. They were relatives actually. I think they might’ve been brothers. Adidas got started, lo and behold the partnership falls apart, the other brother goes out and starts Puma, and they’re competing brands and they always have been, but it’s an amazing story. A lot can be learned from stories like that, because I don’t care how close you are, if you don’t address these issues that we’ll talk about by the way on the next show, you’re going to be in trouble. Again, Dayan Thomas Cook, thank you so much for joining us here on the Atlanta Small Business show. I know that our entrepreneurs and small business owners get so much out of your visit here because every time you’re on, we get a ton of views. So, thank you for all your contribution.

Dayna Thomas Cook:
I love that. Thank you so much. I will be here next time.

Jim Fitzpatrick:
Okay. Take care.

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