1
00:00:00,690 --> 00:00:11,750
Filip Valica: Hey, everyone. Welcome to the Product Startup Podcast, podcast that helps bring your product idea to life by chatting with successful inventors, product designers, and other industry professionals. This podcast is run by Mako Design

2
00:00:11,750 --> 00:00:24,930
Filip Valica: + Invent, and hosted by Filip Valica. Our goal here is to get to the bottom of what makes a product successful, from initial idea to putting your product on the shelf. We're taking you step by step to build a functional product and scale your product business. Now onto the show.

3
00:00:26,640 --> 00:00:37,080
Filip Valica: Product Startup, Episode 9. Welcome to the Product Startup Podcast. helping you turn ideas into successful products step by step. With your host,

4
00:00:38,260 --> 00:00:52,260
Filip Valica: Filip Valica. Hi, everyone, and welcome to the Product Startup Podcast. In this last episode, we heard from Doug Marshall, the founder of the Game Face Company. He creates temporary face tattoos and masks that peel off using FDA-approved materials made in the U.S.

5
00:00:53,040 --> 00:01:06,420
Filip Valica: Doug talked to us about the behind-the-scenes details of Shark Tank and his partnership with Lori Greiner and Mark Cuban. Before I get into today's episode, I wanted to thank RJBarrie. J. Man 83, who left the review in iTunes. Very relevant for physical product startups.

6
00:01:06,660 --> 00:01:21,600
Filip Valica: Great podcast for anyone starting a business around a physical product. Philip gets into helpful tactical details with guests that are hard to find anywhere else. Keep it up. Hey, thanks a lot, RJ Man 83. I don't get a lot of feedback on the show, so I really appreciate your thoughts.

7
00:01:22,640 --> 00:01:30,280
Filip Valica: And now on to the show. In today's episode, I'm joined by Gordon Firemark, an attorney devoted to representing creative and business people in the media.

8
00:01:30,280 --> 00:01:41,740
Filip Valica: He's the producer and host of Entertainment Law Update podcast, and we talk about the many legal issues faced by small business owners, including non-disclosure agreements and contracts, implied endorsements and

9
00:01:41,740 --> 00:01:48,260
Filip Valica: fair use in advertising, trade secrets, patents, trademarks, and copyrights. So, on to the show.

10
00:01:49,910 --> 00:02:02,020
Gordon Firemark: Hi, Gordon. Thanks for coming on the show today. Philip, hi. Thanks for having me. So can you tell everybody a little bit about yourself on your experience? Well, I am by practice, by profession, I should say, I am an attorney.

11
00:02:02,400 --> 00:02:11,800
Gordon Firemark: I work in the entertainment industry on the transactional side, which means the only time I ever go to court is when I'm testifying as a witness or something like or a party in

12
00:02:11,800 --> 00:02:24,160
Gordon Firemark: a lawsuit, I suppose. Fortunately, that hasn't happened. I help folks in the, in and around the entertainment industries with their businesses. And that is a very creative business, of

13
00:02:24,160 --> 00:02:27,520
Gordon Firemark: course. And so that puts me, you know,

14
00:02:28,560 --> 00:02:39,020
Gordon Firemark: at the nexus of things like intellectual property and contracts and also just a very crazy industry. And I love to help creative people

15
00:02:39,020 --> 00:02:52,540
Gordon Firemark: with the business sides of their thing and help business folks with staying in touch with their creativity. That's right. And you've got a podcast yourself. I have several podcasts. The entertainment law update is the one where I and another lawyer do a monthly roundup of

16
00:02:53,340 --> 00:03:05,320
Gordon Firemark: legal stories and news around the entertainment industry. I also have an asked and answered podcast, which is really just the audio track of a YouTube channel that I have that features me answering

17
00:03:05,320 --> 00:03:08,020
Filip Valica: common questions that come from my listeners and viewers.

18
00:03:08,880 --> 00:03:22,820
Filip Valica: And then there's one targeted at lawyers who want to use podcasting as a marketing tool for their businesses called the Law Podcasting Podcasting. Great. Well, we'll definitely link to those in the show notes and we can talk about near the end of the show. Awesome. Well, let's start with something really Basic.

19
00:03:24,220 --> 00:03:33,180
Filip Valica: When I talk to people that are building products for the first time, usually they're worried about sharing their ideas and they say, should I sign an NDA or will you sign this NDA

20
00:03:33,180 --> 00:03:47,900
Gordon Firemark: with me? My experience as an engineer is that the NDAs aren't really worth much because they're tough to enforce because it's hard to prove that someone actually violated the terms of an NDA and broke confidentiality. What is your perspective on that?

21
00:03:48,360 --> 00:03:58,000
Gordon Firemark: Well, you know, NDAs are, they have some value, but I think you're right. Much of the time it comes down to a question of, does the evidence support a claim that there was a breach?

22
00:03:58,600 --> 00:04:09,620
Gordon Firemark: And more, I think the real value of an NDA is that it formalizes the relationship and puts everybody on notice that, hey, we're serious about our stuff here. So don't steal it. Don't, don't be casual about it.

23
00:04:10,460 --> 00:04:17,260
Gordon Firemark: Actually, in the entertainment industry, ideas are the, you know, that's the way business is transacted. And so,

24
00:04:18,340 --> 00:04:32,860
Gordon Firemark: interestingly, it's very rare to see formal non-disclosure agreements in the entertainment industry. Part of the reason is the studios and the production companies and producers have the bargaining power to just say, no, give us your idea or not, but we're not going to sign anything.

25
00:04:33,260 --> 00:04:44,480
Gordon Firemark: And in fact, many of them use the inverse, which is a submission agreement that basically says, you're submitting it to us, we're going to take a look. We may have something almost identical already in development, so we're not making you any promises whatsoever.

26
00:04:45,340 --> 00:04:50,420
Gordon Firemark: And even in that circumstance, people generally intend to do right by each other.

27
00:04:51,080 --> 00:05:05,780
Filip Valica: And the real key in protecting yourself is only do business with people, only contemplate doing business with people you feel you can trust and who have a decent reputation. If somebody's a slime ball to others, they're going to be a slime ball to you too. Right. Absolutely.

28
00:05:06,060 --> 00:05:13,980
Filip Valica: And maybe even if you approach the relationship in a antagonistic way, then that's kind of setting the stage for what you expect to happen. That's true.

29
00:05:14,480 --> 00:05:24,500
Gordon Firemark: No, that's interesting. I've also heard that many investors on the product development or on the startup side won't sign an NDA with you because they don't want to be shackled to or maybe

30
00:05:24,500 --> 00:05:34,020
Gordon Firemark: opened up to a lawsuit in the future if a piece of your idea gets incorporated into something else unintentionally just because it's a part of their consciousness and now it's turned into something.

31
00:05:34,120 --> 00:05:45,040
Gordon Firemark: That's so true. And it's the same thing in the movie business. The ideas are constantly in play and in motion. And it isn't at all unheard of to have the same idea, material.

32
00:05:45,060 --> 00:05:55,260
Gordon Firemark: and be expressed in a couple of different ways almost simultaneously you may remember maybe you know you're younger than I but you know about 20 25 years ago there were three volcano movies the same summer

33
00:05:56,210 --> 00:06:09,690
Filip Valica: where the volcano is blowing up under the city basically and people are running for their lives three separate movies with different storylines but the premise was the same and you know there was nobody's fault it just was the way it came out the answer is you know do business with reputable people

34
00:06:09,690 --> 00:06:18,890
Filip Valica: and be good to one another yeah no and I totally agree with that I personally try to not walk into any relationship and signing an agreement from the get-go.

35
00:06:18,970 --> 00:06:31,110
Gordon Firemark: Maybe the next step, whenever you're working with a supplier or someone that's a partner that you're trying to do business with is maybe need to write something down if you're agreeing to terms or there's an exchange in money.

36
00:06:31,150 --> 00:06:42,830
Gordon Firemark: What do you think is the point that people should look to put something down on paper? Well, you know, Phil, the contracts are really very easy to make. And we make them all the time every day and we don't even think about it.

37
00:06:42,830 --> 00:06:57,710
Gordon Firemark: And so sometimes we make it a bigger deal than it needs to be in our minds when we start getting into a business relationship. Nowadays, we do a lot of things back and forth by email where I'll say, hey, you know, what's your price for X, Y, Z? And you say, it's this much. I go, oh, that's too much. How about this?

38
00:06:58,170 --> 00:07:12,490
Gordon Firemark: And, you know, you're having a negotiation. And when everybody says, okay, done, we have a contract. We have an agreement. Now, it's not a formal memorialization of the terms of the deal in a single document, you know, stapled together and signed in Blue Link.

39
00:07:12,830 --> 00:07:26,190
Gordon Firemark: but we still have a contract. There are only a certain handful of kinds of contracts that must be in writing in a signed document like I described. The rest of the time, we rely on these informal relationships, these informal things,

40
00:07:26,430 --> 00:07:41,120
Gordon Firemark: and those emails become the evidence if there is ever a breach of contract. Now, with all that said, I do believe that good contracts make for good business partners, just like good fences make good neighbors. It sets out the boundaries and the expectations of the partners.

41
00:07:41,120 --> 00:07:55,080
Gordon Firemark: And so it is worthwhile to sit down and really think about all of the parameters of a deal. And that's where, frankly, using a lawyer sometimes is beneficial because, let's face it, the lawyers are doing this every day. And you may be doing this kind of a contract once every six years.

42
00:07:56,760 --> 00:08:06,620
Gordon Firemark: So reaching out to somebody who has the frame of reference to think about the terms that might otherwise be overlooked and get it down in a document.

43
00:08:06,640 --> 00:08:16,480
Filip Valica: But really, most of the time, we can write our own simple contracts, you know. what's the price what's the what's the service being rendered or the goods being transferred and

44
00:08:16,480 --> 00:08:28,320
Filip Valica: when and uh you know answer the who what where when how and why and you've got a contract yet no and that totally makes sense i actually remember so in a prior life i did web design web development

45
00:08:28,320 --> 00:08:39,680
Filip Valica: while i was in college and i took on a client as a freelancer and we had back and forth through email and everything was documented one thing led to another we had a falling out i went to small

46
00:08:39,680 --> 00:08:51,060
Gordon Firemark: claims court to sue for the wages passed due. And the judge says, well, I'm not sure that this contract is enforceable. There wasn't a little statement on there that said, this person has the

47
00:08:51,060 --> 00:09:04,760
Gordon Firemark: authority to make these types of decisions. Oh, it's interesting. I did get a partial award, but I didn't get the full funds. At the end of the day, there were some technicalities that definitely bit me. Well, you raise a really interesting point. And that is also that the

48
00:09:04,760 --> 00:09:10,640
Gordon Firemark: The law will sometimes imply a contract where there is no written agreement.

49
00:09:10,960 --> 00:09:25,560
Filip Valica: You know, there are certain things that we do that just by our course of action, our course of business, establishes that, you know, it's reasonable to expect, or for the other side to have expected that there would be compensation or that there would be a quid pro quo of some

50
00:09:25,560 --> 00:09:34,740
Filip Valica: sort. And so, you know, implied contracts do exist and oral contracts exist as well. Very interesting. So let's move on from that. Then, you know, we've signed the contract.

51
00:09:34,760 --> 00:09:46,260
Gordon Firemark: contract. We're continuing to do business together. Let's go on one path that I think that you've got a lot of experience on. We're looking to advertise a product or service and maybe either

52
00:09:46,260 --> 00:09:55,260
Gordon Firemark: directly or indirectly imply that we have sponsorship of a celebrity or someone that is well known. What is the current case law for that?

53
00:09:55,440 --> 00:10:09,060
Gordon Firemark: Well, I'm not going to cite you particular cases. Sure. I think our audience would be bored and fall asleep very quickly. But, you know, the basic rule is, and this is true of, whether it's a celebrity or a brand relationship or something like that, if you, if you

54
00:10:09,540 --> 00:10:21,160
Gordon Firemark: if you create the, the perception in the audience's mind that there's an affiliation, there better really be an affiliation. A false designation of origin, like, you know, if I say,

55
00:10:22,340 --> 00:10:32,300
Gordon Firemark: you know, if I call my podcast, the Coca-Cola podcast and Coca-Cola has nothing to do it, they're going to sue me for trademark infringement or unfair competition or something because I'm misusing

56
00:10:32,300 --> 00:10:42,900
Gordon Firemark: their brand. And the same is true of a celebrity endorsement. If you imply an endorsement and that doesn't exist, you're essentially trading on that person's, the value of that person's name

57
00:10:42,900 --> 00:10:47,700
Gordon Firemark: to enhance the value of your brand. And so that is not okay.

58
00:10:48,620 --> 00:10:50,960
Filip Valica: And this varies from state to state,

59
00:10:51,080 --> 00:11:05,560
Gordon Firemark: but celebrities do have a right. And in fact, anybody in California, for example, has a right to control commercial use of their name or likeness. Now, that's not to say you can't talk about somebody by name but if you if you create the implication that there's that endorsement or if you

60
00:11:05,560 --> 00:11:20,470
Gordon Firemark: say sponsored by or brought to you by you know those kinds of things that's where you run into real trouble understood so if let's say we're doing a product photo shoot and there's a can of coke in the background do you need to blur that out you know the best practice would be yes blur it out

61
00:11:20,470 --> 00:11:28,120
Gordon Firemark: or or better yet excluded from the shot and you know again but you know if you were shooting a video

62
00:11:28,120 --> 00:11:36,840
Gordon Firemark: and, you know, in your garage and you happen to have a bunch of old Coca-Cola signs and products and, you know, those kinds of things and use sort of a collector, that,

63
00:11:37,020 --> 00:11:46,220
Filip Valica: you know, you're not using it as your brand. It's just a, it's just a referential kind of use of the thing, what we call a nominative fair use of the brand of the

64
00:11:46,220 --> 00:11:58,100
Gordon Firemark: trademark. And really, you know, when we talk about brands, we're talking about trademarks and service marks. And yeah, you just, you know, you don't want to create any confusion in the minds of the public, of the consumers, as to whether there's.

65
00:11:58,120 --> 00:12:00,220
Filip Valica: an association or affiliation.

66
00:12:00,420 --> 00:12:12,760
Gordon Firemark: Makes sense. So there's, I guess, some understood amount of fair use that you can get away with before it starts, you start to imply that you're associated with that brand. Yeah, well, so fair use is actually a copyright concept that comes out of the First Amendment

67
00:12:12,760 --> 00:12:21,540
Gordon Firemark: and free speech and stuff like that. But the same principle of free speech does apply when we're using trademarks. Again, as long as we're not using it in a confusing way to

68
00:12:22,360 --> 00:12:36,780
Gordon Firemark: suggest some association. Is there any leeway given to you if you're not making money? You know, this is one of the most common sort of fallacies that people, again, in the copyright context as well as trademark, come up with is they somehow think that because they're not

69
00:12:36,780 --> 00:12:45,600
Gordon Firemark: earning any money from it, there's no harm being done to the brand or to the person or to the material that's being taken and used.

70
00:12:45,700 --> 00:12:48,240
Filip Valica: And the fact of it is that is not,

71
00:12:49,370 --> 00:13:02,350
Filip Valica: it isn't, it isn't a major factor. Let's put it that way. In the context of copyright fair use, the nature of the use is a factor. But there's a, a bunch of other factors that have to be considered as well. No, that's very interesting.

72
00:13:02,650 --> 00:13:16,550
Filip Valica: So, no, I appreciate you dispelling some of these myths. So as we get across them, feel free to jump in. It makes my job a lot easier when I have clients come in and they know what I'm, they know the rules already. Absolutely. No, I'm a huge fan of educating your client base.

73
00:13:16,730 --> 00:13:28,770
Filip Valica: The last couple of companies that I worked at, we developed products and it was probably half the effort that we spent was to educate our current clients. You touched on trade secrets a little bit. But can you get into a little bit more detail?

74
00:13:29,050 --> 00:13:41,230
Filip Valica: Because usually the next question that I get asked is, when should I patent and should I patent or should it be a trade secret? The advice that I usually give personally, and I'll admit that I'm a bit jaded on the patent

75
00:13:41,230 --> 00:13:48,590
Filip Valica: system being an engineer, there's very few ideas that I would patent. I feel that there's so many products out there on the market that aren't patented.

76
00:13:50,200 --> 00:13:55,560
Gordon Firemark: There's better ways of competing, whether it's through customer service or through marketing or something like that.

77
00:13:56,500 --> 00:14:02,840
Gordon Firemark: If anything, I would maybe look at trade secrets or, you know, keeping your formula for whatever it is or your manufacturing method,

78
00:14:03,920 --> 00:14:06,080
Gordon Firemark: a guarded secret over a patent. But,

79
00:14:07,020 --> 00:14:21,240
Gordon Firemark: of course, everything is case by case. And if you've got an idea that's market changing, if it's something that's going to make all the other competitors a scramble, obviously that's something that you need a patent, but we have so many patents out now that I feel are kind of frivolous.

80
00:14:21,240 --> 00:14:34,140
Gordon Firemark: Well, you know, I think it's probably worthwhile for us to take a step back and and take a look at the, at the spectrum of all these components of intellectual property of how everything fits together so that, so that we're really clear what we're talking about.

81
00:14:34,140 --> 00:14:46,680
Gordon Firemark: trade secret is really the whole reason that we talk about non-disclosure agreements, because the basic rule is if you've got an idea, which is generally not something that can be protected by any other form of intellectual property,

82
00:14:47,740 --> 00:14:59,520
Gordon Firemark: the only way to really keep it from being used by others is to keep it to yourself, keep it secret, or have an agreement with the people you share it with that they will keep it secret and they won't use it for their own purposes

83
00:14:59,520 --> 00:15:14,500
Gordon Firemark: without making some kind of a financial arrangement with you or a partnership or, you know, or whatever. And so that's the basis for, if you're going to submit something to somebody, you get them to promise that they're not going to steal it, right? So that's trade secrecy.

84
00:15:14,720 --> 00:15:25,360
Gordon Firemark: Keep it secret. And this is, you know, the formula for classic Coca-Cola, the 11 herbs and spices recipe for Kentucky Fried Chicken. These are trade secrets.

85
00:15:27,200 --> 00:15:31,240
Gordon Firemark: There's other examples of these that come up. with some frequency, but, you know,

86
00:15:32,840 --> 00:15:45,820
Gordon Firemark: so anybody who's going to have access to that has to acknowledge, basically, if they're keeping it secret. Now, patent law protects inventions. So it's not just the idea, but it's the actual implemented iteration of the idea.

87
00:15:46,760 --> 00:16:00,480
Gordon Firemark: And inventions can be processes and systems and formula and things. So a formula for Coke or something like that might be if there's a particular way it has to be put together in sequence to make it.

88
00:16:00,540 --> 00:16:03,980
Gordon Firemark: to Coca-Cola and not explode in your face or something like that.

89
00:16:06,020 --> 00:16:17,740
Gordon Firemark: And I sort of agree with you. I think the whole system is susceptible of abuse. And we saw a case in actually a podcast patent that was a problem a year or two ago

90
00:16:17,740 --> 00:16:30,420
Gordon Firemark: where the owner of this patent for a serialized delivery of episodic content by RSS feed, you know, claimed a patent on all of this. And everybody was worried that we were going to start having to pay royalty.

91
00:16:30,540 --> 00:16:41,480
Gordon Firemark: to this company and whatever didn't materialize and we're all good but um so you know susceptible of abuse there are patent trolls who sort of grab stuff up and claim patents you know the goodness is it's

92
00:16:41,480 --> 00:16:53,600
Gordon Firemark: pretty expensive to file a patent and and uh so there is a bit of a barrier to entry there's got to be something there essentially um copyright is the other sort of end of the spectrum where you know

93
00:16:54,600 --> 00:17:05,560
Gordon Firemark: again doesn't cover ideas it covers the expression of ideas so the way you express the idea of boy meets girl and they go off and have a life together and the way I do are two very different

94
00:17:05,560 --> 00:17:16,260
Gordon Firemark: stories and so we each could have a copyright but that neither of us can stop someone else from coming along and telling a boy meets girl story so there you have an example that and facts are also not

95
00:17:16,260 --> 00:17:30,320
Gordon Firemark: protected so telling a story about real events there have been how many how many different movies telling the story of the gunfight at the okay corral for example right no that's interesting and then just to fill out the the gap trademark covers the

96
00:17:31,060 --> 00:17:37,740
Gordon Firemark: the unique identifier of brand, so the word or mark or symbol that is distinctive and becomes

97
00:17:37,740 --> 00:17:50,640
Filip Valica: associated in the minds of the public with a particular brand. So if I say box of crackers with a red triangle in the upper corner, you know what brand I'm talking about without me ever saying the name, do you? Right. Don't you? Nabisco, just for those who are wondering.

98
00:17:52,380 --> 00:18:02,380
Filip Valica: Or I say, you know, the most famous kind of chocolate cookie with a white cream filling. And we know it's Oreo, which happens to be a Nabisco brand. So there's two brands, two trademarks right

99
00:18:02,380 --> 00:18:14,300
Gordon Firemark: there. So it has to be a distinctive identifier of goods or services, not generic or descriptive, but distinctive. So that's the sort of spectrum of the way things get protected for intellectual

100
00:18:14,300 --> 00:18:28,200
Gordon Firemark: property. That's very interesting. So I've gone through some of these myself. What I advise people to do is if they don't know if they want to seek patent protection to go ahead and apply for provisional patent. And that way, at least they have a year to test out the market.

101
00:18:29,300 --> 00:18:43,100
Gordon Firemark: bare fruit, then you're able to at least use some of the money that you should be getting within that year to cover your cost of patenting. But at the onset, whenever you create your brand or your company, there are probably some legal protections that you should have in place.

102
00:18:43,520 --> 00:18:56,300
Gordon Firemark: Well, yeah, so for anybody who's starting up, I think the fundamentals are figure out your financial structure and your business structure, make sure you have a sound entity type

103
00:18:56,300 --> 00:19:07,240
Gordon Firemark: in place or an alternative, which could be insurance, to protect yourself from liability. If something blows up with the product, you don't want them coming along and taking your house away from you, right? Product liability insurance.

104
00:19:07,540 --> 00:19:22,040
Gordon Firemark: Well, yeah, but also maybe a corporation or an LLC to insulate and hold that product and all of the property related to that product. So, God forbid, you know, someone gets hurt or needs to sue, they sue the company and not

105
00:19:22,040 --> 00:19:30,080
Gordon Firemark: you individually and your family and your house and things are safe. So there's the entity level, form an LLC, form a corporation, whatever.

106
00:19:30,560 --> 00:19:42,040
Filip Valica: The nice thing about entities is you can also use them as a financial vehicle by selling membership interests of an LLC or stock in the corporation to investors who would essentially fund some

107
00:19:42,040 --> 00:19:47,300
Gordon Firemark: of the development of startup cost, whatever. Then you have partners and people to answer to, of course. So that's the flip side.

108
00:19:48,360 --> 00:19:58,140
Gordon Firemark: And these entities also give you some sort of street cred in a sense. not a lot these days but you know that counts and you go open bank accounts and all that and you buy

109
00:19:58,140 --> 00:20:11,880
Gordon Firemark: insurance in the name of the company okay so now you're building a business the next step is to evaluate the assets that you're creating and decide patent trademark copyright trade secret

110
00:20:11,880 --> 00:20:25,600
Gordon Firemark: what else can we do and how do we make a business all of the above yeah well probably so out of those legal protections that you mentioned, what do you think is something that is feasible to do on

111
00:20:25,600 --> 00:20:39,920
Gordon Firemark: your own? And when do you need a call and ask for help? You know, as a lawyer, I have a vested interest in helping people do these things. And so I will say, you know, I think you're always better off having a professional help you. But if money is an object and it, who, for who, you know,

112
00:20:40,000 --> 00:20:50,020
Gordon Firemark: for most of us it is, let's face it, I think that, you know, you can form a corporation using an online service that does the filings for you and things like that. Now, it's going to be a very plain vanilla,

113
00:20:50,020 --> 00:21:01,100
Gordon Firemark: normal corporation and if there's anything unusual either about your your your product category the kind of you know if you're making a movie you don't use a plain vanilla corporation because there's

114
00:21:01,100 --> 00:21:15,900
Gordon Firemark: a lot about making movies that's sort of unique and so that's my business you know if you're making you know if you've invented a better mouse trap you're probably okay starting a basic corporation using one of these online services and then you know as you grow that can be

115
00:21:15,900 --> 00:21:22,490
Gordon Firemark: adjusted and fixed if there's any problems um as far as is copyrights or do-it-yourself kind of a thing.

116
00:21:22,770 --> 00:21:33,390
Filip Valica: If you create, you know, write a book, create a video, film, music, you know, those kinds of things. Or if you, let's say you have a particular instruction manual that you want to protect

117
00:21:33,390 --> 00:21:46,950
Gordon Firemark: so people can't use whatever it is in a different way, all of that can be done yourself. You go to copyright.gov and you, it's a terribly ugly and disorganized web form, but

118
00:21:46,950 --> 00:21:51,050
Gordon Firemark: it can be done by yourself if you're willing to spend the time. The good news is,

119
00:21:51,930 --> 00:21:57,150
Gordon Firemark: you know, it's not that expensive to hire a professional to that stuff because it's relatively quick and easy.

120
00:21:58,290 --> 00:22:02,670
Gordon Firemark: Trademarks a little further on the spectrum of you sort of have to know what you're doing.

121
00:22:03,570 --> 00:22:16,290
Gordon Firemark: And so those of us that do it every day or every week kind of, you know, there's an economy of scale there. But a smart person who's got the time and not the cash, you know, go ahead and give it a try. Can you talk a little bit about that?

122
00:22:16,290 --> 00:22:26,310
Gordon Firemark: because when I went through to file a trademark, it asked if it was in use. And that was a bit awkward because I'm filing it when I'm launching my brand. Should I say that it's in use?

123
00:22:26,550 --> 00:22:37,070
Gordon Firemark: Because technically it is online somewhere. So in order to be entitled to the protection of trademark law, you have to have your wordmark or your brand, your logo, those things, have to be in

124
00:22:37,070 --> 00:22:51,410
Gordon Firemark: use in commerce, actually in interstate commerce. So fortunately nowadays, putting something up on the as an advertisement for a product or service pretty much counts as in use. Now, if the product hasn't officially launched yet, but you've got a website saying coming in

125
00:22:51,410 --> 00:23:01,690
Gordon Firemark: November, you know, whatever, then the trademark office might take issue with whether it's really in use or not. But there is actually an opportunity to get an intent to use trademark

126
00:23:01,690 --> 00:23:15,450
Filip Valica: as well, which basically just sort of gets you into the system and then you have six months after they approve it to prove you're now using it. And then there's actually renewals and things. So that's sort of what we recommend when it's not officially in the marketplace

127
00:23:15,450 --> 00:23:19,830
Filip Valica: available for sale yet. So it's called an intent to use application.

128
00:23:20,910 --> 00:23:33,170
Filip Valica: So don't let that stop you. But knowing which box to check is the challenge. And the trademark office, to their credit, has done a really good job of making instructional videos and help documents

129
00:23:33,170 --> 00:23:36,690
Filip Valica: and things like that that you can, you know, you can navigate through the whole thing.

130
00:23:36,690 --> 00:23:51,590
Gordon Firemark: But one of the problems is that their form times out before you finish watching the video. So you then have to go back and so there is a way to save your work periodically. And if you hit a stumbling block, I would recommend save it, download it and get your information and then proceed.

131
00:23:52,270 --> 00:23:53,630
Gordon Firemark: So great. No, that makes sense.

132
00:23:53,870 --> 00:24:08,150
Filip Valica: And for patents, I think you need a patent lawyer. No, I completely agree with that. So as an engineer, I've been hired by companies to work and design around existing patents, basically. And that destroyed my trust in the patent system.

133
00:24:09,590 --> 00:24:22,470
Gordon Firemark: Between that and some of the frivolous patents that I've had to work around that are arguably facts that have been patented, you know, this law of physics underwater, that stuff has just super frustrated me.

134
00:24:22,670 --> 00:24:37,350
Gordon Firemark: And at least as an engineer, as someone that develops products, and I feel like the people that are really winning out in these types of patent wars, so to speak, are the ones that hold the most patents. Yeah, yeah. Well, that the patent becomes the asset that they're leveraging to earn money.

135
00:24:37,370 --> 00:24:52,170
Gordon Firemark: They don't have to have a lot of licensees paying them a little bit of money, and they've got, you know, a revenue stream that can be leveraged. Would you still advise a small-time inventor to go ahead and grab a patent?

136
00:24:52,530 --> 00:25:05,990
Gordon Firemark: Sometimes people don't have the ability to enforce it or protect it. Some people will pour their last $10,000 into getting that patent. Yeah. What is that right point viable for me to get a patent versus maybe I really need

137
00:25:05,990 --> 00:25:16,990
Gordon Firemark: to focus on proving that I have a business or a product? You know, I think that's a really great question, and I don't know exactly the answer. I think it's going to be different for every situation.

138
00:25:17,250 --> 00:25:24,320
Gordon Firemark: But I do think that, you know, spending your last few bucks on something like getting a patent,

139
00:25:24,540 --> 00:25:31,940
Filip Valica: if you don't have a business plan for what you're going to do with this asset once you have the patent, you've got,

140
00:25:32,860 --> 00:25:46,520
Gordon Firemark: you know, you don't have a plan. There's no sense in spending that money. You might do better to spend some money figuring out whether it's viable as a product or whether it fits into someone else's product. And again, that's where some trade secret kind of,

141
00:25:46,620 --> 00:26:01,320
Gordon Firemark: that's where maybe an NDA makes sense. You've got a patentable thing. You haven't yet registered the patent. And if you make it public, you won't be able to patent it. So that's an important component of this is that once the material is out there in the public, if you haven't registered

142
00:26:01,320 --> 00:26:11,080
Gordon Firemark: for patent, you lose the opportunity to. So, and I'm not a patent lawyer per se, but, you know, that's sort of the extent of my knowledge on the subject. So you want to be really careful

143
00:26:11,080 --> 00:26:22,060
Gordon Firemark: not to publish the technology until you've got a patent, whatever. So by sharing with a third party, you're publishing it unless you have that NDA. So that may be a valid reason why you

144
00:26:22,060 --> 00:26:27,180
Filip Valica: must insist on an NDA is you've got a valid, a patentable thing, but you haven't, yet patented.

145
00:26:28,610 --> 00:26:41,750
Filip Valica: I've even heard that, whether you have an NDA or not, that it might be considered public disclosure because you've offered it for sale technically. Well, but if you're offering it to sale to a company that's going to incorporate it into a product, you know, you're not saying,

146
00:26:42,130 --> 00:26:48,830
Filip Valica: hey, buy my thing. You're saying, hey, let's talk about whether this is a viable joint venture or whether you want to license this technology.

147
00:26:49,770 --> 00:27:04,290
Gordon Firemark: So, you know, it is, yeah, again, and you know what I would really say here is the answer is, spend a few hundred bucks and have a consultation with an experienced patent lawyer, really, who can advise you on that, you know, and yeah, there's that sense of, well, you know, if I go to a carpenter who's got a hammer, I'm sure

148
00:27:04,290 --> 00:27:05,850
Gordon Firemark: going to look like a nail. Right.

149
00:27:07,070 --> 00:27:17,790
Gordon Firemark: But, you know, lawyers don't get ahead by doing things that their clients don't really need or can't really justify financially. So, you know, find somebody

150
00:27:17,790 --> 00:27:25,670
Gordon Firemark: you can trust and get some good advice and make sure there's a business behind it. You may, You know, it may be great to have this invention, but if nobody's going to ever use this invention,

151
00:27:26,780 --> 00:27:27,160
Gordon Firemark: don't bother.

152
00:27:27,420 --> 00:27:35,680
Filip Valica: No, I totally agree with that. I think, and it wasn't a leading question, but what I usually advise people to do is to test the market first.

153
00:27:35,880 --> 00:27:43,360
Filip Valica: And even if that means being really vague about what your idea is, and that way there is no public disclosure,

154
00:27:43,580 --> 00:27:52,060
Filip Valica: you can approach people to say it's in this space or in this industry or it's this type of product that solve this need without really disclosed.

155
00:27:52,920 --> 00:28:02,120
Filip Valica: the specifics. Yeah, I think it's really important to validate product ideas as early in the game as possible, and that may just be by conducting surveys

156
00:28:02,120 --> 00:28:16,420
Gordon Firemark: or by bringing in a focus group or something like that and letting them try the product. That doesn't count as publishing the technology. If you create a prototype, of course, which is another expensive adventure to go down,

157
00:28:16,580 --> 00:28:31,230
Gordon Firemark: but if you've got something like that and you can bring someone who would normally use this and say, here look what I've created is this something you would buy that can be a great way to validate again check with a patent lawyer to make sure that's not going to get you

158
00:28:31,230 --> 00:28:40,810
Gordon Firemark: into problems with registrability great no so all great tips actually while we're on the topic so you said check with a patent lawyer what are the things to look for when you are

159
00:28:40,810 --> 00:28:53,190
Gordon Firemark: choosing a lawyer for some of these topics you type into Google you type lawyer my city the first two pages are the people that have paid for the top Google ads or have the best SEO and you type you

160
00:28:53,210 --> 00:28:56,030
Gordon Firemark: you reach out to them. Some of them will reply. Some won't.

161
00:28:56,890 --> 00:29:10,970
Gordon Firemark: The rates that you get back range from, and I'm speaking from personal experience talking to some lawyers, they'll go anywhere from 150 an hour to, let's say, 500 an hour. That may or may not be representative of their experience and skill set.

162
00:29:12,130 --> 00:29:13,110
Gordon Firemark: Well, true. Yeah.

163
00:29:14,270 --> 00:29:27,150
Gordon Firemark: Oftentimes the higher rate is tied to someone who's been in practice a longer time. And so at least in theory, they have more experience, whether that more experience translates into greater efficiency in getting the work done or just greater success

164
00:29:27,150 --> 00:29:38,010
Gordon Firemark: in getting the work done is sort of hard to say. But, you know, I'll tell you in my own experience. I have, I'm at the higher end of that range. And the folks that come to me can pretty much count

165
00:29:38,010 --> 00:29:49,030
Gordon Firemark: on me getting the job done either in less time or with less overall expenditure, even though a younger lawyer who's charging a third of my rate might seem cheaper. It's not.

166
00:29:51,210 --> 00:30:04,470
Gordon Firemark: You know, one shouldn't skimp on legal fees on the hourly rate, focus on what it's really going to cost you. And you should ask a lawyer, hey, what should I expect to be spending on this patent or this transaction or whatever it is we're doing?

167
00:30:04,970 --> 00:30:09,510
Gordon Firemark: And if they can't give you a number, it means either they're afraid to tell you a number

168
00:30:09,510 --> 00:30:19,570
Filip Valica: because it's going to be too high or too low or they don't have the experience to know what it's really going to cost. And, you know, we can even do flat rates. You know, there's nobody forcing us to charge an hourly.

169
00:30:19,570 --> 00:30:26,350
Filip Valica: So, you know, for things like trademark registrations, we do flat rates and, you know, there's an efficiency in some of these things.

170
00:30:27,490 --> 00:30:28,890
Filip Valica: What do you look for in a lawyer?

171
00:30:29,770 --> 00:30:44,550
Gordon Firemark: I think experience is in the specific thing you're talking about. If you have a biotech patent, use a lawyer who's done some biotech patent work. If you have a mechanical engineering kind of a thing, then use someone who's got that experience.

172
00:30:44,630 --> 00:30:51,250
Gordon Firemark: Now, the interesting thing is in patent space, especially, in order to become a patent lawyer, you have to, to demonstrate, well,

173
00:30:52,050 --> 00:30:55,810
Filip Valica: generally you have to demonstrate some experience and education in a

174
00:30:55,810 --> 00:31:03,980
Gordon Firemark: technical field, engineering, biotechnology, science, hard sciences, those kinds of things, which is why I'm not a patent lawyer. I'm a Bachelor of Arts guy.

175
00:31:05,100 --> 00:31:15,720
Gordon Firemark: So, you know, you want experience, you want understanding. And I would say some wisdom. You know, someone straight out of law school probably can file the patent for you, but I don't know whether they're going to give you

176
00:31:15,720 --> 00:31:30,340
Gordon Firemark: the kind of advice you need early on in the game and really get you where you need to be. So, again, spending a little more money, probably a wise investment in that regard. So you call up, you know, 10 people and you sit down and have these consultations.

177
00:31:30,560 --> 00:31:44,280
Gordon Firemark: Is it normal to expect these to be, let's say, a 30-minute consultation to be kind of free of charge because it's an opening consultation, or is it something that you would normally charge for? And now you're kind of out of pocket for the five or 10 people that you speak to.

178
00:31:44,840 --> 00:31:55,560
Gordon Firemark: You know, I think that you should be able to narrow it down before you end up paying. So, you know, you're going to talk to people on the phone first, and five or ten minutes ought to be enough to tell you a lot.

179
00:31:56,560 --> 00:32:00,620
Filip Valica: You know, you should be able to describe in general terms what it is you're looking for.

180
00:32:01,520 --> 00:32:15,340
Filip Valica: And really, my guess is if you call 10 lawyers, six of them are going to say they're not that interested in it or we're going to seem not that interested. That's been my experience anyway. I just thought it was my face. No, you know, I mean, the truth of it is it's too small of a job. It's too big of a job.

181
00:32:15,540 --> 00:32:26,560
Filip Valica: It's not the right kind of a job for our firm or we're just too busy. You know, you're going to find a lot of that. And then you move on to the few who are actually willing to take a meeting. You can, hey, look, you know, is this a free consultation?

182
00:32:27,020 --> 00:32:36,200
Filip Valica: And it's reasonable to ask for a free consultation so that they can pitch you the business or pitch the business to, you know, sell you on hiring them. If someone's not willing to do, I mean,

183
00:32:37,160 --> 00:32:47,580
Gordon Firemark: this is from someone who actually does charge for consultate. I do short consultations for free. That's the get-to-know-you stuff. But then if you want me to give you real advice about your business, that's what I get paid for. Absolutely.

184
00:32:48,340 --> 00:32:49,620
Filip Valica: And that's expected. Yeah.

185
00:32:50,120 --> 00:32:55,000
Gordon Firemark: So, you know, if it's a matter of someone has to actually take a look at your thing in order to decide, is it patentable?

186
00:32:56,520 --> 00:32:58,820
Filip Valica: It's a judgment call whether to expect to be charged.

187
00:32:59,740 --> 00:33:12,560
Filip Valica: And I think it's reasonable to expect to pay something. But it ought to be a fairly nominal amount that they'll know within a few minutes, whether it's something that they can help with or not. And then it comes down to personality connection.

188
00:33:12,960 --> 00:33:25,500
Gordon Firemark: Does it seem like somebody you can trust? All very good tips for sure. One of the first questions that people have when we start talking about patents into any detail is I haven't seen any patents around this space. So I must be okay.

189
00:33:26,240 --> 00:33:38,320
Gordon Firemark: And so I always tell people to go speak to a lawyer. So lawyers and CPAs are the two people that I will not skimp on. I'm a huge fan of DIY as you see behind.

190
00:33:38,340 --> 00:33:49,760
Gordon Firemark: me in my workshop. I do everything myself, even when it comes to business, I've tried to learn marketing and sales and graphic design, but the accounting and the law side, I definitely

191
00:33:49,760 --> 00:34:04,700
Gordon Firemark: outsource to people with that knowledge because that one tiny mistake can bite you. And I'll tell you, you know, I, it's interesting. I do my own taxes, but when I have a legal situation, I hire a lawyer. And my other area where I don't DIY is plumbing.

192
00:34:06,320 --> 00:34:10,980
Gordon Firemark: Fair enough. You know, Plumbing is one of those things where it either takes you 30 minutes or three days. Exactly.

193
00:34:11,860 --> 00:34:21,940
Gordon Firemark: Yeah, while the water is pouring out of the sink, right? Right. Well, all very great tips on how we can find a lawyer ourselves and what we should look for when forming our businesses.

194
00:34:22,520 --> 00:34:37,320
Gordon Firemark: Is there anything that we haven't covered so far that you think is a typical stumbling block for somebody that's a small business owner or they're just starting out? You know, there's a couple things that we didn't really touch on that I think are worth considering. And that is if you're doing business online, there are some.

195
00:34:37,340 --> 00:34:47,240
Gordon Firemark: other components to all of this that you have to think about, one of which is, you know, make sure you have your terms of service, your privacy policy, and, you know, all of those

196
00:34:47,240 --> 00:34:58,780
Gordon Firemark: kinds of things done properly. And it isn't smart to just copy someone else's. Even if they're in the exact same business as you, you're going to do things differently

197
00:34:58,780 --> 00:35:11,040
Gordon Firemark: than they do. Or if you're smart, you're going to do things differently than they do. At least that's how you differentiate yourself in a marketplace. So you need to make sure that these are contracts, after all, that they cover you properly.

198
00:35:12,380 --> 00:35:25,290
Gordon Firemark: Insurance we've touched on earlier, you should definitely have insurance in place. And especially if you're online, there are components to liability that come up only in the online space. Really? Well, I think we need to get into that.

199
00:35:26,030 --> 00:35:32,050
Gordon Firemark: Well, I mean, I guess copyright infringement and those kinds of things do come up offline, but there's so much more common online.

200
00:35:33,050 --> 00:35:40,490
Gordon Firemark: If you are doing a business of any kind where people can submit, content onto your website or onto a service that you operate,

201
00:35:41,530 --> 00:35:52,190
Gordon Firemark: register your DMCA agent for service of process. You go to the copyright website and type in DMCA agent, and there's a form

202
00:35:52,190 --> 00:35:57,250
Filip Valica: that you have to download and file. It costs about 130 bucks to file it. This gets you on your,

203
00:35:58,170 --> 00:36:07,590
Filip Valica: and you have to identify the person that somebody writes to to complain about a copyright infringement. And this basically gets you into the system, the DMCA system,

204
00:36:07,670 --> 00:36:22,240
Gordon Firemark: So that if somebody wants to come after you, you basically what the DMCA says, this is the Digital Millennium Copyright Act. Basically what this says is if somebody has a complaint about copyright infringement, they have to send you a notice.

205
00:36:22,940 --> 00:36:37,440
Gordon Firemark: And if you respond to that notice by taking down the material, then you are eligible for a safe harbor against copyright lawsuit. So as long as you have a clearly stated policy that you enforce to do these things, you're okay.

206
00:36:37,900 --> 00:36:43,060
Gordon Firemark: and if you've registered that person with the DMCA, with the Copyright Office, excuse me.

207
00:36:43,860 --> 00:36:51,380
Filip Valica: So, you know, don't do that and someone uploads something to your website, even in the comments on a blog. Imagine this.

208
00:36:51,580 --> 00:37:01,860
Filip Valica: You know, you have a blog and you're promoting your product in the blog, and some bozo jumps into the comments section and paste a big, long quote from a movie into your thing.

209
00:37:02,100 --> 00:37:14,220
Gordon Firemark: Technically, copyright infringement. You've copied the dialogue of the movie, right? And you're the host of the thing, so who's going to, who are they going to come after, right? Right. So they notify you, you take it down. You're good.

210
00:37:14,740 --> 00:37:22,680
Gordon Firemark: And if you don't have that registration and that policy in place, you can be sued for copper and infringement. So it's cheap and easy insurance.

211
00:37:23,620 --> 00:37:33,460
Gordon Firemark: Fortunately, I don't have many comments on my blog. Well, that's fortunate or unfortunate depending on your perspective. Wow, that's really interesting. I didn't think that it applied to blog comments.

212
00:37:33,460 --> 00:37:39,180
Filip Valica: I thought it was just for crowdsourced sites or, you know, places where you've got a lot of user-generated content.

213
00:37:39,620 --> 00:37:49,520
Gordon Firemark: Well, it's generally, that's how we generally think of it. But my thinking is for $130 to have that piece of mind and know that if some bozo posts a photo, for example, in your blog comments.

214
00:37:50,500 --> 00:38:03,320
Gordon Firemark: You know, and yes, you can take it down on your own volition, but you also don't want to be in that position of appearing to be an editor of content on your site because that puts you back into the liability. You know, you have that, quote, red flag knowledge.

215
00:38:03,680 --> 00:38:14,330
Gordon Firemark: about it. So if you're going to allow comments on your blog and you're going to allow uploads and that kind of stuff, my feeling is have that DMC and that is taken care of. Very good advice.

216
00:38:16,080 --> 00:38:25,980
Gordon Firemark: So some of the other things that we talked about, we talked about trade secrets, patents, copyrights, trademarks, all things that are important whenever you're starting a business.

217
00:38:26,240 --> 00:38:41,140
Gordon Firemark: What about something if you're already in business that you might be overlooking, whether it's agreements with suppliers or employment law? Well, I think as you expand your business and you start taking on employees, you open up a whole other can of worms.

218
00:38:42,330 --> 00:38:44,330
Gordon Firemark: Dealing with wage and hour issues, of course,

219
00:38:45,750 --> 00:38:59,750
Gordon Firemark: unemployment issues. You know, if you fire somebody, obviously there's concerns about why you fire somebody and how you go about it, the normal human resources kinds of issues. I'm not qualified to really talk about all that other than to say you want to talk to

220
00:38:59,750 --> 00:39:13,730
Gordon Firemark: people and get some good advice about that. Fortunately, there's lots of resources out there, the Small Business Administration and outfits like SCORE and, you know, the Senior Corps of Retired executives. Have you heard of them? Yes, I use them extensively in Houston and they're amazing.

221
00:39:14,610 --> 00:39:24,790
Gordon Firemark: Those kinds of folks. And but also, you know, make sure your insurance is in place to cover them for workplace injuries and those kinds of things. And by the way, if you use volunteers or interns,

222
00:39:25,690 --> 00:39:30,530
Gordon Firemark: make sure you have insurance coverage that will cover them because they may very well be treated as employees,

223
00:39:31,530 --> 00:39:32,430
Gordon Firemark: even though you're not paying them.

224
00:39:33,550 --> 00:39:43,130
Filip Valica: And the non-payment of interns has been an issue in the news and media a lot in the last couple of years as well. So get some good advice about these things. Employment situation?

225
00:39:44,230 --> 00:39:50,830
Filip Valica: Same thing about contract versus employee-type relationships. Yeah, so that's an interesting, a good point.

226
00:39:52,210 --> 00:40:06,070
Gordon Firemark: Many of us think that, well, if we call somebody an independent contractor, we don't have to withhold taxes, we don't have to cover them with insurance, et cetera, et cetera, et cetera. The truth is calling something so does not make it so. You know, I can say the sky is orange, but it's not going to be orange.

227
00:40:06,310 --> 00:40:07,670
Gordon Firemark: It's not most of the time it's not orange.

228
00:40:09,680 --> 00:40:15,560
Gordon Firemark: So calling somebody an independent contractor when they are really an employee and when they look like an employee to the outside world,

229
00:40:16,580 --> 00:40:29,680
Gordon Firemark: chances are the government is going to think they're an employee. And chances are somebody who gets hurt is going to think of himself as an employee. And the worst case scenario is you've got this person treated as an independent contractor.

230
00:40:29,840 --> 00:40:38,620
Filip Valica: You're paying them, you know, a lump sum without withholding taxes. You're not insuring for workers' compensation. You're not insuring for unemployment. And then they get hurt.

231
00:40:39,860 --> 00:40:49,920
Gordon Firemark: And they miss three weeks of work and you fire them. Right. Now you're getting sued for wrongful termination and the workers' comp claim,

232
00:40:50,710 --> 00:40:55,790
Filip Valica: but the workers' comp insurance coverage is not going to cover it because you weren't. treating this person as an employee.

233
00:40:56,730 --> 00:41:01,590
Filip Valica: But the general liability insurance policy isn't going to cover it because they should have been treated as an employee.

234
00:41:02,650 --> 00:41:03,090
Filip Valica: Sneaky.

235
00:41:04,050 --> 00:41:07,130
Filip Valica: And if your company doesn't have a lot of cash and capital,

236
00:41:08,110 --> 00:41:14,310
Filip Valica: now, even though you've got a corporation or an LLC or something like that, there are ways that they can sometimes access your personal assets.

237
00:41:14,530 --> 00:41:24,700
Gordon Firemark: So, you know, you've got to be careful. Wow. That's very interesting. So I have a LLC myself, and I try to definitely keep the separation.

238
00:41:24,940 --> 00:41:39,700
Gordon Firemark: of assets and bank accounts and, you know, sign all the contracts properly, you know, as member of LLC or manager of LLC. Sure. So let's talk about that a little bit, you know, piercing that veil, so to speak. That's the term.

239
00:41:39,900 --> 00:41:43,440
Gordon Firemark: The legal term is piercing the corporate veil or the LLC veil. And,

240
00:41:44,300 --> 00:41:58,470
Gordon Firemark: yeah, the courts take a look at, I mean, when it comes up, and it fortunately doesn't come up that often, is this company really just an alter ego for the person? and if so and the way we look at that is do they commingle their finances you know

241
00:41:58,470 --> 00:42:08,430
Gordon Firemark: does he borrow from his personal account to cover a company bill does he you know whatever does he pay for gas with the company credit card on a non-business trip or you know those kinds

242
00:42:08,430 --> 00:42:19,590
Gordon Firemark: of things and the more of that kind of stuff that exists the more likely they are to pierce the veil and say it's an alter ego we're not going to we're not going to distinguish the two and we're going to let them at your assets.

243
00:42:21,220 --> 00:42:21,460
Gordon Firemark: Absolutely.

244
00:42:22,440 --> 00:42:32,440
Filip Valica: So again, make sure that you're working with professionals to make sure things are set up properly and you're not. And not having insurance in place is going to be another one of those factors that they look at.

245
00:42:32,600 --> 00:42:46,700
Gordon Firemark: Well, you know, if you'd had insurance in place, you were acting like a business by having it. So all of those kinds of things. So you've brought up insurance probably four or five times now. The only insurance that I'm aware of personally is product liability insurance specific to products

246
00:42:46,700 --> 00:42:48,500
Gordon Firemark: in certain industries. And it's basically,

247
00:42:49,420 --> 00:42:58,720
Gordon Firemark: from what I understand, the rates are based on how much revenue you're making per year and the type of product it is. In other words, the likelihood of it injuring somebody.

248
00:42:58,780 --> 00:43:10,540
Gordon Firemark: What are some of the other types of insurance and what do you recommend is like the bare minimum that people should have whenever they just start? Well, I mean, I think there's a whole raft of different kinds of insurance that can apply.

249
00:43:10,640 --> 00:43:17,020
Gordon Firemark: And we've already talked about several of them, workers' compensation to cover your employees against any injuries that happen while they're working.

250
00:43:18,200 --> 00:43:28,100
Filip Valica: General liability insurance is the stuff that covers a slip and fall on the premises or damage to some, you know, somebody's property while they're on, you know, while it's on the premises,

251
00:43:30,000 --> 00:43:42,400
Gordon Firemark: damage to the premises itself could be covered by a general liability policy. You might want to have, you know, fire and earthquake and those kind of coverages to cover you against losses suffered as a result of a disaster. Right.

252
00:43:43,580 --> 00:43:48,000
Gordon Firemark: And I'm not here to sell insurance, but, you know, I'm just sort of thinking off the top of my head. head here.

253
00:43:49,020 --> 00:44:01,520
Gordon Firemark: Business interruption insurance is another one where if there's a flood or a fire or an earthquake or something that stops business from happening. Maybe it's a strike or a riot or who knows what. You might be able to have some insurance to keep things going, keep people on the payroll

254
00:44:01,520 --> 00:44:07,260
Gordon Firemark: so you don't lose your whole your whole staff if you have a protracted delay in getting things done.

255
00:44:08,500 --> 00:44:20,140
Gordon Firemark: Products liability coverage, as you said, will depend on the product and the size of the general liability insurance for a business. Oh, yeah.

256
00:44:20,480 --> 00:44:31,760
Gordon Firemark: In terms of you do something to harm somebody in some capacity professionally. That might not be under the general liability coverage. I'm going to get to that. So what you're talking about is sort of an errors in omissions insurance.

257
00:44:32,440 --> 00:44:40,480
Gordon Firemark: This is where you should have gotten a license to use a piece of copyrighted or patented or trademarked material and you didn't.

258
00:44:41,340 --> 00:44:45,440
Filip Valica: You can have coverage against that lawsuit.

259
00:44:45,440 --> 00:44:59,240
Gordon Firemark: So you get a defense of that case. on. And that will also depend on the nature of your business and how much of this kind of stuff you're doing. And it can also cover, you know, well, just any kind of, if you need a license

260
00:44:59,240 --> 00:45:13,960
Gordon Firemark: or a permit and you need to, you get fined or, you know, they may be able to get a defense there too. And then there are the, there are sort of umbrella policies that will cover any gaps that come up. Now, you can, you can overinsure. It's definitely possible to have too much

261
00:45:13,960 --> 00:45:21,460
Gordon Firemark: insurance where all your money is going out to insurance. That's where my mind is right now, because my head is kind of spinning because I'm thinking, gosh, I need five or six policies now.

262
00:45:21,860 --> 00:45:33,140
Filip Valica: And is that something that I can afford with minimal revenue? Well, you know, I think that, as I've said before, a lot of the time, what's important is that you have a talk with an insurance agent, someone who knows this stuff and can really

263
00:45:33,140 --> 00:45:37,240
Filip Valica: take a look at your business and give you a strong recommendation of the things.

264
00:45:37,500 --> 00:45:44,080
Gordon Firemark: And you can ask that person, hey, prioritize these for me. What do you think is, obviously, if I've got employees, I've got to have workers' comp,

265
00:45:45,030 --> 00:45:53,610
Gordon Firemark: right? And if I've got a facility, if I've got a factory or a warehouse, I've got to have liability coverage because the landlord's not going to let me do it without it.

266
00:45:55,030 --> 00:46:05,370
Gordon Firemark: Do you need E&O insurance if you're in the business of making a product and you're, you know, inventing it from the ground up and you're very confident that you're not stepping on somebody else's patent?

267
00:46:06,770 --> 00:46:15,050
Gordon Firemark: Probably not. I mean, you can probably get away with it for a while without it. And, you know, it sort of depends where you are in the phase of your business and all those kinds of things, too.

268
00:46:15,990 --> 00:46:24,140
Gordon Firemark: If you're using vehicles to drive your stuff around to deliver your product, you need vehicle insurance.

269
00:46:25,100 --> 00:46:32,900
Gordon Firemark: And if you have, as you said, if you're putting a product into the marketplace that has any potential to harm somebody, you need that product's liability coverage.

270
00:46:34,060 --> 00:46:45,220
Filip Valica: And, you know, you may not think that your product can harm somebody, but someone will find a way. Well, let's face it, if you're in the business of cupcakes, you can food poison somebody, of course.

271
00:46:53,780 --> 00:46:55,180
Filip Valica: Sure.

272
00:46:58,300 --> 00:47:00,540
Filip Valica: Someone can choke on

273
00:47:00,540 --> 00:47:15,180
Gordon Firemark: a sprinkle.

274
00:47:15,180 --> 00:47:16,140
Gordon Firemark: So back to the advice.

275
00:47:17,020 --> 00:47:28,350
Gordon Firemark: Talk to an insurance professional, ask them to prioritize. If you only had a limited budget for this, which of these things would you be buying first? And which one can you think I can live about? And follow those priorities.

276
00:47:29,690 --> 00:47:43,780
Gordon Firemark: Very great advice. And actually, while you were talking, I thought about something else that maybe we didn't cover from a legal perspective. So I know that online, especially if you make any type of statements regarding income,

277
00:47:44,200 --> 00:47:57,920
Gordon Firemark: they have to be phrased a certain way for the, FTC. Oh, right. Yeah, the FTC guidelines for advertising and endorsements are really important. This applies both to endorsements where you have a, you know, celebrity or someone

278
00:47:57,920 --> 00:48:01,120
Gordon Firemark: suggesting that they're endorsing your product.

279
00:48:01,900 --> 00:48:12,840
Filip Valica: They better have actually used the product and it better be a legitimate, bona fide, non-fraudulent endorsement. Never make me misleading statements in your marketing and sales, you know.

280
00:48:13,500 --> 00:48:23,590
Gordon Firemark: And yeah, if you if you're if you're citing, specific performance revenue markers or performance and those kinds of things it's important

281
00:48:23,590 --> 00:48:34,670
Gordon Firemark: to have the right disclaimers in place and we've all seen these disclaimers you know um results not typical or or uh your you know your experience may vary or those kinds of things i mean you want

282
00:48:34,670 --> 00:48:46,890
Gordon Firemark: a good example that type in a google search for us iberry extract and look at all how all the ads are structured and all those disclaimers there's your template right um um

283
00:48:47,330 --> 00:48:59,030
Gordon Firemark: And although some of those folks have gotten in some big trouble, actually. All very good help. I feel like in the last 50 minutes, we've probably rushed through some very important topics that we could spend even more time on.

284
00:48:59,050 --> 00:49:10,290
Gordon Firemark: But it's basically been the most enjoyable conversations I've had in a lawyer ever with. So thank you for sitting down with us and talking to us about a lot of these topics that are all very important when running a small business.

285
00:49:11,210 --> 00:49:22,890
Filip Valica: Well, it's really been my pleasure. Do you have any parting thoughts of wisdom or tips that you can give to small business owners? Well, you know, I think the biggest tip I want to give is use common sense.

286
00:49:23,890 --> 00:49:28,250
Filip Valica: If it feels like there's something not quite right, that's probably the case.

287
00:49:28,850 --> 00:49:41,040
Gordon Firemark: Don't convince yourself otherwise. Listen to your intuition about these things. And seek and obtain advice about everything. Off of the online forums. Well, you know what?

288
00:49:41,140 --> 00:49:52,280
Filip Valica: The online forums are a decent. starting place because let's face it it's going to be 1130 at night when you think of this thing that you have to know the answer to or you're not going to sleep right so go and do the online

289
00:49:52,280 --> 00:50:06,740
Filip Valica: research and then take it the next step further if you think it's something you should talk to a lawyer about send an email to a couple of lawyers ask for you know free consultation or ask them see if they have any information online a lot of us put a lot of invaluable information up

290
00:50:06,740 --> 00:50:21,310
Filip Valica: online as a way of educating the public and you know that that's a And if you need an accountant, seek an accountant. If you need a dentist and see a dentist, don't try to fix your own, you know, broken tooth. Right.

291
00:50:21,930 --> 00:50:28,490
Filip Valica: So where can people find you if they want to get more information and where are you licensed to practice if they'd like to work with you personally?

292
00:50:28,610 --> 00:50:31,090
Gordon Firemark: So I am a licensed California attorney.

293
00:50:31,490 --> 00:50:35,830
Filip Valica: I'm in Los Angeles, California area, but the whole state is fair game.

294
00:50:36,670 --> 00:50:39,550
Gordon Firemark: And you can find me at firemark.com.

295
00:50:39,710 --> 00:50:40,850
Filip Valica: My name is Gordon Firemark.

296
00:50:40,990 --> 00:50:52,590
Gordon Firemark: It's F-I-R-E-M-A-R-K. com you want to hear my podcast the main one is entertainment law update.com and one is well one is actually

297
00:50:52,590 --> 00:51:07,350
Gordon Firemark: not yet in existence but I'm looking at my checklist of things to do for the next week or two first one is I have an e-book for podcasters and bloggers called the podcast blog and new media

298
00:51:07,350 --> 00:51:12,760
Gordon Firemark: producers legal survival guide and podcast lawbook.com

299
00:51:13,740 --> 00:51:19,780
Gordon Firemark: is the location for that. So anybody who's interested in the online and really covers all that online stuff that we talked about.

300
00:51:20,860 --> 00:51:27,760
Gordon Firemark: The other one is a negotiate anything course and that is at firemark.com slash negotiate.

301
00:51:30,370 --> 00:51:31,150
Gordon Firemark: What else?

302
00:51:32,210 --> 00:51:34,010
Gordon Firemark: On most social media, G, Firemark.

303
00:51:35,220 --> 00:51:49,540
Gordon Firemark: Great. And we're going to have all those links in the show notes. So I'll thank you again very much. All your tips are hugely appreciated. And I know that at least this gives people a good introduction of what they should be looking out for and some of the pitfalls they should expect

304
00:51:49,540 --> 00:51:54,760
Gordon Firemark: from starting their own business. So thanks again for coming on the show. Oh, well, thank you. And one other thing.

305
00:51:55,720 --> 00:52:09,740
Gordon Firemark: Anybody has questions they'd like to submit? I have a YouTube channel at firemark.tv. And if you go to firemark.com slash questions, you can submit your questions. And if it's in my wheelhouse, I'll try to give an answer online. That's perfect.

306
00:52:10,260 --> 00:52:13,280
Gordon Firemark: Well, thanks again, Gordon. I really appreciate your time. Thank you.

307
00:52:14,240 --> 00:52:26,910
Gordon Firemark: And that's all I've got for. for today. Thanks for listening. I put all the links that we've covered under the show notes posted on the product startup.com slash episode nine. Join me in two weeks for another new episode. If you

308
00:52:26,910 --> 00:52:41,310
Gordon Firemark: like this episode and you want to see more like it, or even if you want to see something completely different, please leave me a review on iTunes by going to the product startup.com slash review. I really appreciate your support. I read all the comments and questions and I try

309
00:52:41,310 --> 00:52:48,330
Gordon Firemark: to incorporate them into future episodes. Reviews also help me get great guests on the show. So I'll see you in two weeks.

310
00:52:49,610 --> 00:53:01,830
Gordon Firemark: Thank you for listening to this episode of the Product Startup Podcast with your host, Philip Belizea. For more great content and to stay up today, visit theproduct startup.com. Your guide to getting there.

311
00:53:07,240 --> 00:53:21,720
Filip Valica: Thanks for tuning into this episode of the Product Startup Podcast, the show that teaches you what it really takes to bring your product to market and turn it into a big success. This podcast series is brought to you by Mako Design + Invent, the first firm in North America

312
00:53:21,720 --> 00:53:32,780
Filip Valica: to provide global caliber end-to-end physical consumer product development to startups, inventors, and small product businesses. If you're looking for product development help on your invention, head over to macawdesign.com.

313
00:53:33,000 --> 00:53:42,660
Filip Valica: That's M-A-K-O-Dign.com for a free consultation from one of Mako-Design for design studios from coast to coast. Thanks for listening and see you next time.