Episode Transcript
[00:00:01] Speaker A: Welcome back for another episode of the Unscripted Small Business Podcast. I'm thrilled to welcome today's guest, Kelly Jones. Kelly is a lawyer for entrepreneurs and small business owners that has over eight years of experience in trademark and contract law, and she's on a mission to make the legal side of business not only more accessible, but also less boring. In this episode, Kelly dives into why trademarks are essential for protecting your brand identity and the key differences between trademark and copyright law. She also breaks down the costs involved in trademarking and how AI is changing the landscape of intellectual property. Kelly also shares her expertise on the importance of clear, specific contracts and how legal protection can play a crucial role in the growth of your business. If you have ever had questions about trademarking part of your brand, you won't want to miss this conversation.
[00:01:00] Speaker B: Let's get started.
Kelly, I'm so excited to have you in the studio today. Thank you so much for being here.
[00:01:13] Speaker C: Thanks for having me.
[00:01:15] Speaker B: So, Kelly, tell us a little bit about your background and kind of how you got into law. I know that you specialize specifically in trademarks, but how did you go about choosing that route?
[00:01:26] Speaker C: Yeah, so before that, I was actually working for a private law firm doing more like, litigation, going to court every day. But that was right before COVID And then when Covid happened, courts were all shut down. I wasn't going to court every day anymore. So that's when summer of 2020 is kind of when I pivoted and opened my own firm instead. And I had really been, or I had already been interested in intellectual property law, but I was also interested in doing something that didn't involve being in court every day and also working more online versus, you know, only with people like in my state, which is what a lot of other types of law only allows. So I really like that trademarks. I can connect with people all over the country and also don't have to go to court.
[00:02:14] Speaker B: That is so awesome. And I love that you found this opportunity right with COVID because it shut the world down. But you saw this, this opportunity to take everything virtual. How has that been now? Moving out of COVID keeping things virtual?
[00:02:29] Speaker C: It's been great. I think people are so used to it now that I think for a lot of people, it's their, like, preference, and it's definitely mine too. But I also like that, you know, I can still meet them all my clients on Zoom, so at least, you know, we're still connecting in some capacity. It's just not exactly the same.
[00:02:50] Speaker B: Yeah, absolutely. I Love being able to work from home and have that component as well. I think it's nice. And a lot of people, like you said, are kind of leaning more towards that now because we've gotten used to it over the last couple years. So I want to dive into what trademark law actually is, because I know for a lot of people out there, especially when they're thinking about the long term or the longevity of their brand, they might not be thinking on the forefront about trademarking that branding. Why is that so important to start thinking about right. Right away?
[00:03:23] Speaker C: Yeah, so a trademark is really, it's something that you're using to identify your goods and services. So you know, that could be like your brand name, a logo, a slogan, your podcast name, your course name, something like that. Basically something that you are using in connection with goods and services. You know, so it's not just like a cute little like saying that you have, but actually it's used to identify part of your brand. And it's really important because that is how you stand out from other brands and you don't get confused with other brands. So, you know, a lot of people think like, oh, I formed my llc, therefore I own my name. But that's not actually the case. Your LLC is great to have, but that's to protect your personal assets. Should anything go wrong in your business, it has nothing to do with the name that you've chosen. You don't have ownership over that name just because you have an LLC for it to get ownership over the name. That's what the trademark is for. Which the whole purpose of it is to prevent people from being confused between your brand and someone else's. And that's really important because, you know, you don't want someone Googling something and they find your business, but then they also find someone else that's like a slight variation of it. And they're like, oh, who is who? Or you know, are they the same brand?
So we don't want people to be confused between that and, you know, the best way to build a long lasting brand is to be able to stand out.
[00:04:50] Speaker B: So what would happen? Let's say that you didn't trademark your brand immediately and you apply and you're an llc and then somebody comes in and they decide to apply for the same thing, maybe in a different state, and they get that name and then they decide to trademark it. You're just done, right? You can't do anything about it.
[00:05:08] Speaker C: So that's the tough part because technically the law is whoever's using it first has more rights. But when that comes to actuality, it's oftentimes the person who actually gets the trademark first. Because if you were using, you know, your name and you started in 2020 and then. And you didn't trademark in 2022, someone else pops up with the same name, they file the trademark, and then in 2024, you're like, oh, no, I want to file. What do I do? Your options are limited. You can try to fight that other person that has the trademark, you know, and say, like, oh, I was using it first. But one that's going to cost you a lot of money and time and everything like that. Because for you to do that, you have to basically, you know, it's essentially like starting a court proceeding, like suing them almost. So for you to do that, you'd also, you know, it's not. It's not automatic that you would even win after that. And it would take, you know, a couple years, likely couple hundred thousand dollars and maybe 100,000, maybe a little less to do that. And at the end, you still might only get rights. Even if you get rights to your name and the judge says, yes, you were using it first, you might only have those rights in. In a geographical. A geographical area where you live, because that's what you're like, unregistered rights were entitled to. So oftentimes, if you're not the first person, you usually end up being the one that has to rebrand. Rebrand. Unless, I mean, unless you have millions of dollars in time to fight in court. But most small business owners don't have that. So usually, like, if you're not the first to file, rebranding is usually what happens.
[00:06:54] Speaker B: That's so interesting and so sad, too, especially if you've started out and you've built your whole brand and then you have to make those changes. What happens in terms of, I know, different industries, you might see different names across different industries that are the same, but they sell different products. Is. Is that allowed with trademarking? How does that work?
[00:07:15] Speaker C: Yeah, so, because the whole point is really to prevent confusion, brands can exist with the same name if their goods and services are so far apart that people don't think that they'll be confused. You know, like, we have Delta Dental and then Delta, you know, the airlines, because no one's, like, signing up for dental insurance when they meant to, like, book a flight and like, vice versa.
But you know, some things, like if it was closer, if it was like Delta dental and then like, maybe Delta health insurance, but like they were different companies. That probably wouldn't be good because people would obviously think, like, oh, they're connected. They're the same thing. You know, like Dove deodorant, Dove Chocolate. Like both of those exist. But, you know, no other brand is going to pop up with Dove, like body wash. I mean, you know, aside from the fact that they also have body wash. But like, they're not going to pop up in some type of, like, you know, brand like that type of, of goods, because people are going to be more likely to be confused.
[00:08:15] Speaker B: Tell us the difference between trademark law and copyright law.
[00:08:20] Speaker C: Yeah, so trademarks is really when you're thinking of like the overall brand itself, like the name of things, the identifiers. Whereas copyright is really for like the creative works of it. So like, you know what the trademark is doing, whether that is like, for copyright. It can be like a photograph, a video, a blog post, a website. It's like the creative work itself. A book, you know, videos, even social media posts. So anything like that.
[00:08:50] Speaker B: Do you ever run into where a brand has trademark and copyright law at the same time and kind of how those work together?
[00:09:00] Speaker C: Yeah, so there's a lot of things, you know, in your brand that some things you might want to trademark and some things you might want to copyright. So, you know, if you have creative works, then you might want to copyright those, like a book or a course or something. And then if you have, you know, the overall brand name of things you might want to trademark, like the, the name of your business or your slogan or something like that.
[00:09:23] Speaker B: What's the typical cost for trademarking?
[00:09:26] Speaker C: Yeah, so typically I tell people to budget a couple thousand. So I charge 3,000 plus filing fees. And that's pretty average from what I see. The way that the government charges their filing FEES is it's 350 per class. So all goods and services are split between 45 classes. So you know, like coaching, podcasts, educational stuff, that's all in one class. So that's one filing fee. But then if you are also selling, let's say like shirts, that's another class because it's separate goods. So then that'd be another class of 350. So really it's like, you know, sometimes it's also priority of like, okay, your coaching is 90% of your business and podcast and, you know, educational stuff. So maybe that's just what we file in. So I usually say like a couple thousand.
[00:10:14] Speaker B: Do you think that it's important for business owners to start the trademarking process immediately and Kind of factor that into startup costs.
[00:10:23] Speaker C: So I typically ask people three questions. So the first one is, do you have something in your brand that you want to use for at least the foreseeable future? You know, so, you know, it's not going to be just a temporary name. You know, it's not like an event that you're running once, you know, you know, you want to stick with it. And then after that, would you be upset if someone else popped up with the same or similar name? And you kind of should be upset because again, it can cause confusion. And then the third thing, would you be upset if you were forced to rebrand? So if someone else got there first and they got the registered trademark and they either send you a season desist or you go to apply and realize that they filed and can't get it, would you be upset if you now had to rebrand? So if you answered yes to those three questions, then I would say yes. It's probably time to trademark. And that really can happen at different times for business owners because, you know, some people are super sure from day one, yes, this is my brand name. I want to keep it. I don't want anyone else to have it. And some people are like, you know, I'm not really sold on my brand name. I'm going to see how it goes. So maybe, you know, those people might wait a little longer until they're sure they want to keep that name.
[00:11:34] Speaker B: How long does a trademark last?
[00:11:37] Speaker C: So it, well, the process itself to get it, it takes a little over a year right now on average to get to the registration. And then as far as lasting, it lasts as long as you keep renewing it. So you have to renew it between years, five and six years, nine and 10, and then every 10 years thereafter. And that's really just to say that, like, yes, I'm still using it for these goods and services because, you know, businesses go out of business all the time or they rebrand or, you know, they stop selling certain things. So you're just saying like, yes, I'm still using this name. So yeah, as long as you keep doing the renewals, you can have it as long as you want.
[00:12:15] Speaker B: And what, what happens if a business, like you said, they go out of business before that five or six year mark? Does a trademark just immediately stop or is it just kind of flo.
[00:12:27] Speaker C: It usually just stays like registered until that renewal period comes up. And then if you don't file the renewal, then it will eventually abandon and turn into like a dead mark. That way, like Then people see in the future, like, oh, it's no longer a registered trademark.
[00:12:46] Speaker B: So interesting. I want to talk about a topic that I feel like a lot of people might be fascinated about, especially with this, this age that we're in with ChatGPT and all these AI tool, how does that affect the trademark world? I know that a lot of people are creating logos and things like that utilizing this AI technology, but who essentially owns that when you're using one of those sources?
[00:13:12] Speaker C: Yeah, so that's going to be tough because most things that you create with AI, you can't claim the ownership to it.
So it's also why I wouldn't really recommend doing things like I think AI is great and needed, but for certain things, like I like for a blog post, for example, I would rather use AI to generate maybe an outline and topics and things like that. And then write your own blog post from there because then you'll be able to own it versus you telling AI I want a blog post on these topics. Here's the outline. Write one for me. Because then that is going to be an AI output that you aren't owning.
So I think, like, it's really about just like what you use it for. And also because you know, the, the output that it might give you doesn't necessarily, I mean, one, you're, you're not guaranteed that it's going to be correct. So if you ask it to write a blog post and then two, you don't know exactly where it's pulling from. And that can be the, you know, the consequences of that could be, you don't know if you're infringing on someone else. And you know, what if AI pulled a full paragraph from someone else's blog post versus, like, you know, three words of their paragraph of a paragraph from all these different ones. And then if it pulled, you know, a whole paragraph or a half a blog post from someone else, then you are technically infringing on their copyright. And we just don't know, I think enough about AI to be certain that it's not infringing. And also because it's new, there's so many cases that are in the courts right now that it's like kind of like a gray area of like, we don't really know exactly what's going to happen with them either. So I say, like, use it carefully. And even if you're using it to come up with names for things, you know, as far as like on the trademarking side that, you know, it can definitely help with coming up with ideas and stuff. I mean, I helped me come up with the name for my, like, DIY trademark course, but I'm still going to take that name and then go make sure that, like, I'm not infringing on someone else, you know, that already has it.
[00:15:27] Speaker B: So it's kind of like when you're in school, you know, you have to make sure that you're not stealing, you know, from the books. Word for words. You have to kind of put your own spin on, on things. Are you finding within the court system and just kind of, you know, with these cases that you're seeing, that people who are making money off of blog posts, let's say, and they might have used AI or they wrote a book and they're claiming that it's theirs, but they used AI to write the book. Are you noticing any cases within that where now they have to pay back the money that they've made off of that or how does that part work?
[00:16:01] Speaker C: I haven't really seen anything that's gotten far enough along yet for that.
But, you know, I think that's definitely like, a factor because if. If someone is able to show that you are infringing, it's it, you know, it's not really going to matter. You can't say as a defense, like, oh, well, I got it from AI, like, you're still going to be infringing, so then you could potentially, like, have to pay for those damages, whatever they, you know, end up being.
I don't think I haven't really seen the outcome of stuff, but I'm sure some stuff has, like, settled without, you know, going far enough.
But yeah, that's definitely potential where, like, if you were infringing, then you might have to pay damages for those.
[00:16:48] Speaker B: Yeah, yeah. I think we'll see more in the future with that as we kind of continue to unveil what AI is capable of doing. I'm always so fascinated when I go into Canva now, and it makes me this image. It's like exactly what I wanted in my brain, but I couldn't put on paper. So I think that's going to be really, really fascinating and kind of scary at the same time. Are you scared of where AI is going?
[00:17:14] Speaker C: Definitely, a little bit, in some sense, yes. Because, you know, I see people turning to chat CBT and stuff more to help them do things like legal things also, you know, like for contracts or having them review a contract or something like that.
But. And I think in the future, you know, I think like, the experts are saying AI, you know, is really good now, but it's going to get like exponentially better within the next few years. And I think at that point in time, you know, things might be different. But right now there are certain things like, and I do this for fun, but I'll like put something in and have it review it or like try to have it draft something for me. And it's not always accurate. And that's the concern because, you know, I have seen. I would say my. Because I have a contract template shop as well and I would say that like sales have been lower for that because a lot of people are using it. And I mean, I see posts all over, like threads and stuff about like, Oh, I use ChatGPT to draft my contract or whatever. But the ones that I'm seeing from that are not, they're not at the same level yet as a lawyer. Um, so I think there are issues because I've definitely seen things that I'm like, that's not a good contract or that's not correct, it's not accurate, so it's not actually going to help you. Um, but I do think that like in the next few years, I think it will replace like some, definitely some like the contracts. I think for sure it'll replace and it'll be, you know, creating better output that's actually accurate and like does replace a lawyer. So that's exciting but also scary at the same time because, you know, but I don't think it's there yet, but I definitely see the potential for it.
[00:19:08] Speaker B: Yeah. And that brings me to contract law because I know that you also do contracts as well. So within the templates and even AI, what holes are you noticing within those templates for contracts?
[00:19:22] Speaker C: Yeah, well, I think some of it is.
Some is definitely just things missing, like the not being as specific. And these are the same things that, you know, come up with when you try to use a contract from like Rocket Lawyer or something. You know, it's more like bare bones, like basic type of stuff, but it misses a lot. And usually what like ends up screwing you over in a contract is like something that was missing. It's not what was already in there. It's like, oh, these other things weren't. These what if situations weren't accounted for in your contract. And I think some of that is also the, you know, your output from AI is only as good as whatever you're putting into it. You know, you're typing out and sometimes like you don't always know what you even need to go in your contract or what you're even looking for in that. So it can only give you as good of an answer as you're asking. And if you're not sure what to exactly ask it, or you're missing things that you should be saying, draft a contract with these things, then it's not going to get, you know, it's not going to include that because you don't know to include that. So I think that's definitely something I'm seeing where it's just missing things because it, you know, it wasn't asked to include them.
[00:20:39] Speaker B: What do you think is one of the main things that you see small business owners missing when they're drafting contracts?
[00:20:46] Speaker C: Um, I would say I've. I don't think I've ever really seen a contract that didn't come from a lawyer that I thought was, like, sufficient.
Just because there's so much that goes into contracts. It's like, and. And we're just trained to think kind of negatively about, like, if this goes wrong, if that goes wrong. I'm like, yeah, I know that. I'm just thinking of all the negative bad things that can happen. And it's not trying to be negative. It's just I want to prevent any of those things. You know, if something bad does happen, I want you to be in the best position possible.
So really, we're just trained to think about all of those things. And so oftentimes it really is just that the contracts I see aren't specific enough. They don't have enough information to cover you. You know, it's not just like, oh, I'm going to provide these three deliverables and, like, for this amount of payment and whatever, it's like, okay, well, what if they don't pay? Who owns the intellectual property to it? Are you transferring, you know, ownership of that? What about if they don't pay? What if they only pay half? Then who owns it? And it's like, is there a late fee? You know, like all these additional things and it's like, how are they being paid? Through what platform? Like what? You know, all these additional things that just don't really get taken into account. So that's why I always say, like, there are certain things you can diy, like if you want to DIY your LLC and you're going to be the only person owning your llc, you know, it's just, you go for it, please. Easy enough, fine. But a contract, I would say, at least get a template from a lawyer that you can just customize in 15 minutes because then at least it has everything you need.
[00:22:33] Speaker B: When do businesses need to have contracts? I know that contracts are a form of protection and there are multiple types of contracts. Whether that's an employment contract or I'm thinking about the contracts that you sign when you sign up for a gym membership. But what are some other contracts that you help businesses with?
[00:22:49] Speaker C: Yeah, so it really depends on the stage you're at and also like what you're doing, what goods you have or what services, what you're offering.
But I would say like, you know, most people start the first thing they need is usually a client contract for, you know, whatever services they have. And then there are some other things too, like if they either have a membership or if they have a digital product, I would have like terms and conditions for both of those things.
If they have a website, you a privacy policy is required by law. It goes in the footer of your website. It's not fun. I'm sure I'm the only people like lawyers, we're the only ones that read those things. They're super boring. But they are required.
So that, and then you know, everything else kind of depends. If you end up having affiliates for, you know, something you're selling, then an affiliate contract is always a good idea. If you're like collaborating with someone on, you know, co creating something, then a contract for that. Basically anything that you're doing with someone else, like any offer, any sale, any, you know, hire you should have like some written contract for.
[00:23:58] Speaker B: And what makes a contract legally binding?
[00:24:02] Speaker C: Yeah, well that depends on what it's for and who it's with. But to be on the safe side, I typically just say like, you know, if it's, if it's like you with another, you know, one on one, then you both signing it and dating it and stuff that is good. It can also still be a contract though, like the how I mentioned if you're at the membership or selling digital products, like those terms and conditions that, you know, people check the box to agree to these terms at payment. That can be a contract too if they're checking a box. So basically if they're like taking an action by checking the box, then it can be a legally binding contract. It's not always like.
And so that depends on what platform you have because I see some platforms just have like maybe a box where you can put in your terms but you just scroll through it. But like they have to take an actual action of like checking a box or you know, maybe making an initial. They have to do something to make it a contract.
[00:25:07] Speaker B: Have you seen any issues with virtual signatures on some of these contracts or checking the boxes?
[00:25:15] Speaker C: I haven't. I think also because most platforms do a pretty good job of like collecting the, you know, like IP address or whatever of the, the people signing. So I haven't really seen any issues with that as long as the people are signing. And most contracts also a lot of people have like a clause at the end saying that like electronic signatures are valid.
[00:25:43] Speaker B: So very good to know. This has been so helpful. I am learning so much about business law and I think this is really important. And again, something that a lot of businesses maybe you're not think thinking about right at the forefront of starting your, your startup or even just kind of in the middle stages. Do you have any recommendations on funding for stuff like law or accounting? How much should businesses be putting into a container for law?
[00:26:12] Speaker C: I mean, you know that it can depend also on what type of business you have because you know, if you have a product based business or brick and mortar, it's probably going to be more than if you're fully like online or online service based.
I typically, you know, if you can budget a couple thousand that would be good.
But you know, a lot of things like you can do step by step. Like you don't have to do an llc, contracts, trademarks, copyright, like all at once at the same time. Usually like my best recommendation is to have a consultation with a lawyer early on in your business. That way we can help you kind of prioritize like what order of things you might need. Because again, like, you know, an online service based business, their top priority is going to be like that client contract. Whereas like maybe an esthetician or something, you know, maybe they're going to be an LLC is their top priority because you know, they're working with like people's faces and they really want to like protect their assets in case they like burn someone's skin off or you know, something like that. So that way you can kind of like set up a roadmap of like, okay, I don't have to do all the things all at once, but at least I have a timeline of like knowing what to budget for in the future.
[00:27:28] Speaker B: Absolutely. Kelly, where can we find your website and working with you?
[00:27:33] Speaker C: Yeah, so my website is kellyjoneslaw.com it's Kelly with an I. And you can also find me on either Instagram or threads at Lawyer Kelly with an I Underscore.
[00:27:42] Speaker B: I love it and I absolutely love your website. When I first was researching and learning more about you. I was just super drawn to your website and you just make it very approachable, which is awesome because I think when you think about, like, law firms and things like that, they're not as much approachable.
[00:27:58] Speaker C: Yeah, they're really not. Which was my goal to try to, like, make the legal slightly less boring and also less, like, scary and overwhelming.
[00:28:06] Speaker B: Awesome. Well, Kelly, I have one more question for you, and this is a question that I like to ask all of my guests at the end of the show. And it's one of those fill in the blank type of questions. So the question is you have to blank to blank.
[00:28:21] Speaker C: Okay.
So you have to protect your business in order to grow it.
[00:28:31] Speaker B: I love it. Gotta protect the assets, yourself included. Awesome. Well, Kelly, this has been so insightful. Thank you so much for your time today and for being on the show.
[00:28:40] Speaker C: Thanks so much for having me.
[00:28:46] Speaker A: Thank you so much for tuning in to today's episode. Kelly's insights on trademarks, intellectual property, and the importance of clear contracts are invaluable for any entrepreneur looking to protect their business. If you've been considering trademarking part of your brand or just want to better understand the legal side of your business, make sure to check out Kelly's website listed in the show notes. And if you enjoyed this conversation, don't forget to subscribe, rate, and leave a review. Be sure to share this episode with anyone who could benefit from Kelly's expertise. As Kelly said, you have to protect your business in order to grow it.
[00:29:24] Speaker B: We'll see you next time.
