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When It's Time for Patents, Trademarks & Copyrights w/ Devin Miller

Updated: Apr 7, 2022

By: Thoughts of a Random Citizen Podcast



Hey, everybody. Thanks for listening to another episode of Thoughts of a Random Citizen. Today, I have a great interview with Devin Miller, who is a legendary entrepreneur. After obtaining his law and MBA at the same time, he went on to form a number of different companies. While he has an area of expertise via his law firm regarding trademarks, patents, and copyrights, he takes time with us to walk you through the ins and outs of how new entrepreneurs and innovators should be approaching this often complex and potentially confusing subject.


For those new to this space, Devin lays out these terms in an understandable and easy way for anyone who is struggling with this in their own life at the moment. This episode will provide some peace of mind and practical answers and is designed to help those thinking and considering, and contemplating patents, copyrights, and trademarks. Later in the episode, we talk about how this space will potentially evolve in the future regarding NFTs and smart contracts, so interesting insight there. That being said, enjoy the interview we have with Devin Miller.


All right, Devin. Thanks for coming on today. I'm excited to have a legal mind on the podcast as typically it's quite essential to have throughout a startup. Before we dive into trademarks, patents, and copyrights, which is going to be what we're highlighting in this episode. I wanted to talk a bit about startups and what you've done entrepreneurially. You've been, and are still involved in one way or another, with a wearables business for hydration monitoring, a religious products business, a content collaboration business, a DIY, legal services offshoot of your firm. In addition to your firm, first off, how do you juggle all of these things?


That's a fair question. I don't know [laughs]. I think I enjoy all of them. I always joke, but there's a lot of truth to it that my hobbies are startups. In other words, typically, if I have some free time, or my mind tends to wander, it usually goes back to hobby, or to some startup either that I'm working on or a new idea that I have or something of that nature. That's one thing, but then the other is, I have a great team around it, so a lot of the businesses have a great team that helps to manage and to build things and otherwise do it because I certainly wouldn't be able to do it on my own.


Probably the last point is just that a lot of the businesses, there's a couple that are outliers, but a lot of them, they tend to leverage a lot of the same resources, a lot of the strengths, and the teams and that we built around. It makes it nice that even though they're different businesses, a lot of the things we've learned from one another and there's resources they tend to share, and makes it so that they're more easily manageable.


Okay, nice. Speaking of those outliers, I was really curious about the first one I mentioned now, wearables business for hydration monitoring. Can you just quickly elaborate on what exactly that is and what you offer there?


Sure. That one's a bit evolved and from hydration, but I can get into that. That one was one where-- I was doing my law degree, my MBA degree at the same time, so I was doing that dual degree. They had a business competition that came up where you go in, you meet all the other people, or you get into big groups, you don't know anybody, you form a team, and you do it that way, so went to the initial meeting, formed the team. We entered the first year and took second place. We did it with a product that was making gym bags less smelly. It was a fun idea. It wouldn't really ever go anywhere. We came back the next year brainstorming and couldn't really think of anything, had some stupid ideas that would never work.


One of the ideas is we were brainstorming as I was walking back to the college department at that time that came up was, I was into running a lot of the time. I'd done a couple marathons and thought it'd be, "Hey, wouldn't it be cool if you could monitor your hydration level when you're running to be able to perform better?" It has other applications, whether it's military and firefighters, or for elderly care. I had a lot of applications. That was the genesis of the idea. Long story short is, we did it with the competition. All of us were graduating going other places, so I thought, "It's not going to work to try and run this across the country."


I brought out all the other people, brought on some other people that I knew, built the business up, got on some investors, and then about the time we were getting ready to take on the next round of investors to bring it to marketplace, we had another business that we'd come in contact with that was in diabetes monitoring, and they were doing it more from a SaaS perspective or Software as a Service. A lot of the technology had some pretty well overlaps. Took our business, took their business, merged into a new business, and that's where it's at today. They've done some soft launches, have some clients on board, and then a lot of the technology will have launched towards the end of this year, so end of 2022. That's a much longer story to what was a short question, but that's a little bit of the genesis of that business.


Wow, that's incredible though. Just quickly highlighting again all of those in which you're operating in, has there been one that has been performing best or maybe worse if you want to highlight that and this post-pandemic, apparently, maybe not so post-environment?


Each business is doing well in its own way. I think they're all set up to be different. A couple of the businesses on that list, we've launched or we soft-launched, and then we've learned some things as we launched and we've pivoted. The content creation, that one's a bit adjusted. It was originally just purely content creation where we've ended up adjusting it to bit as more on website design and website development, a bit on the SEO side just because we found that that was a better app for a lot of what we were setting up was a better fit. It was really originally focused on the content creation and that's still an aspect of it, but it was probably a bit too narrow of a niche. That one's one where it was hard to just--


People weren't just thinking about content creation. They were looking at the bigger picture. In order to find those clients, we had to adjust that one. That one, a bit early to tell. The one that's the wearables, you already mentioned, that one's doing well and it's continuing to grow. I'm less actively involved with that one, taking a bit of a step back with some of the other businesses. Still have ownership, still participate on some aspects of it, but not in quite the day-to-day. The religious products one, that one was always intended to be smallest. It's a fun family business. Makes to few $10,000, $15,000 a year. The thing I love about it is I'm able to employ my son. My son's 11.


Oh, nice.


He come in. He gets to have his own little office. He gets to work on some of-- They're pretty simple products, so actually helps with making the products and getting him ready to ship, and then he gets it. I love that business, not because it makes a ton of money or it ever has a huge growth potential, but because my son and some of my kids got to be involved with it.


That's key to what entrepreneurship is as well is doing something that you actually enjoy as opposed to just doing it strictly for the profit. I feel why most entrepreneurs do what they do is because it's a hobby that evolves into what we create. That's great. I would ask you a bunch more. You seem very keen on this entrepreneurship, but transitioning from what you do day-in and day-out to trademarks and patents and copyrights, one of the things you discussed with me before was about how you leverage trademarks and patents. Can you elaborate for the listeners what exactly that entails?


Yes. I'd say the first level set is what is a patent or a trademark or copyright because in order to understand, if you need them or what the value is, you probably need to understand what they are. Really, the very genesis of what intellectual property is, it's really, if you're to think of real property, say you own a car, you own a house, you own something, you have something physical, tangible, so you own that you can say, "I own this physical thing and it makes it easy to conceptualize."


What's difficult is, let's say, you have an idea or you have a product that you want to develop and you put in a ton of time, sweat and blood, and tears type of a thing into developing it, and yet, most of the value in that is in the development because once you have figured out, it's like the magic trick where once everybody knows how it's done, it's easy to recreate. Once everybody knows what your product is and if it's a good product, they can always reverse engineer it. It's hard to capture the value of all of that blood, sweat, and tears to create a product or create a brand or something of that nature, and that's where intellectual property comes in. It's really what it sounds like. It's property, but it's on the intellectual side of that, ideas and all that research and development, and how you capture that in the value.


With that, there are three different or intellectual properties in umbrella term. It includes three different things, patents, trademarks, copyrights. Patents are going to go towards capturing the value of an invention, so something that has a functionality, it does something, and that can be software. It can be electrical. It can be mechanical. Sometimes, it can be food. It can be pharmaceutical. There's a lot of different fronts, but it captures that invention.


Trademarks are going to be more towards brands. If you think of name of a company, name of a product, a catchphrase, a logo, anything that's on the branding side, and you want to capture that value, that's what you're going to do with the trademark.


The last one is going to be on copyrights. Copyrights are more on the creative nature, so something that has that creative aspect to it. A book, a television show, a movie, a sculpture, a paintinga photograph, anything of that nature is going to be under copyrights. Again, you're trying to capture. Taking a photo, especially nowadays, you just right-click, you sit there on your computer, do save as and now, you've got the photo, and yet, somebody took all that time to figure out what the good photo is. They did the lighting. They did the editing. They promoted it. They got it online. All that takes time and effort.


While it's easy to right-click save ads, there's a lot of value too. All of these are capturing that value as far as both as defensive posture to protect others from taking it but also as an asset of the business that you're capturing the value of creating it. That's where intellectual property and those things come into play.


Quickly on one of the last things you said there with those photos, how with the new age of technology are those being protected?


With all of them, it's going to be a bit of, I don't know, cat and mouse sounds right or is quite the right term, but you're always having to be diligent in watching out for them, so two under the extreme. Let's say you take a photo as an example. You put it online. On the one sentence, it's easier for everybody to find when they come across it and they like it. They go onto Google. They search for different photos. Google comes up with all the photos. A lot of those are copyrighted. Somebody downloads it. Those on their website or those in the marketing material, or does whatever, now, they've already copied it. That's one side of the downside of the technology makes it very easy to copy.


On the other side, it also makes it a lot easier to track. You can do it with Google and a lot of other services, they do reverse image searching, which basically means you upload a photo. You can go and find almost every instance of it that is being used online. Somebody's copying it and not is infringing your copyrights, they're not paying you for it. They're not doing a license and they're using it.


Now, you've just found every instance of people doing that, and then you start going out, sending a cease and desist letter, filing lawsuits, or otherwise recouping the damages because people aren't doing it properly. It makes it easy on the one hand to copy it, also makes it easier on enforcing it. For businesses. They have to have an active plan as to what level of the aggressiveness they're going to get on enforcing it and then how, or what that plan might be.


Sticking with that same line of thought, obviously, photos can extend to a bunch of other types of businesses, but we're using this for simplicity's sake.


Sure.


What would you say to someone who has the issue of that specific one photo is being used? Do you have to copyright each photo that they take and post online or is it you have a umbrella essentially? Is there an umbrella copyright?


Kind of both. If you were wanting to just have broad-spectrum protection, say I've got multiple photos, I want to file as single copyright and just have an ability to protect or do that all at once to reduce costs, you can certainly do that. That's an option. The one drawback to that option though is, if you file it as a whole bunch if you were wanting to go out and license it. In other words, you want to do license particular photos or a viral video or something that you know is creative or a painting or something of that, if you lump them all together, it makes it much more difficult to go out and license them individually, and so people are paying you for each one separately, because typically what you're licensing is a copyright.


If your copyright includes 20 photos, then generally you're going to be licensing out all of those 20 photos. Now, you can break them out, makes it more difficult, makes it more complicated. A lot of times, if you have one thing, if you write the next Harry Potter and you want to license it and license that out or something of that nature or Tom Clancy or Lord of the Rings, take your genre, but then, you're saying, "I probably want to do that separately because it has an innate value by itself individually." If on the other hand, you're saying, "Hey, we've got a whole bunch of photos, have a gallery, don't know which ones are going to be successful, to have protection with all of them, then I'd follow them all as one, reduce that cost," and then you can go through the work of splitting it out if you have one that has enough value to do so.


Understanding all of that a little better, what advice would you give to someone who is debating when they're in the early stages, "I'm thinking about a patent, I'm thinking about a trademark?" At what point do you think that they need to take that leap?


That's always specific to each business. I can give you a few guide rails or a few things to think of. One is if it's just in an idea stage and you have a cool idea or cool concept for a business, maybe a great brand, but you haven't done anything yet, you're probably too early. If you haven't done anything besides have the idea and spend five minutes, googling it, do a bit more research. That one's pretty early on. Let's say, now, you've taken it beyond that you've either started to put money into it, develop it. You're starting to go out and pitch it to investors or looking for partners or do something more active, then the question becomes is, if you're reaching a point that it's going to be an ouch factor to your business.


If somebody to come along, copy it or otherwise take it and you weren't able to do it, then you're going to have to consider that you want to protect it because it has inherent value. To give you an example, let's say, you have a brand. You're in the early stages. You have the brand. If somebody come along, copy it, you're going to say, "Well, we could always rebrand. It's not going to be that big of a deal. We haven't really put any marketing dollars in it. Haven't really done anything to build brand awareness or otherwise put any effort! there." Why you don't want to do it? It wouldn't be as nearly as difficult.


On the other hand, you're saying, "Hey, we're getting ready to launch marketing campaign. We're going to do online ads. We're going to do television spots. We're going to do X, Y, and Z." You're saying this going to be a significant investment in the brand because we think it's worth it. You got something to protect. Somebody comes along and copies that brand or otherwise boxes you out from using it, then you are saying, "Well, now, we put in a lot of effort. That's going to be a lot more of an ouch factor to do that." That's my best general rule when you're doing that.


Now, one other thing to think about is, generally within primarily patents and trademarks, but copyrights to a lesser degree, being first is always better. In other words, whoever files on the patent first, whoever files a trademark first is always in the better position to have protection and to be the owner of it. Generally, the problem is that if you wait too long, somebody else comes along, has the same idea, similar idea files on the patent first, they can box you out from being able to pursue your own invention or your own product.


Same thing with the brand. Let's say you have a great idea for a brand. You just barely start to build a little bit of traction, only to come to find out somebody else already owns that brand before you or somebody filed on that brand after you either because they thought it was a great brand or just happened to be a coincidence, you can get boxed out from using your brand and you have to rebrand, so general rule is if you're reaching that ouch factor, that's one good guideline. The other one is, always think about earlier is better within budgets and within ability to do it.


In that same light, I know that there are scenarios in which when you file for a specific brand like Nike and retail, it's only for that specific industry. There's obviously broader protection, but can you elaborate on that scenario?


If you go to a famous enough brand, they get special protection because they become so famous to everybody. If you do a Nike or an Apple and everything else, it's pretty well across the board that everybody thinks about that brand, but for 99% or 95% of the rest of the brands out there, they still have to. There's a little bit broader protection, so don't go copy Nike, no matter what I say or Apple. It's going to be a bad idea or Disney or something of that nature.


Generally, the way trademarks work is, when you file for a trademark, you have to file for different categories or what the trademark office calls classes. They're basically saying, "Hey, when you file for a brand-- and let's just use an easy example, a word. We'll take Nike as an example, pretending they're not so famous or not so big. You file for Nike, when you file for that trademark, they're not going to say, "You can't just own the word in every possible usage of the word for every conceivable type of business." You have to say, "What are the products or what are the services you're offering?"


If you take Nike, they do athletic wear sports gear apparel. They don't do anything in restaurants. They don't do anything with automobiles or airplanes. Assuming that they're not famous, they don't own those types of areas of the industries because the standard for trademark is what's called confusingly similar, so you own whatever your products and services are and anything that's confusingly similar. To give you an example, let's say Nike's already out there. You wanted to go start another business that was athletic wear sports gear and apparel, the name of your company was going to be spelled N-I-K-E-E. You add an extra E. That would be confusingly similar. People are going to see Nike. They're probably going to think even Nike with two EE's is going to be the same business or something associated with it, or otherwise have a relationship. It causes that confusion.


That's where the categories also come in, because if you said Nike with two EE's, but you started an airline business, and it had nothing to do with that athletic wear sports gear and apparel, people are going to say, "Well, they're in a different category. Is it a different business?" It's not likely to be the same kind of thing. Who would think that somebody that makes shoes is also going to run an airline? Pretty different. That's why when you file a trademark, you file for different categories or different classes to indicate the products and services that you're covering or using this brand for so it allows other people that also may want to have the similar word but for completely different brands allows them to coexist.


Moving on from that, can you elaborate on how one goes about understanding if that trademark or copyright or patent has already been filed for because it seems to be not super straightforward, maybe a bit costly as well for somebody who's in that borderline, "Maybe, I'm about to decide to do it, maybe I'm not," and then they don't even know-- because you have to pay an X amount. Can you elaborate on that scenario for us?


Yes. The shortest answer is that if you don't know how to do it, you should probably go hire an attorney. In other words, that's going to be your safest, your easiest answer to do that. Now, on the other hand, if you're a startup or a small business, the problem you always get into is you have more things to spend money on than money to spend, and so you're always in that catch-22 to where you're not able to do everything. You have payroll, you have product development, you have marketing, you have sales, you have rent, you have legal, and a lot of times, you're saying, "At the point, we're out with a business, we can't cover everything, and so because we can't cover everything, we have to triage."


That's why I said, always best to go to an attorney, if you're saying, "Well, if I really need to go an attorney, what are some steps that I can take to at least get an understanding or a bit of an idea?" On the trademark side, you can go to the US Trademark Office. They have a database where you can search all the trademarks out there, and you can get an idea. Now, if you're not experienced and you don't know exactly how that works, that one is going to be sometimes difficult because you may see trademarks and you're saying, "Oh, well, their spelling is a bit different," or "Yes, their products are similar but we're different. It's not the same product."


You're probably not going to have a lot of that experience to be able to get a better feel for it but you can go and see. "Hey, does anybody else have the same brand they're seeing on the same name of the company? Are they doing it for the same product we're contemplating?" You can at least get that initial feedback. You're saying, "Hey, if I can search this word and somebody pops up that has the same product, does it make sense to go forward?" Now, just because they don't pop up, it doesn't mean you have a clearance, and I would still go talk to an attorney.



Devin Miller IP Law Firm about Innovation


If you're going to go and start to really invest in the brand, you're going to want to make sure that you still have that clearance, but it gives you that first step. Patents are a bit harder because patents are a lot more complex. You can go to patents.google.com. There's probably the easiest user-friendly database. You can go search and see all the patents out there and what other ideas, and you can keyword search. The difficulty is patents aren't written in a language that's very normally understandable or plain English. It has a much more legalistic approach.


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