Guest authored by Nina W. Gusmar

Q. I just started my own business. Should I be concerned about trademarking?

A. Yes. Savvy business owners know that intellectual property, such as trademarks, are a core, strategic asset. Business owners use trademarks to identify and distinguish their products and services from their competitors.  Anything that identifies and distinguishes products and services in the marketplace can function as a trademark, such as a word, symbol, distinctive phrase, design, product shape, or even a sound or a smell. Undoubtedly, business owners looking to distinguish their product/service from others in the market should seek trademark protection. Only trademarks which are used in interstate or foreign commerce may be registered with the United States Patent and Trademark Office (USPTO).  Other marks may qualify for state trademark protection.

Q. Do I need to worry about copyright or patents?

A. Possibly. Identifying existing or potential intellectual assets that have value in the competitive marketplace is essential to protecting and leveraging such assets.  Copyrights, patents and trademarks are often confused. Although there may be some similarities among these types of intellectual property protection, they are different and serve different purposes. There may be occasions when multiple forms of protection are desired with respect to the same business endeavor.

Copyright law protects the way authors and artists express facts and ideas (but not the underlying facts and ideas). You can obtain copyright protection for a variety of original expressions, including art, sculpture, literature, music, songs, choreography, crafts, poetry, software, photography, movies, video games, videos, websites, architecture and graphics.

Patents protect novel and non-obvious inventions, processes or methods.   There are three types of patents: utility patents (for new useful processes), design patents (for new ornamental designs for an article of manufacture) and plant patents (for new varieties of plants). A registered patent gives an inventor the right to exclude all others from making, using, importing, selling or offering to sell the invention for up to 20 years without the inventor’s permission.  

Q. What could happen if I do not protect my intellectual property?

Just like other kinds of property, intellectual property needs to be protected from theft and misuse. If someone uses your same business name and does a lousy job, your reputation could be tarnished. Also, without protection, someone could steal your idea or business concept and start the same business in your geographic footprint.  

Q.  How much will it cost?

A. The registration processes for copyright, trademark and patents are entirely different. For copyright, the filing fee is small, the time to obtain registration is relatively short, and examination by the Copyright Office is limited to ensuring that the registration application is properly completed and suitable copies are attached. For trademark, the filing fee is more substantial, the time to obtain registration is much longer, and examination by the USPTO includes a substantive review of potentially conflicting marks which are found to be confusingly similar.  The cost of your trademark work will depend on several factors, including how many types of goods and services your business offers.  A fixed-fee price schedule can be provided upon request.  Patents are significantly more costly to obtain.  If you desire to patent an invention, we can refer you to an outside patent attorney who will assist you with the process.

Q. Do I still have rights to a name or ideas prior to filing with the USPTO?  What happens if I do not file at all? 

A. You do not have to register a trademark to have trademark rights. In the United States, trademark rights spring automatically by using the mark in connection with a good or service. However, registration does provide the business owner with additional benefits, such as evidence of ownership, presumption of validity, jurisdiction in federal court, the right to use the ® symbol next to the mark, the ability to preserve use of the mark throughout the U.S. against any users of a confusingly similar mark, and the right to acquire incontestability status after five years of continued use of the mark.  Federal registration is also a prerequisite for bringing an infringement lawsuit under any federal trademark or copyright laws.

Q. Will a fictitious name filing with the state corporation’s bureau reserve my right to use a business name in a state?

A. A fictitious name is any assumed name, style or designation other than the proper name of the entity using such name. Registration of a fictitious name does not provide the business entity with exclusive use of the name. There are no trademark or ownership rights to a fictitious name, and the name is not protected against use by anyone else. As such, the same fictitious name can be used repetitively by different business entities. 

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This blog post does not represent legal advice and merely touches on some of the issues that need to be addressed. No one should rely on the information provided within this post without discussing their individual situation with a lawyer.

I have often found  myself standing up in front of that room at that luncheon, and when it is my turn to give my elevator pitch,  I feel unprepared.  Or, I am at that networking coffee event and it is my turn to tell my colleagues what I do, and I am usually too long-winded. 

So I ask you, by the time that your networking meeting is over, have you heard the other person’s elevator pitch: what the other person does, who her ideal client is, who a good referral is for her and how she differentiates herself in the marketplace?  Doyou convey this information during the course of that coffee?

I took the time here to update and share one of my current pitches.   I usually have to write things down in order to memorize them.  What does your pitch sound like?  Have you ever written it down?  If you cannot convey to others exactly what you do and for whom, how can you expect to build your book of business?  So here I go:

INTRO: My name is Salene Mazur Kraemer. I am a business and bankruptcy attorney with the Business Practices Group at the law firm of Burns White, a full-service litigation and business law firm.

I HELP businesses prevent or resolve business disputes and get business deals done.  Every day, I draft, review and negotiate agreements.  My services are needed in a broad range of business transactions throughout the lifecycle of a business— from incorporation to growth to reorganization to liquidation.

ONE IDEAL CLIENT FOR ME is a growth stage business in at least its third year of operation (with three or more employees, annual revenue at least $1 million).  Perhaps this business is now of a size and capability to finally hire a set of business lawyers as advisors.

AN EXAMPLE OF A CURRENT CLIENT:  Recently, our firm was engaged by a dot com company that tripled its revenue in the last year.  It has two principals and three employees.  This client wanted a tailored, protective, bullet proof set of legal documents to clarify all of the legal obligations and expectations of their customers, employees, vendors, equity holders, etc. We tapped into our voracious appetite for learning, reading, and researching to educate ourselves intimately regarding this client’s industry and business model.  We reevaluated their corporate entity choice and provided a legal memorandum on laws and regulations applicable to their business.  We continue to serve in a strategic capacity, helping them tweak their business plan, working hand in hand with their officers, management consultants, insurance, accounting, marketing, and graphic design professionals to assist in taking this client’s business to the next level. 

A GOOD REFERRAL is someone who is quitting a job to start a business, selling a business, planning for the family succession of a business, filing a trademark, entering into a business contract, hiring employees, independent contractors or sales reps, leasing new space or equipment, issuing stock, borrowing money, liquidating or restructuring.

TRIGGERS:

• When your company is about to enter into an agreement with a vendor, customer, landlord, or lender, think of BURNS WHITE. Let us review the document to make sure it protects your interests and avoid legal action down the road.
• If you are a creditor stuck in one of your customer’s bankruptcy claims, think of BURNS WHITE.  We will protect your interest so as to maximize any recovery you may be entitled to in a bankruptcy case.
• When your company is distressed and you need to evaluate your options, think of BURNS WHITE. We will help you evaluate your options, so that you can move on to the great things that are in store for you and your entrepreneurial spirit.  We work earnestly with management to enable them to keep the corporate suits and ties in the closet and continue working in their own business.

****
WHY ME?  A connector.  Tech savvy.  Results-driven.  A former business owner with an MBA.  A former turnaround management consultant, I am dedicated to helping you get your deal done in the most efficient way.  Cost-conscious, I offer reasonably priced legal services, without compromising technical skill or experience.   Business savvy, I care about your business’ success and will learn as much about your business and industry as I can.

CONCLUSORY STATEMENT: Again, my name is Salene Mazur Kraemer. I am with the Business Practices Group at the law firm of Burns White. We are a Pittsburgh-based law firm, dedicated to reinvigorating our economy one business at a time.

The Dove Ornaments

Today, our office is abuzz with tonight’s impending fancy office Christmas party.  At the same time, my assistant Ann and I have been feverishly prepping our holidays gifts to be sent to clients/colleagues.  And no- I am not sending a box of chocolates.  Working in the fashion and retail industry, my clients don’t want candy (generally), so I wanted to pick out something else that was unique.   

If I had an unlimited budget I would have bought lots and lots of the gifts I chose  (but I don’t) and send them out to so  many of you (maybe next year).  I thought instead I would just repost here what I wrote to that small circle of clients. So many people have helped me build my business law practice in the past few years (you and I both know who you are) and I am so truly grateful to you.   I hope everyone has a safe holiday season and here is to a fun, fresh and profitable New Year for all of us!  As you read my note, click on this Youtube link to watch Andrew Bocelli sing one of my favorite Christmas songs that my kids and I love this year (if this song doesn’t get you in a festive mood, nothing will).

December 15, 2011

Dear Colleague:

     I know putting in one of these scripted notes might seem impersonal, but I wanted to write more than just “Happy Holidays” and “Thanks for your business”.

      Over the past two years, I have worked tirelessly to build my own book of clients/colleagues with whom I have a close business relationship.  I am sending this special handmade dove ornament to you because I am truly grateful for your support.  I would not be where I am today without your trust and confidence.  I love what I do and am building.  For your support, I am truly, truly grateful on both a professional and personal level.

     As most people know, I have always cherished my West Virginia roots.  This year I chose this ornament/stained glass piece for several reasons: 

Our Bird Wedding Cake

•  WV made.   I wanted to support a local WV artist Lynn Gundry.  She made these in her studio in Stumptown, WV, per my color specifications and shipped them directly to me. See other items from WV Living Marketplace.
•  Non-holiday specific.  I wanted you to hang this ornament in your office or at home all year round and be reminded of how your support, cooperation and trust has enabled me to build what I hope will be a life-long practice.
•  Birds.   I love bird stuff, having grown up in the foothills of West Virginia in an idyllic wooded neighborhood of Cove Valley Estates, I have always loved bird stuff.  Fake birds were even on my wedding cake!
•  The symbolism of flight.  When I was in college, my sister got me this plaque about geese and teamwork.   It alluded to this:  As each goose flaps its wings it creates an UPLIFT for the birds that follow. By flying in a ‘V’  formation the whole flock adds 71 percent extra to the flying range.  When a goose falls out of formation, it suddenly feels the drag and resistance of flying alone. It quickly moves back to take advantage of the lifting power of the birds in front.

When I think about helping others in business, I reflect on my geese plaque.  I didn’t want to give you a stained glass goose; so, I settled for the Dove instead. 

      So there you have it.  Thanks so much for your “uplift” in 2011 and I look forward to a fun, fresh and profitable New Year for all of us. 

Warmly,

 Salene Mazur Kraemer

Carabella Fashion Event

     Just a few weeks earlier, my Burns White  colleagues and I attended Carabella’s  6^th Annual Alzheimers Association Benefit  Some Like it Haute event/burger contest/shopping spree fashion show.  This event was so much fun, a perfect girls’ night  out for a good cause.  Over the past six years, Carabella has raised over $350k for The Alzheimer’s Association of Greater Pittsburgh.  Here is a slideshow of some of my iphone photos of the event.

     I had read about how Carol was one of 6 persons inducted into the 2011 Pittsburgh Fashion Hall of Fame  during a luncheon at the tail end of Pittsburgh Fashion Week.   As a business lawyer with a concentration on the retail and fashion industry, I wanted to interview her to talk about her long-standing retail brick and mortar shop.  We sat down before the shop opened, on the  autographed leather couch in the center of her store.  

    Carol and I talked about a litany of things while her ”bellas” (sales associates) prepped the store to open.  We talked about:  How she has built her business.  What drives her.   How important the bellas are to her business, how her business would not be where it is today were it not for the wonderful women with whom she works.  Their Carabella’s At Your Service van.  The psychology of shopping (one of my favorite topics).  Sizing.  Body image.  Dealing with the dynamics of mother daughter shopping tension (with which every female is familiar).  Dressing age appropriate.   Her customer service policies and philosophy.   Their outfit seal of approval.

I also asked Carol about her use of social media or lack thereof. 

     Carol said that, at this juncture, she doesn’t feel as though she really needs to rely on social media for her particular business.   She said her store is somewhat of a throw-back.  She believes in one brick and mortar store with superior customer service.  Carabella adheres to a simple marketing plan:  print advertisements in select magazines, supporting charitable events, and word of mouth.   She emphasized that her approach was about building relationships.   Judging by how busy the shop was at 10 a.m. (just minutes after her sales associate unlocked the front door), it would appear as though her approach works.  Her dressing rooms were buzzing.  I could not believe how busy they were on a rainy Tuesday after a holiday. 

    I, of course, took the liberty to try on a few things too, with Carol’s guidance.  

     Carol has an elegance, sincerity, and eye for fashion that so many of her patrons want to emulate, including myself.  In fact, one customer with bag in tow, said goodbye to Carol, kissing her cheek, walking out the door literally saying to Carol, “I want to be just like you.”  For Carabella’s, word of mouth marketing and superior customer service works, whether  Carabella has Twitter followers or not.

So is your business also a business that doesn’t even need social media?   Facebook, Twitter, Blogging.  I have heard many firms say they have so many institutional clients that there is no need to open that “can of worms”.  I know I have a few social media consultants that would have to disagree.  What are your thoughts on the necessity for businesses to use social media?   

• What kind of customer service are you providing to your customers? 
  

  Carabella Storefront

• Do you have customer loyalty?
•  How much do you know about your end consumer?  Do you reach out to them via email?  Is it just an email blast or a one on one correspondence?
•  What does your brand exude? 
• Do your customers want to be just like you?

As I sit in my office chair, with my new blue Carabella ruffle sweater on, I think we can all learn a thing or two from Carol Kinkela. 

             *Also, Carol was a 2009 Woman of Integrity Award winner, an award presented to only four business woman in the Western Pennsylvania region each year by the Pittsburgh Professional Women.  Awardees are women of distinction who have balanced career and civic responsibility, who share their success by mentoring others and supporting their communities.

     Besides providing beautiful and sophisticated fashions, Carol also supports  many important causes.  The Alzheimer’s Association of Greater Pittsburgh is just one of the causes she quietly and elegantly supports. Carol is noted for supporting dozens of charities including Juvenile Diabetes, Jones Legacy, The Crohns & Colitis Foundation and Relay for Life.

DO’s

     I open up the car door and see a young woman.  Katie Daley, age 22,  walking to her car after her long shift waitressing at Atria’s.  Before I could even ask for a battery jump, she asked me.  Although we both tried to jump the car, we could not get it to work.  She said, “Do you have Triple AAA?” I said, “No.”  She said, “I will call for you on my card.”  The one AAA stipulation was that she had to stay with me until the tow truck arrived,  which she did, patiently for at least 30 min or more. 

I was stunned.  I could not believe she would give of her time so unselfishly.   While we waited, her boyfriend called a few times to make sure we were not getting mugged.  Again, all I could think of was Random Acts of Kindness (RAK)

    I wanted to write about this incident on this business blog and start a discussion about  the extent to which kindness has a place, if any (some may argue) ….  in business.   

      Not wanting to reinvent the wheel here, I found a great blog post “Random Acts of Kindness: Why Kind, Human Brands Will Thrive in a Connected Economy”  written by Miss Jane Muse.  Her main tips for RAK for business owners are:

• Be Genuine.
• Be Personal.
• Be Compassionate.
• Make it Shareable.
• Be Generous.
• Have Meaning and Purpose.

BUSINESS PROFESSIONALS: What does this mean for your business? 

• PERSONAL:  How can you make your business service more personal?  How well do you know your customers/clients on a personal basis?  Does our newly “connected” economy/society demand that we become more personal with our business contacts?  First it was the new notion of “business casual” dressing in the workplace and now the social media firehouse.  Is your business responding to all of this change?
•  MEANING AND PURPOSE.  What is the meaning and purpose behind your business?  How can you evidence in your marketing or via the products or services themselves how genuinely passionate you are about the meaning and purpose behind your business?  See blog post just from today titled “What Business Are You In? Take a Lesson from Steve Jobs“, written by Cordell Parvin about the fundamental purposes of a business.   What is your purpose behind your work? [my purpose-to empower people I like to have a career/business doing what they love to do, and at the same time reinvigorate our regional ecomony one business at a time]
• GENEROSITY.  Are you ever randomly generous with your customer base?  Do you ever take a loss on an item just to be nice and generous to a customer?

         Shortly after I was the beneficiary of Katie’s good samaritan efforts, I experienced another RAK recently when I was shopping at a retail store.  The store owner helped me put together an outfit for a firm function.  She used a very expensive belt to accessorize the dress.  I told her I didn’t need the belt; she could probably pick up on the fact that I didn’t want to spend the money on the item, although I loved it.  She thought the accessory, however, was key to the outfit that I did buy from her and insisted that I keep the belt (for free).  She shoved it in my purse. 

      I will never ever forget this random act of kindness for as long as I live.  This busines owner ate the profit on the belt (and it was not a cheap belt) just because she genuinely wanted me to look as good as I could.   In a mouth-dropping fashion, she was remarkably generous.  Her mission and purpose of running the retail store is not solely to make money, clearly.  Her mission and purpose is to dress women beautifully in quality clothing that makes a woman really feel good when wearing an outfit  from her store, clothes and accessories that she handpicks and buys from all over the country.   Incidentally, I returned to the store two weeks later to stock up on jeans.

    When was the last time you performed a RAK or were the beneficiary thereof?  Give the rest of us some ideas.  What random acts of kindness can you commit today in your home or workplace for your friends, customers, colleagues, and employees?

    Now that I have twice been the beneficiary of RAK in the last few weeks, I will now have to pay if forward.  I will keep you posted on what I decide to do.

Anyway, I just read an excerpt from the Never Eat Alone book that I felt compelled to share, along with tips from Amanda’s book.   

          Ferrazzi  says you must  ”do your homework” before a business appointment.    He suggests the following three (3) things:

1)  “The Internet.  Check out company’s website and google the individual.  ‘Going to a meeting without Googling someone is unacceptable.’”- K. Ferrazzi .

• Also, as per Amanda, you should print out the LinkedIn profile.  See if you have mutual connections and review his or her LinkedIn Groups.
• Check for a Facebook page.  Even though I keep my personal Facebook page private, I guess the statistic is that 77% of facebook profiles are PUBLIC; I find that statistic shocking. 
• Check for Twitter account.   Use search function on Twitter, or see if person lists Twitter account and feed on his or her LinkedIn page.  As we all know, you can really catch a glimpse into a person’s personality through their real-time updates on these socia media outlets. 
• Now do the same thing for the Company!!  (e.g., Facebook page, Twitter account, and LinkedIn profile).

 2) “Go to public library to find books, periodicals, magazines, trade journals, to check for articles written by the person you intend to meet.   If there aren’t any,  read up on the person’s industry. ” -K. Ferrazzi

• I personally would not physically go to a library, but I probably would find out if the person has a blog, written white papers or given presentations on a particular subject.  The LinkedIn profile and Google search should help you find what you may want to read.  A person can upload presentations given to Linkedin (see some of mine here).  A person can also maintain a personal and/or professional reading list on LinkedIn too (here is mine also).
• Do a google search on the industry and see what may pop up.  I  also love wikipedia because it has  such a wealth of info regarding almost anything and can help explain terms of art that your contact may use or has used.  
• A few weeks before the meeting, set up  a Google Alert for the person, industry or the company so that you may get news of any recent developments. 

3) “Ask the company’s public relations department for literature.  Call and explain that you have a scheduled meeting and would like some background information.”  -K. Ferrazzi.

•  I have never before considered doing this.  But what better source for news regarding a company?  I am sure the marketing or PR department would be happy to disseminate information (this is their job).  You can also ask the company directly if they have a Twitter or LinkedIn or Facebook page and ask for the links or Twitter user handle.   Sometimes finding the right social media account can be tricky (especially with Twitter).
• You or your company could also subscribe to Hoover’s or Dun & Bradstreet to find company reports and financial ratings.

4). “Annual reports.  They give you a good idea of where a company is heading and what challenges and opportunities lie ahead.” -K. Ferrazzi

• I have never thought of doing this before a marketing appointment, but Ferrazzi is so right.  Annual reports can be a wealth of key information.  If the company is public, you can find public filings on sites like free edgar.com (or edgar-online.com ). If you are interested in the historical pattern of a company’s stock price, you can get that info for free via Yahoo Finance. 
• When I worked for The Meridian Group, I assessed the financial condition of motor carriers in the country and read annual and quarterly reports on almost a daily basis.  For those us of who are not accountants, you may be surprised by how much narrative accompanies financial statements.  Some of the reports can be very insightful about  a company’s business model, customer composition, industry outlook, negative and positive events that impacted the company’s financial condition, major lending facilities, acquisitions, equipment purchases, etc.

After reading this excerpt, I am going to make a more concerted effort to prepare more before my next coffee or luncheon or mixer.  I hope you do too.

FAQ: Why does my new business need an employee handbook? How can an employee handbook help my business avoid lawsuits initiated  by employees or third parties arising from employee behavior?

Dean: When a company is defending a discrimination claim, the first thing a state or federal agency asks is whether the business has an employee handbook. With respect to policies and guidelines, an employer should spell these out in a handbook.  Assume employees are in the dark and do not know and employers are sophisticated and do know. Handbooks help protect an employer to place all of the rules/policies in writing and in one place, in order to better defend future litigation and to avoid liability in a lawsuit altogether arising from employee behavior.

FAQ: Do you need a handbook if you have less than 10 employees? Am I required to have a handbook in order to run my business?

Dean:  Even if there is more than one employee, it is possible the employee may sue the employer.  A handbook can be useful in defending such action. There is no legal requirement though, that every business must have a handbook.

FAQ: If I open a new business and hire employees, are there specific notices I have to post regarding discrimination?

Dean: Yes. There are necessary notices re: workers compensation and  the minimum wages act. You must post the notices in the workplace. You can buy copies of the required compliance posters online (note: we did not verify the validity of the products offered on the linked site).

FAQ: What kind of information is necessary to have in the handbook?

Dean: The larger the company, the more in depth it will likely be.  Anti-discrimination policies and progressive discipline policies should be described.  Of course in order to avoid future discrimination claims, a business owner wants to make sure he or she is treating Employee A the same as Employee B, throughout the hiring, promotion, or firing process. If in an at-will employment relationship, an employer wants to reiterate that he or she reserves the right to terminate the employee at any time for any reason with or without notice.  The handbook may also detail severance policies and whistleblower laws, among many other topics.  [I like the template table of contents and chart on this site.-srmk]

FAQ: What does a progressive discipline policy look like?

Dean: An example may be:  The first offense is a verbal warning, second offense is a written warning, and third offense warrants a final written warning.  Certain consequences may follow – suspension or termination.

FAQ: How do I maintain personnel files for my employee? What info do I put in the files?

Many small business owners do not have an HR department and do not maintain any personnel files documenting an employee’s work performance. Bad decision!! To defend an employment action, an employer must have a paper trail re: the employee.

      When I opened the brown 100% recycled envelope, the creative invitation to the event took me aback.  It consisted of a set of 8 square green pulpboard reusable and recyclable cards that are to be used as coasters, tied together with string reclaimed from the Pittsburgh Gimble’s department store, closed in 1986.  On the back of each card is a phrase:  “We will work for clean air, we will work for equality, …. etc.”    The WGF wanted to be as green as possible in all aspects of planning the event.

When I got married, I thought I was pretty clever when I made my wedding table placecards also photo refrigerator magnets.   I, however, have never seen an invitation to an event serving a dual purpose, i.e., informing re: the who, what, when, where, and acting as a set of coasters.  

    I wanted to share this with my client base.  The creativity and intelligent planning behind what simply was to be an invitation is inspirational. 

BUSINESS OWNER:  What are you putting out there with your name on it?  Does it stand out from the crowd?  Is it adding value in more ways than one?  Will people remember you?  How cohensive, purposeful is the thought behind the item?

    In 1994, I ran for student government at West Virginia University.   With the hope of mobilizing support, candidates would hand out what looked like business cards to students with our names on them.  I felt cheesy just handing out a card and saying vote for me.  So I printed my name on one side and trivia facts about the university on the other.   On another batch, I put the 10 ten questions you need to ask yourself in order to choose the right career/major.    I got more votes than any other candidate in that election (1,126 to be exact) (tooting horn).  I was politicking with a dual purpose and it felt right and genuine.  I hope this post and the WGF invite inspires us all to be creative when we interact with our clients, referral sources, prospective clients or supporters.   A little bit of creativity, innovation, and thoughtfulness goes a long way.  

“The Women and Girls Foundation of Southwest Pennsylvania (WGF) is an independent, community-based foundation serving Southwest Pennsylvania.  Its vision is to create a region where women and girls have equal access, opportunity, and influence in all aspects of their public and private lives. To realize this vision, the organization’s active mission is to achieve gender equity by investing in public policy initiatives that will result in long-term systemic change impacting women and girls lives for generations to come.”-WGF Website

Here is a photo slideshow of the event with descriptions re: what I was seeing with iphone.  [Left good camera at home].   As usual, I like to retell my experiences with pictures.

In sum, I thought it was a solid opening night event.  High energy. Fun. Entertaining.  Here is also a video of the event at the end of the show under the tent at Market Square.

I will be attending two more events this week.  So stay tuned ….