Episode Transcript
[00:00:00] Speaker A: Hello, everyone. Welcome. This is a labor of love of mine that I created about four or five years ago.
I'm a partner at the law firm called Gerhardt Law, which is what we call an intellectual property boutique firm where we help people protect their intellectual property, patents, trademarks, copyrights and trade secrets.
I am a patent attorney as well with a background in computer science and chemistry.
And I've started my career at really large law firms and decided about 10 or 11 years ago, after 10 years of practice, to devote my life to startups, entrepreneurs and emerging companies and decided that there was a lot of education and empowerment that needed to happen in that space. And so we created the ess, the Entrepreneurial Strategy Series. And we put on topics all related to, to the entrepreneurial startup journey from concept to exit.
So everything in between that you can possibly think of and it lives in our YouTube site. So if you want to see past Entrepreneurial Strategy series, just go to our YouTube site. It is also a downloadable podcast available on 22 different podcasts and so you can listen or watch it or any of our previous sessions.
We are always looking for topic ideas. And so if you have any ideas, please do send it to us. This one came as a result of Steven Friedman, who I'm going to ask him to introduce himself in a second. He's an associate at the firm.
We were asked to do a chapter in a book that was being put out by LexisNexis Publishing. Oh, there it is right there. Stephen showing it on the screen. It is a treatise about employment law. And they came to, Stephen and I, as the intellectual property experts, to write a chapter on the book. And so this is the chapter come to life, basically. And so we are doing things a little bit differently today than most of our Entrepreneurial Strategy series, but I'll get into that in a second. I'm going to let Steven introduce himself. Stephen, please take a moment to introduce yourself. And thanks.
[00:02:12] Speaker B: Okay. Hi everyone. I am Steven Friedman, like David said. I.
I'm an associate attorney at Gearhart Law with him. I've been here for. Sorry, fly. I've been here for about a few years now. A few years now. And in that time I think I've developed a pretty good knowledge and expertise in trademarks and copyrights and I am excited to talk about all that today.
I've been on the ESS a few times now and it's always a, it's always a good time. I like being able to inform and, and, and talk about these things that I know a lot about. And some people, a lot of you guys, are always so curious and you have great questions, too.
So feel free, you know, during the session, throw in any questions you have into the chat and, and we'll try and get to them because, you know, this is, the purpose of this is all, is to just inform you guys. And so if you guys have questions, things you want to know that maybe we aren't hitting on, you know, in the moment, that that'd be great as well.
[00:03:22] Speaker A: Yeah, but, yeah, that's an excellent point, Stephen. Yes, please, you, you'll understand how, how the session's gonna run in a second. But if you do have questions that we're not getting to, please chat them or reach out to me and Steven. We're pretty public. You can get our email addresses. We don't charge for consultations or anything like that. We're very, you know, startup entrepreneurial friendly. So reach out. And we're into, you know, specifics with you offline as well. But yes, we encourage questions. So we are doing something a little bit differently today that we have done in the past before, actually about two or three years ago. It is a pretty big hit, but it will. We want you to be involved. And so we created a slide deck with some true and false questions, just statements. And so you can just, you know, we'll put up the statement and you let us know whether it's true or false or not, just to gauge, kind of, just to gauge the public's awareness of certain topics related to intellectual property and employment.
And then we'll reveal the answer and go into a little exposition about each of those statements. And each of those statements are directly derived from the chapter in our book. And so that's where we're kind of pulling them from. So Stephen is going to be controlling the slides today.
So maybe Stephen, give everybody.
Yeah, maybe give everybody at least like, you know, 15 or 10 seconds to 5 to 10 seconds to kind of chat their answers. So again, we're just asking you for true and false, right? Just if you agree with the statement, it's true. If you don't agree the statement, it's false, then I'll turn it over to Steven to share a screen.
[00:05:00] Speaker B: Okay, I'm going to share my screen now.
Peggy, I saw you. You threw a question in the chat about trademarks. We'll, we'll get to trademarks at some point during this, during the slides. And so remind me to talk about your specific question when we talk about trademarks.
Hopefully this works.
And yeah, our linkedins should just Be our names.
Stephen Friedman. David Pistolski. Hopefully that works. Does that work? Everyone sees the screen.
[00:05:40] Speaker A: Yes, we see. We see the screen. I see the screen. So I think everybody.
[00:05:44] Speaker B: Okay, good.
All right, so let's start at the beginning.
Intellectual property patents, copyrights and other information, including trade secrets, are often the most valuable asset a business can own.
So maybe we might be true or false. We might be a little biased on this one.
[00:06:08] Speaker A: I see some truth coming in. Let's see if there's any.
[00:06:13] Speaker B: No falses. We'll kick you out of the meeting.
[00:06:15] Speaker A: Yeah, listen, at the end of the day, I mean, if you look at any statistical company, and we do have some stats in the book, actually some footnotes about this, but it is the number one asset, like 90%. I think it's like 80, 86 or 89%. I can't remember the exact percentage of companies in the world. Their number one asset is their intellectual property. It is their patents, it is their branding. It is their trade secret.
It is there, you know, copyrighted, you know, copyright. Again, we'll talk about what these actually mean. But yeah, let me start it off a little bit easy. I mean, they're not mental.
[00:07:04] Speaker B: Yeah, yeah. If you think about it, it makes sense. Right? Like if you're selling a product, of course your most valuable asset is the rights to sell that product, is the rights to exclusively sell that product. The Coca Cola formula is their number one asset. You know, it's not their bottling plant.
Right. It's not, it's not any of that. Those things are valuable, of course, but not. You don't have anything without the pat. The trade secret, it would be for the Coca Cola formula, you know, and that applies to all kinds of. All kinds of industries and, and all kinds of things. You know, if you're an artist, your most valuable asset is going to be your art always. Right. So that's it. It really makes sense when you think about it.
Okay, So I think now we're just kind of going to go through some basics. True, false. About the different kinds of intellectual property.
And so starting with trade secrets, a trade secret can be information that provides economic benefit to the owner.
[00:08:06] Speaker A: True or false?
[00:08:07] Speaker B: True or false?
Around 7:45.
True, true. True. I'm seeing a lot of truths that makes. That's good.
[00:08:24] Speaker A: Yes.
We definitely do a lot of work in trade secret. I'm probably the first patent attorney to let you know that not everything has to be patented. You can definitely keep some things a trade secret, but. But it comes with a valuable price.
We on the slide, the first slide before you saw that intellectual property is the right that you have to stop others from doing what you're doing or creating what you're creating or branding what you're branding. It actually is like if you have the patent, trademark or copyright, then you have the ability to stop others in a court of law for infringement. But when you have a trade secret, that's the biggest difference when it comes to the other forms, intellectual property and, and, and, and actual trade secret, which is, which is the fourth form of intellectual property. But the biggest difference between a trade secret is that yes, it, it gives you, it gives you economic benefit. It is something that, that, that, that, that kind of gives you your competitive advantage. But there is no infringement of a trade secret. That's not a thing. So if you decide to keep something a secret and you decide that somebody else is possibly doing something similar to you, then you can't really, there's nothing you can do about it. Because absent evidence that that third party stole the secret from you, there's nothing you can do about it. It's called misappropriation.
And that's why it's really important when it comes to companies and employees and consultants and freelancers and people you hire.
If you're going to tell them your trade secret in order for them to do some work for you, then the only way that that trade secret is going to be protected is if they're under some sort of confidentiality agreement, what we call a non disclosure. We'll talk about more of that in the future. But my point is only in that those circumstances where you get somebody to sign a non disclosure, they then breach that agreement and thus steal or misappropriate your trade secret and then try to do a business of their own based on your secret, well, that's when your protection triggers, that's your misappropriation.
But if there's no evidence of misappropriation or stealing and you just think a third party is doing it in the same way that you're doing it, well done. You are, you are SOL as we say, right shit out of luck. There's nothing you can do in that situation. You can't come to me later and say, well, what do you mean? Like, I decided to go the trade secret route, I didn't go the patent route. And now I think somebody is stealing it.
I'm not sorry, I think somebody's copying it. No, there is no copying of a trade secret. There's only misappropriating of trade secret. That's why we have the cola wars in our country. Right. Coke and Pepsi don't have patents on their method of manufacture and their formulation. And they're constantly trying to outdo each other and there's nothing they can do to each other because there is no evidence that they stole each other's formula to do the things that they want to do. So that's a big difference. It's great protection, trade secret, but it comes with a valuable price, not being able to stop someone from doing what you're doing.
[00:11:33] Speaker B: Yeah, it's definitely something that you have to consider what kind of protection you're, you're trying to go for and, and what, what works the best for your company and how, how I guess that kind of ties into the next slide which should hopefully be, hopefully be a little obvious in the name.
Trade secrets are public information.
True or false.
[00:12:03] Speaker A: Chat your answers.
[00:12:10] Speaker B: Seeing a lot of falses. That's good, good, good reading comprehension for everyone here.
Okay, yes, false trade secrets are not public information.
[00:12:23] Speaker A: Exactly.
[00:12:23] Speaker B: Obvious reasons.
[00:12:24] Speaker A: Trade secret is the opposite of a patent.
A patent is the most public expression of the thing that you want to protect. You are literally spilling your guts as to how your thing works, how your invention works. You are literally taking what's called the intellectual proper deal with the government. You tell them everything about your invention and in exchange make everything public. And in exchange you earn that right to now have the exclusive monopoly. The trade secret is the direct opposite of that. It is the most private expression of what you're trying to do.
Everybody in your organization, everybody in your supply chain, all your people that you're going to tell must be under a non disclosure agreement, period. The end. There can be no breaks in that chain. If you told 10 people and only nine signed an NDA and there's that one person who didn't and one of the nine right, who signed the NDA actually breached that agreement, then you got a big problem on your hands. Because when you go after that person for misappropriation, the one that actually signed the NDA, if he finds out, and it's not that hard to find out, if he finds out that there was a 10th person that didn't sign an NDA, then he will use, the court will, will basically say, yeah, you know what, you're right, you didn't treat it as a trade secret. It was public to that one person. And as a result of it being public to that one person, because you didn't treat it as a trade secret, then the actual person who did sign the NDA and Who did misappropriate it didn't really misappropriate anything because it wouldn't be classified as a trade secret under those and under that hypothetical because that one person you told without an NDA made it public.
And so. Yeah, false for sure.
[00:14:20] Speaker B: Yeah. Trade trade secrets are very interesting to me as someone that, you know, specializes in trademarks and copyrights because our advice in almost every situation in trademarks and copyrights is get it registered.
And that involves, you know, an application with the federal government, the trademark office, the copyright office, and that means making things public.
And that's, that's what makes the most sense in those situations. But trade secrets are the exact opposite. You can't register them with the federal government because I mean that defeats the purpose. Right. It makes it non secret.
And so the whole, the whole idea is very interesting. And you know, it's a, it's a, it's a unique field of IP that involves, that involves its own challenges and it's something where, you know, rather than registering a trade secret with the federal government, doing your due diligence in the trade secret context involves, like David was saying, setting up proper contracts with anyone who is going to be privy to that information. Right. Strict non disclosure and confidentiality type provisions in employment agreements, independent contractor agreements, those kinds of things.
So actually we have one more on trade secrets.
[00:15:39] Speaker A: Oh, I thought we were mixing them up a little bit.
[00:15:43] Speaker B: I think this is the last one for, for a little while. Then we're going to go into other kinds of ip. But this is just about how, how things are determined to be trade secrets. This is, this question is the amount of money expended by a business in developing the information is one of the factors which determines whether information is a trade secret.
[00:16:05] Speaker A: True or false.
James George, I love it. Money spent is irrelevant. Interesting.
Yes. It could be more than just true and false. You can put your comments too. I love that.
[00:16:16] Speaker B: James comments too. It depends. I'm seeing a lot of false, which shows a misconception, I guess.
[00:16:26] Speaker A: Yeah, David, it's true. It's, it's definitely true.
Money does matter. It's actually one of the six factors that go into whether something is constituted as a trade secret.
By the way, this is not, we're not pulling this out of thin air. In 20, when did President Obama leave office? I think it was like 2016. 2016.
[00:16:51] Speaker B: On the last 2017, I guess.
[00:16:55] Speaker A: Yes. On day of President Obama's presidency he signed something called the Defend the Trade Secrets act and it basically codified trade secret Law in America for the first time. It used to be just be a state thing. Right. And so I worked in New York and I and I'm able to stop someone from stealing my secret to work in New York or something like that, or I can stop them in New Jersey. But now it's a federal law and in that law, in that defend the Trade Secrets act, it actually defined what it is about trade secret that makes it an asset to a company, which we said before, patents, trademarks and copyrights are for sure intellectual property assets to a company, but so is trade secret. And so there are some factors here as to how, how, how your trade secret is considered an asset in order for it to be protected, how it provides economic advantage to you or to your consumers or to your customers and stuff like that. And so, you know, it's funny, I guess Stephen kind of said it before, when you want to keep something a secret, it's not so easy in today's world. One, everybody is like, you know, vomiting everything about everything on social media. And so clearly if you're keeping something a trade secret, your marketing has to really be, you know, articulated in a certain way.
On top of that, you need everybody locked down with non disclosure agreements, employment agreements, consultant agreements, whatever the agreement is, there needs to be some confidentiality provision.
And then on top of it, just because you think now to this point, to this last slide, just because you think it provides, just because you think it gives you a competitive advantage, it could already be known or out there or maybe somebody else has it, or maybe somebody files a patent on it already and it's not really the competitive advantage that you think.
And so yeah, so there's a bunch of factors. So usually what we do at the firm, when people, when someone comes to us and says, well, I have something that I want to protect, I'm not sure if I want patent or trade secret. We explain all the pros and cons to each and there might be a situation where you can fall into both of those buckets.
So maybe your method of manufacture could be kept secret, but your actual product can be patented or something like that. Maybe certain algorithms in your software can be kept secret. Secret, but other features and functionalities of your software can be patented. There's a lot of different ways to cut it for sure.
But yeah, back to the original thing, the amount of money you spend on it definitely directly relates to the economic advantage it may or may not bring to you as a company.
[00:19:45] Speaker B: Yeah. So I think this is kind of a good way of showing What I think is kind of, kind of one of the most interesting aspects of IP law, which is that in America we want to protect intellectual property. We want everyone to have that protection. But it also comes with a balance between overprotection, overprotection resulting in kind of a harm to competition in the economy.
And in America, as everyone knows, we heavily value competition and capitalism in the economy and ip in a way, over protecting IP can reduce competition, but under protecting it has the same effect.
And so we really, the law in all of these cases really tries to strike the right balance. And so, I mean, you could see this in the trade secret factors because the government doesn't want to be overprotective. You don't want to say everything's a trade secret and you know, give, give too much, too much protection to people to kind of restrict competition, but you don't want to under protect it as well, because if a company can't rely on the federal government's protection of their ip, they might, you know, choose not to compete in the marketplace in the first place.
[00:21:07] Speaker A: That's right.
[00:21:08] Speaker B: And so that's gonna, that's a theme that comes up in all kinds of IP contexts and I think we'll, we'll see more about it today.
So anyway, we're moving on to patents.
I suppose patents are not an effective way to protect a business's products and services. True or false?
Hopefully the double negative doesn't confuse anyone.
[00:21:34] Speaker A: The Depends. Who wrote Depends? It flashed really quick. Was it James again?
[00:21:40] Speaker B: Yep.
[00:21:41] Speaker A: James, I love your answers. I love it every. You know, it's very funny because it's a very famous lawyer answer to say it depends.
It's true. Right. At the end of the day, this is a concrete one though, but I do think there's some depends to it as well.
[00:21:57] Speaker B: Yeah, I guess you could say it depends if a trade secret would be more appropriate. Maybe. Maybe that's the dependent situation, how you.
[00:22:05] Speaker A: Look at it, for.
[00:22:06] Speaker B: Sure. Yeah. All right, so we say false patents are an effective way to protect a business's products and services.
And you know, David's the patent expert here, but this goes into it. Oh, James says it depends on whether you have the money to spend on lawsuits.
[00:22:25] Speaker A: Yeah, no, but listen, James, James has a good point because, you know, patents, trademarks and copyrights are great intellectual property protection. They provide the power of exclusion. But that means you actually have to actually take your patent, trademark and copyright and actually try to exclude someone that's not excluding themselves. Right. At the end of the day, sometimes Patent trademarks or copyrights are great deterrence for people. Oh, you have one. I'm staying out of your property. You have a trademark. I'm saying off your property.
But there are people who don't stay off property and try to jump over the fence a little bit or put one foot on or, you know, whatever this, or go under, dig all under or something like that. And that's when you have to defend your patent, trademark, or copyright. But so, so if you don't have the money to defend it, then that's, that's, that. That's sometimes bad. However, we do live in a world. Most of our clients are startups and entrepreneurs. We do live in a world that there's a great phenomenon that's happening over the last 10 to 15 years called litigation funding.
And a lot of our clients do this where they don't have the money to stop someone from doing what they're doing or enforce their patent or enforce their trademark. But if it's a good target, then they, we, they basically pitch it to us, and we pitch it to a litigation funder who is basically an investor at the end of the day. And they'll literally, if they believe that they can make money off the potential infringers that you've identified, they'll take on your case and not a penny has to come out of your pocket. And so that's great. So the money, the money, the money factor may not be an excuse, but at the end of the day, make no mistake about it, if you want the ability to stop someone from doing what you're doing or making what you're making, or creating what you're creating, the only way in the world, the only way in the world to do that in every country in the world is to have the registered patent, trademark, or copyright. So if you best, if you have something amazing, it is truly novel, it is truly not obvious, it is truly instinctive, it is truly creative, then why wouldn't you want to protect that right? That is a right that could be granted to you in any country in the world and gives you the power to say, hey, I believe that you're on my property. Prove to me that you're not infringing my property. That's, that's the goal that you get when you have a patent, trademark, or copyright. And then there's the whole thing with the investors, right? Investors love to invest in patents, trademarks and copyrights because they know that you've gone through this process by which you've, you've emerged Victorious and then granted a federal right, you have the entire United States as your protection.
[00:25:02] Speaker B: So I mean, especially with patents, right. It shows, you know, that it's gone through this kind of rigorous examination and that the patent office has deemed it worthy of protection and non obvious.
And I mean if we're talking about investment, a patent is what gives you the right to prevent competition, which you know, in some sense the grand economic sense, we don't like preventing competition, but if you're a business owner, you like having less competition for your business, for sure.
And so that's, that's, that's why an investor would, would love a patent or, or a trademark or a copyright, depending on, you know, the context of the situation.
So here's another patent question about patents, kind of what patents are.
Patents can cover a portion of a product or service.
True or false?
Oh, a false and a true. Another.
[00:26:09] Speaker A: Oh, interesting. Who said false? I missed it.
[00:26:12] Speaker B: GL okay, GL we're getting a bunch of trues.
So the answer true.
Patents can cover a portion of a product or a service and other elements may not be covered in the invention.
[00:26:39] Speaker A: Even if, you know, when somebody has a great idea for something, the first thing that we do, especially if it's based in science, patents are all about science, physics, bio chem, computer science, botany, geology, mechanics, electric, stuff like that. So if they have a great idea for an invention, the first thing that we normally do is a worldwide patent search. Why? Because they're, because we need to see if their invention is truly novel. If somebody else has patented something similar anywhere else in the world. And we need to know. And that's not the end of the story. It's usually the beginning of the story. Why? Because if there is a similarity, then that's what we're not going to get a patent on. We're going to focus on. Yeah, I'm good, thank you. We're going to focus on the differences. It's all about the differences.
And if the differences is a particular feature or function or something smaller than the actual grand system that you created or something like that, then you can for sure get a patent on that specific feature, that specific functionality, that specific improvement, that specific innovation. That's kind of what it's all about.
Nobody has truly invented the wheel here anymore. Everybody is taking an existence existing technology, usually not everybody, but most people are taking existing technologies and they're adding to it, they're improving it, they're in innovating it. And it's those improvements, those specific things that we are trying to get you a patent on. So, yeah, for sure. That's true. For sure.
[00:28:25] Speaker B: Yeah, that was. That's an interesting point. If you think about it. Everything, everything that is an invention nowadays is somehow based on some other invention.
[00:28:34] Speaker A: Correct.
[00:28:35] Speaker B: At its, at its core. Even if it, you know, just the material being used we're talking about is, is, is an invention in some other way. So yeah, patents can cover portions of inventions.
Baby.
[00:28:51] Speaker A: Yes, I do have my b. So just so that you know, I had a baby like 10 months ago. Here she is. Say hi, everyone.
This is my future budding patent attorney daughter. Her name is Avia and her nanny just left, so bear with me.
[00:29:11] Speaker B: Okay, next question.
Competitors are allowed to practice any element of a patent claim with no consequences.
It might, it might help if we explain what a patent claim is. David. I don't. Yeah, so people don't know.
[00:29:28] Speaker A: Right. So basically, when you file for a patent, one of the most important, one of the most important aspects of a patent is the technical or physical description of your invention. So it's almost like if you own a home, if you're, you're, you're, you're. Your, your home is described at the county or in the state. State that you live in. And literally you can go look up your property line of your home so that you know where your property ends and where your property begins. So that if somebody is stepping onto your property, a trespassing. It's the same thing with intellectual property. The patent is the physical description, or should say the claims of your patent application are the physical or technical or scientific description of, of your invention.
And so depending on what your claim says, that will define your protection. So I think that's probably enough context.
[00:30:29] Speaker B: That kind of, it kind of defines it. Correct me if I'm wrong, it. Because again, not a patent lawyer, but it comes up in the application as like, one, the invention does this. Two, the invention also does this. Three, the invention also does this. So all kinds of.
It defines what the claims define what the invention is.
[00:30:49] Speaker A: Exactly. Exactly. Your, your patent can say a lot of stuff in it, but the claims, it's all about the claims. The claims are the money. That's what the investors are looking at. That's what they're investing in. That will be how broader limiting your patent is.
[00:31:02] Speaker B: Yeah. So hopefully that's enough context for people to think true or false. Are competitors allowed to practice any element of a patent claim without consequences?
[00:31:15] Speaker A: Did we get some answers I didn't see?
[00:31:20] Speaker B: No, I think these are for the last question.
We got a True.
[00:31:24] Speaker A: Maybe.
[00:31:26] Speaker B: False.
[00:31:27] Speaker A: False. Eitan Miller.
[00:31:34] Speaker B: Okay. People are unsure, I think. Oh, we got some more. Some more answers. Some falses.
Okay, so false competitor that practices any element of patent claim may be liable for infringement. Obviously text really matters in all these situations, but the court decides ultimately who is infringing and will make all decisions about injunctions, damages, all these kinds of things.
[00:32:06] Speaker A: Yeah.
Basically, when we are drafting a patent application for you, we are trying to get you the broadest amount of protection. And that means having claims that if they are read in a certain way that it will be easy for someone to infringe you. That's kind of how we look at it. And so we try to make them as broad as possible so that it's easier for someone to infringe you as opposed to making them limiting. And then it'll be EAS easier for someone not to infringe you. This is a very case by case basis. I don't think we need to say more on this right now. It's probably a little bit in the weeds.
[00:32:47] Speaker B: James asked an interesting question.
[00:32:50] Speaker A: What's up, James?
[00:32:51] Speaker B: If the invention is useless without all of the elements being implemented, can you infringe? Can you use one of the elements without being an infringer?
[00:33:03] Speaker A: That's a really good question. But again, it depends on how the claim is drafted. You almost have to look at the claims as like a checklist. If there's five elements to a claim that are that must be performed and all five are not performed, then it's possible that there's no infringement. But if they're drafted in a way that maybe only three have to be performed, again, that's getting into a little weeds. Then yes, it is possible that it. If somebody can infringement can infringe a claim by just practicing three of the five claims.
[00:33:35] Speaker B: In that hypothetical, I'll use this opportunity to quickly say when David says something like it depends on how these things are drafted, that is why you get lawyers to do them, that is why you get professionals to do them. And why you don't ask ChatGPT to draft your patent application.
[00:33:55] Speaker A: Exactly.
[00:33:56] Speaker B: Or whatever it may be, trademarks or copyrights or whatever. We're seeing a lot of that nowadays.
We'll say disfavored in the legal space AI very useful in a lot of things.
Don't ask it to do your legal work.
[00:34:14] Speaker A: Right on.
[00:34:15] Speaker B: That is what we're going to say every time here. Okay. So thankfully, moving on to other forms of ip.
Specifically right now we're asking about copyrights. Musical works are Protected by copyright. True or false?
Got it. True, true, true, true. Lots of truths. All right.
Everyone knows what they're talking about. Musical works are protected by copyright.
What are copyrights? Copyrights are the intellectual property, right. That gets attached to anything, any original and creative work.
So what does that mean? Obviously, the work has to be original, meaning it came from you or the author, whoever the author is. And it. That means it didn't come from either another individual or from the public domain.
And creative is a very low bar in the legal field.
You know, courts don't want to be in the business of deciding what is creative and what isn't. And so basically, creativity just means some element of human expression in the work. It means that the work isn't functional.
Right. If the work is functional, then we're talking about a patent.
Some of the lawyers are hungry out there. Don't replace us with AI. Yes, I, I can relate to that one easily.
But yeah. So copyrights really protect anything that you can say is creative, Anything that you could say is original. It has some modicum of creative expression in it. You could protect it with a copyright. Literary works, musical works, dramatic works, and these are all listed in the Copyright act explicitly.
So these are the different kinds of things that you can get copyright protection on and, and, and so on. So I think that's kind of, kind of a general overview of copyrights, and we're kind of going to get back to copyright specifically about, in, in the employment contract context in a little bit.
I don't know if you had anything to add, David, or I can move on.
[00:36:33] Speaker A: No, please move on.
[00:36:34] Speaker B: Okay, let's move on. Trademarks.
The Lanham act governs the protection of trademarks.
This one might be.
[00:36:44] Speaker A: Too hard, maybe.
[00:36:45] Speaker B: If you're not a lawyer.
What do you guys think? True or false? Trademarks are governed by the Lanham Act? No one Google it.
Emmy, maybe it's me asked, do copyrights expire? Yes, they do.
Nowadays, copyrights only last for they, they.
Their expiration date is calculated based on the author's life.
So when the author of the work passes away 70 years after that date, the copyright naturally expand, expires.
There are a lot of different rules. If you are talking about works that were created some time ago before the most recent Copyright Act. If you're talking about works that were created then but not made public, but after, until after that, works that were created by companies, which we'll get into, those have different expiration dates. But the basic rule is the author's life plus 70 years for expiration of copyrights.
We have some truths for the Lanham Act. True, the Lanham act was enacted in 1946.
Trademarks.
What is a trademark? A trademark is basically anything that identifies source of a company. The most common trademarks being names of companies and logos for companies, slogans for companies, that kind of thing.
You know, McDonald's, the name, the golden arches, the big M, that's a logo, that's a trademark. Anything that identifies the source of goods or services being sold is a trademark. The Lanham act, enacted in 1946, creates the federal scheme for protection of trademarks. It is what federal trademark registrations, trademark infringement litigation, all of these things take place under the governance of, of the Lanham Act. Oh, yeah. Ainsley says the, the. The McDonald's music, correct. Even music, and this is where, you know, some crossover happens between the fields of, of ip, even music can be trademarked if it identifies the source of the company that you're hearing. So when you hear the ba ba ba Ba from McDonald's, you know, that's McDonald's.
And so it identifies the source. So that's a trademark. These kinds of uncommon trademarks, like music sounds, even things like smells and colors, have been trademarked before. But they are significantly harder to get rights in compared to the more common trademarks like words and logos. Because words and logos are pretty obviously indicators of source, right? When you see a name of something that in your mind, immediately you think it's a source versus when you hear a sound, it's not obviously indicating source. But McDonald's has done so much work over the years attaching meaning to their sound, the jingle, that eventually it gets what it's called, what's called ex.
Acquired distinctiveness.
So people have come to understand that it is a signifier of McDonald's.
And now James asked, could you use the but up up.
That's in other areas of business, like a video game.
No, you. McDonald's will come after you if you use that jingle in your game.
I'm pretty confident they'll come after you. I mean it to some extent. You know, there's, you know, some, some question about it. But if you're using the exact jingle, the McDonald's jingle in your video game, McDonald's will call that false, false association, false endorsement, and they will come after you. Because at its core, trademark infringement is about confusion of consumers. That is what trademarks were invented to protect trademarks. The intention of a trademark is to protect the consumer base.
And so the whole reason that we have them is so that someone can't come up and use your name or your logo and confuse consumers into believing they're buying from one source when they're really buying from another.
Right. And so in the context of if you use the McDonald's jingle in another area, like in your video game, the likelihood is that a consumer will hear that and think that there is some association with McDonald's. And if there's no association with McDonald's, that's false association or false endorsement. And that would probably be trademark infringement.
Ainsley said, maybe if you chopped it up and used a wee bit of it.
[00:41:40] Speaker A: Hell no.
[00:41:41] Speaker B: Yeah, I would. I would say still, hell no. How I'm taking the question is that maybe you're talking about some kind of parody situation.
And if we're talking about that, then we have a free speech consideration, and that's a whole other ball game. Right. And so that's. That's something else. But yeah, yeah, a little bit of it. If using enough of it that someone that's hearing it.
[00:41:59] Speaker A: Right.
[00:42:00] Speaker B: Identifies it, you're gonna. You're gonna be in trouble.
[00:42:03] Speaker A: Yeah, yeah. That's the key right there.
[00:42:05] Speaker B: Yeah, yeah. So that was an interesting hypothetical. That was good. If anyone else has questions like that, you know, throw them in there.
State trademarks.
[00:42:16] Speaker A: What's Ty's question? It just came up.
[00:42:18] Speaker B: Ty's asking about state trademarks.
State trademarks are good to have, for sure, but in the grand scheme of things, the federal trademark is far more important.
I would say.
[00:42:33] Speaker A: Yeah, I would say.
I just want to say if you are like a hyper local business in New York with New York marketing and New York customers, then you don't even question. Qualify for United States federal trademark. You qualify for a New York state trademark, but then your property line is just New York. So you can stop someone else in New York. But if you decide if there was somebody in New Jersey, which is like right next to New York for those people that don't know, and, and. And there's somebody in New Jersey that has a similar trademark to your New York trademark, then your property doesn't extend to New Jersey because you don't have a. You don't have a federal trademark. So if you have a United States federal trademark, which means you have interstate commerce, meaning you have at least one customer in one of the state and you get all 50 states. So that's the better protection to have. But listen, we have some.
[00:43:22] Speaker B: That's what he's saying now.
[00:43:23] Speaker A: Got it.
[00:43:24] Speaker B: He's saying he's. He plans on selling merchandise across States.
And listen, even if you, you know, if you have a single, if you're a retail location and you exist in a single kind of state, in a single place, you can really qualify for interstate commerce just by virtue of the fact that people from other states come and shop in your location or buy things from your location if you sell things online, these kinds of things. Right. So the being interstate is a pretty low bar and for the most part we're probably going to recommend just getting a federal trademark before a state trademark.
[00:44:00] Speaker A: Yeah, I mean it's so easy to prove that you're marketing like especially if you live like in the tri state area. There's a lot of tri state areas in the world. World.
[00:44:08] Speaker B: Yeah.
[00:44:08] Speaker A: Like so many states border on each other. So it's probably so, so, so easier to prove that you have people coming in from New Jersey even though, even though you think you might be hyper local, you probably have New Jersey customers or Connecticut customers or something like that, you know.
[00:44:25] Speaker B: So yeah, so, so you're small, you're small business. Even though you're local, you could probably get a federal trademark. And you know, obviously you're see you're saying you've seen other organizations with the same name but you know, in those kinds of cases we need more context to really determine what, you know, what, what that situation is going to look like.
Yeah. Ainsley says are we going to talk more about parity? We weren't planning on it because we're trying to get to the employment, how does interact with employment stuff.
And so I think we're getting there. I think we're getting there. Yes. A non disclosure provision may be supplemented with the filing of provisional patent for extra protection.
So this is how, how do non disclosure provisions interact with patent applications or patent protection?
So yeah, Ainsley, if you have a question, just shoot us an email.
So can a non disclosure provision be supplemented by the filing of provision a provisional patent for ex with the filing with the filing.
[00:45:32] Speaker A: True or false?
[00:45:33] Speaker B: True or false? Yes.
If you don't know, just guess. You have 50. 50.
[00:45:39] Speaker A: So yeah, listen, a non disclosure we talked about is an agreement of confidentiality. A provisional patent application is the type of application that you can file with the United States government that provides you at least one year of secrecy. So that's a little bit of a hint.
What do we got? I can't see the answers.
[00:46:03] Speaker B: A few truths. James said you could, but it would defeat the purpose of keeping your info secret.
[00:46:09] Speaker A: Well, that's the hope. Yeah. Let's see what the answer is.
[00:46:11] Speaker B: Right. But, but maybe the, it's. Yeah, the answer is true.
[00:46:16] Speaker A: Yeah, the answer.
[00:46:17] Speaker B: Maybe it's helpful that you, you added the context that a provisional patent includes some level of secrecy.
[00:46:25] Speaker A: Exactly. If you decided to keep something a trade secret like in your organization with all your, you have everybody sign a non disclosure agreement at the same time you file a provisional patent, that's great. Double layer of protection. However, if you decide to go forward to James's point, if you decide to go forward with that provisional patent and convert it to a non provisional patent, which is actually the type of application that gets examined by the government, that application will eventually be public. Right, we talked about it. Pans are public. And so at that point, if you go forward past the provisional stage, then whatever trade secret you had to James's point is blown. So you can do, you can do it at the same time, but you know, at some point you might have to pick one or the other is my point.
[00:47:09] Speaker B: Interesting, interesting.
Okay, anything else to add on NDAs and original.
[00:47:16] Speaker A: Move on.
[00:47:16] Speaker B: All right, let's try and, let's try and move on because we're maybe a third of the way through and obviously got a while a lot to go. All right. A restrictive covenant is a condition that restricts the actions of someone else in an enforceable agreement.
So this is kind of a legal definition question, what is a restrictive covenant?
[00:47:40] Speaker A: But it directly relates to people that have businesses out there. Like if you want to stop from doing something, then you put in what's called a restrictive covenant.
And so is that, is that something, is that something you're able to do in an agreement? Can you, can you force someone to stop doing something or not do something as a result of their employment or something like that?
[00:48:06] Speaker B: Yep, we got some truth. Sounds like it's true.
[00:48:09] Speaker A: Let's see the answer.
[00:48:11] Speaker B: Yeah, let's see the answer. It's true. A strict covenant is a condition that restricts limits, prohibits, prevents the actions of someone named an enforceable agreement. So that's, I mean it's kind of in the name, right. Restrictive being obvious, it, it stops something and covenant meaning promise.
It is, it is a, you know, a term in a, in a contract that says you can't do this. So for example, what we were Talking about earlier, NDAs, that would be a kind of restrictive covenant. If we're talking about non competes, confidential confidentiality type provisions, those are all going to be restrictive covenants because they prevent someone from doing something. And these are kind of key terms in a lot of employment agreements when it comes to protecting your ip. Right. Like we were talking about, if you have a trade secret, you need, you need someone to, you know, not reveal the trade secret. An NDA provision would be a restrictive covenant.
[00:49:08] Speaker A: Yes, correct.
[00:49:10] Speaker B: Right. As long as it doesn't conflict with some, some law. James says because employment, I mean most.
[00:49:17] Speaker A: Contracts can't, can't force people to do things that are potentially illegal, you know.
[00:49:22] Speaker B: Right, yes. And, but you know, maybe that ties into some non compete type things. Which leads into our next question and really wants an A plus. Well, we'll go through your answers and double check.
Okay. Non competes. A non compete clause allows an individual to join a competing business after employment with the original employer. With the non compete clause, there is no period of time that an individual must wait before they can join another competing business. This is kind of a two part question, I guess, which makes it a little confusing.
[00:49:59] Speaker A: Yeah.
[00:50:05] Speaker B: We'Re getting some falses, I guess they haven't been confused.
[00:50:09] Speaker A: Yeah, no, I think it's kind of, I think it's kind of clear.
[00:50:12] Speaker B: Yeah, I'm, I'm confused.
But okay, moving on. False.
A non complete cause prevents an individual from joining a competitor for a period of time after employment. And they can also dictate that you're not permitted to work with certain clients and the extension, things like that.
[00:50:30] Speaker A: Let's. Yeah, I want to break this down a little bit because this is definitely changing in America.
I think that was maybe some of the comments I just saw. I mean, traditionally if somebody is working for you and they hold a very special position in your company and have been privy to certain secrets or whatever, or just like, you know, customer lists and stuff like that, you know, as we speak now, the majority of states do say that if they, that you can put in their contract that if they leave your employment for whatever reason they were terminated or you know, they decide to leave on their own or their contract is up, you can, you can prevent them from competing.
Makes sense to, to an extent. You can prevent them from competing in the same business or even same region or same state as you.
However, this is currently under fire. Now like California has said, no, you cannot do that.
Right. You can't prevent someone who had a special skill to not practice their special skill. You can't prevent them from making money. You can't prevent them from making a living. And that has caught on fire for sure. In New York you have something similar happening. And so for all your, for all of you that are employees or employers, when you get a clause like this, it's it's potentially not valid. And so you might have to push back to the employer. And a lot of the work that we do in this space is directly related to this. People will come to us and say, I want to sign with a company but there's a three year non competitive. I'm, I'm a food scientist. It's my, it's the way I earn living. And now they're telling me that I, that, that if everything's hunky dory, they haven't even accepted the job yet. But if I, if I leave the job, I can't be a food scientist for three years. Hell no. And so that's not good. So these have to be highly negotiated. But because we're in this like gray space where some states allow it and some don't, we're still, you know, at the end of the day, the employer can still kind of do it in some states and the employee might still have to accept it in some states. But it's only going to take this, the knowledge you gain from here as an employer employee, it's only going to take that knowledge. And pushing back to kind of see where this kind of lands. I do think that reasonable non compete clauses should be upheld. Like not preventing someone to not work for 5, 10 years is crazy. But maybe a year, maybe a few months, maybe not in the same, maybe not in the same, you know, city, but definitely in the same state is acceptable. But, but it's still a little bit up in the air for sure.
[00:53:17] Speaker B: Yeah, it's interesting, I think, I mean first of all, yeah, even in states where this is allowed, it really, even even in those states, these clauses are going to be highly scrutinized to make sure they're reasonable. Right. And that reasonableness comes in terms of the geographic scope and the temporal scope of these clauses. Right. So if a clause says you can't work in this field anywhere in America for 100 years, that's, that's unreasonable.
Right. Usually these things aren't upheld unless it's a short period of time, like a year, maybe two, depending on the state.
And only in the geographic area that the company operates in and only in their specific field. Right. Because this is really, I mean it highlights another kind of balancing act that the law tries to, tries to make, which is a favoring between kind of favoring companies and the freedom to contract and all of these kinds of things versus B, you know, the individual protecting the individual, their livelihood. And I mean, in a way the economy as a whole is going to suffer if specialists aren't able to practice in their specialty.
So, you know, you have to cut the, the government, the law has to try and balance between those things. And you know, that's. This is kind of where we're landing. It has to be reasonable. Some states are saying it's never going to be reasonable. Like David said, we might have a few. Do we have a question?
It depends on whether the former employer wants to get negative publicity by suing former employees.
[00:54:53] Speaker A: That's a good point. You cannot undermine the power of social media in these situations. For sure.
[00:54:58] Speaker B: Yeah.
Mm, that's a big deal for sure. At the end of this, the end of this hints towards something else. They can also dictate that employee is not allowed to permit it to work with certain clients.
So that, you know, that hints towards non competes but also bleeds into what's called a non solicitation clause, which is usually a lot more reasonable and favored than a non compete. And that says some, some things like a former employee can't go and solicit clients from their old company or solicit try and like start their own company and solicit employees to join their old, their new company. Those kinds of things. That's, that's a lot more favored because you don't generally need to do those kinds of things to uphold your livelihood. Right. So that's not going to be as. We're not. The law isn't going to be as strict about those kinds of things where they're trying to protect companies.
Okay, moving on.
We're going to talk about copyrights in employment contracts or independent contractor contracts. So the next question.
Copyrights are automatically owned by the company, even if created by an independent contractor.
[00:56:15] Speaker A: Pretty popular situation, right?
[00:56:20] Speaker B: Some falses. We got a true.
[00:56:22] Speaker A: I need to hire someone to create something for me.
[00:56:30] Speaker B: Yeah, feels like a maybe.
[00:56:37] Speaker A: That's a big one too, Jeff.
[00:56:38] Speaker B: Feels like there's a lawyer answer.
Sure there's a lawyer answer.
James says there needs to be a contract transferring the copyright to the company.
Confusing.
[00:56:49] Speaker A: Interesting.
[00:56:50] Speaker B: Okay, so the answer here is false. Copyright ownership by employees and independent contractors is a complicated question that should always be addressed in a written agreement.
Yeah, I mean, where do we even start here?
[00:57:03] Speaker A: This is where I think we should start. If I may, Steve, Let me just start by saying that copyright is the only form of intellectual property that is automatically owned by the person that created it. So I put a pen to paper, I create a logo, I pick up a brush and paint something, I sculpt something, I write something, I am the author, I am the creator. The copyright is automatically mine, period.
If you want, if you're hiring someone to do those things for you, then you need an actual written agreement that actually transfers the copyright from the creator because it's automatic in them to you. Right? That creator needs to understand that I by, by this agreement, a work made for hire, an actual agreement, and call it a freelancer agreement, a consultant agreement, an employee, whatever it is, whatever type of agreement, there is a con, there is a clause that will say I am, I, I am the copyright owner, but by this agreement I am transferring it to you and you will now be the owner without that agreement.
It is, you know, he said, she said it is, you know, maybe it is. Whether I can prove I owned it or not, or whether I made it or not, whether I paid for it or not, whether I had invoice or not, an email, that's all circumstantial. An email is not sufficient. An invoice is not sufficient. A written agreement is what you need to transfer copyrights for the things that you want to own.
[00:58:38] Speaker B: So David brought up what's called a work made for hire.
And so works made for hire is the term used by the Copyright act to define copyrights, which are technically, literally created, authored by a person, an individual, but whose authorship and ownership is attributed to some corporate entity. Because I actually doesn't even have to be a corporate entity, can be another person, but an employer or a contractor based on a written agreement.
And so there are really two situations where you could have a work made for hire.
A, if you're an employer in an employee employer relationship, that's almost always going to be covered by a written agreement. There are some very limited circumstances where you could have, but you could be an employee of a company without an employment agreement, but that's complicated and you know, you don't want to go to court on that.
Or B, if you're an independent contractor, in some cases you can have what's called a work for hire clause in your contract with your technically wouldn't be your employer, but whatever company that is contracting with you to create something and works made for hire, there's a technical distinction between those kinds of things. And when you aren't technically making a work for hire, but you're assigning the copyright to the company or whoever is hiring you, either way, you really want these things in writing. If you don't have these things in writing, like David was saying, it becomes a much more complicated question. Even for independent contractors, if it's not in writing your, your. Your sol.
As. As we said earlier, but if you're an employee, you in, in a lot of cases you're kind of automatically making works for hire. But if you're an independent contractor or you're hiring an independent contract contractor rather and you want to own their copyrights, you really need to have that work for hire co clause in writing or an assignment clause in writing. And that will tie into assignments in other kinds of IP as well.
But we have those a little in the future for the copyright. Ty asked for the copyright. What if the company outlines the details of what a product needs to be? For example, I outline the invention, the interventions, but the staff creates the material for presentation.
I'm not sure exactly what you mean, but in general, if you are writing, if you're writing a contract, the work for hire clause should say everything you do within the scope of this work that you're doing for me is going to be a work made for hire. Right. So even if you're contracting someone to do one thing and they have to do something else tangentially that's attached to it, a well written clause in the contract will make sure that that's also attached as the work made for hire. And I mean that kind of ties into our next question.
Employee copyrights are owned by the company, the employer, even if created outside the scope of employment.
[01:02:04] Speaker A: Yeah, it's an interesting one too by the way.
I just want to say to everyone, thank you for sticking around. I realize that we're a little bit over time.
We'll, we'll probably go another 10 minutes or so and then whatever slides we don't get to. We might have a part two of this. But yeah, thanks for sticking around.
[01:02:29] Speaker B: Yes, thank you. Okay, we got some answers.
James says false unless in a written agreement, and that's on the money.
False unless in a written agreement, the copyright act by default, if you're an employee, the things you author are only going to be owned by the company by default if it's created within the scope of your employment. So if you're a computer engineer and you work for whatever Amazon, all this code you're writing for Amazon is going to be Amazon's property. But then if you go home and you write a book, you know that's not going to be Amazon's property. Unless in theory you've contracted for that kind of thing.
[01:03:10] Speaker A: Yeah, I mean that's also a pretty tricky situation. A lot of our clients come to us with that exact same situation, which is under the terms of my employment, I have a side hustle. Am I able to. And I'm, you know, and on that side hustle, I'm doing everything at home, but sometimes I work from my computer at work, or sometimes I use resources from the like. That's already getting into like, very dangerous territory. I'm not saying you can't have a side hustle, but you need to have a Chinese wall separating everything that you do on the side and everything you do with your company. Because your employment terms and conditions that you probably signed probably talks about this situation especially. And by the way, if your side hustle directly competes with your employer, then you're really in dangerous waters. And so think about all these things when you're kind of doing your side hustles, for sure.
[01:04:02] Speaker B: Yeah. Eitan says unless if an employee use company resources. So that ties into the scope of employment question. Right. When. When a lawyer sees something like is it is something in the scope of employment? The question is defined scope of employment. Right. What does that mean?
There's some obvious cases like if you're at work doing something, but if you're doing, if you're writing something, using company resources, at what point does that fall into the scope of employment question? There's a whole section in the chapter about that. And yeah, it ties. The question is, did you use company resources? Was it for the purpose of the company? Did someone at the company ask you to do it? All of these kinds of things becomes a balancing test that the court will have to kind of question.
And when it comes to contracts, the more detail you put in a contract at the outset, the better. If the contract defines the scope of employment, that makes it a much easier and importantly for us, more predictable what the court is going to decide on whether something is in the scope of employment or not.
Yeah.
[01:05:07] Speaker A: And I just want to say one thing like, like to your point, even if you weren't using company resources, but the thing that you're working on outside of work, completely on your own, directly, again, directly competes with your company, that could be a big problem. And so, you know, that's something that, that you should be thinking about as well, you know.
[01:05:28] Speaker B: Yeah. Now probably violate a whole other portion of the agreement.
[01:05:32] Speaker A: Exactly.
[01:05:34] Speaker B: Yeah. Okay, the next slide we kind of answered already, works by independent contractors and employees that go to company are called works for hire.
[01:05:42] Speaker A: Great. Skip.
[01:05:43] Speaker B: Kind of answered this already. So let's skip it. Everyone gets a free. A free 300 on that question. It's true.
Okay, next question is about employees using a personal device to Access company data may not be permitted.
True or false?
[01:06:03] Speaker A: Ainsley's quick on the true or false. She's like one of the first.
[01:06:06] Speaker B: Usually I see she's on it.
[01:06:09] Speaker A: Yeah, she's on it for sure.
[01:06:14] Speaker B: True, true, true. Depends. Depends on the company's employee. Depends on the company's employee handbook.
[01:06:20] Speaker A: Good point, James.
[01:06:23] Speaker B: True. Well, that's why we have the may not be permitted in there.
[01:06:27] Speaker A: Yeah.
[01:06:29] Speaker B: So true, it may not be permitted.
[01:06:31] Speaker A: So it's funny because we actually draft these types of.
We draft these terms and we draft these employee handbooks and terms and conditions for employees and for employers. And some employers take a very hard line on this, social media, personal devices, you know, sharing opinions, stuff like that.
So it really kind of. It depends on the employee, employee, employer and industry that you're kind of doing in. But yeah, I mean, you know, if you're working for, like in this specific situation where it was contemplating that whole intellectual property situation where if you're using a personal device, like if, like if you signed an NDA for a trade secret to know a trade secret of a company that you're working in, or even a patent that might be filed but hasn't been filed yet, and you're sharing that information on your personal device that could be hacked or seen by someone else, that is a huge violation.
And so you have to be really careful about those things and why. You know, it's funny, back in the day, it used to be everybody had a work phone, phone and a personal phone, and so that line is blurred. These days, everybody has just one phone. And so employers are very cognizant of that and make these delineations when needed.
[01:07:47] Speaker B: Yep. Very important to know what is in your contract. Let's say that's, that's a big deal if you're, if you're an employee and if you're an employer, you should know what you should, you know, be putting things in your contract to protect you. But if you're an employee, you should be knowing what's in your contract because accidentally causing these problems with data, data disclosure, all those kinds of things. That is, that is a problem. So. Yeah, I see we're running out of time. We have. We're barely through half the slides.
[01:08:24] Speaker A: Yeah, let's do one more. For prosperity and for prosperity. And, and, and we will. We'll have a part two for sure. We'll have a follow up to this.
[01:08:37] Speaker B: Okay. This question is about residual clauses.
A residual clause or residual information clause in an NDA generally allows the receiving party of a product or service to use and disclose confidential information received from the disclosing party.
[01:08:57] Speaker A: What do you think? We spent a lot of time.
[01:08:58] Speaker B: What does that mean?
Can you have a. Can you have a clause in an NDA provision that in some situations allows a receiving party to use confidential information?
[01:09:09] Speaker A: Exactly. That's the. That's the best way to put it. True or false.
[01:09:31] Speaker B: We got a true. We got a yes. Joint IP rights.
[01:09:34] Speaker A: We're gonna sit down here and wait.
[01:09:35] Speaker B: Yeah, and you don't even have no clothes.
[01:09:38] Speaker A: Put everybody on mute, even if you can see. Who's that?
[01:09:41] Speaker B: Yeah, I got it.
Not a bunch of trues. Okay, let's move on. True.
A residual clause allows that kind of thing. I mean, this just ties into, in general, the law promoting freedom of contract. Right. Like the law generally, unless it's in situations like we're talking earlier with NDAs or. Sorry, not NDAs, non competes.
The law generally promotes the idea that individuals should be able to contract freely and have any kind of clause they want in contracts. Again, excluding certain situations or illegal things.
So if you can have an NDA, why not the ability to have a slightly less strict NDA, Right.
[01:10:25] Speaker A: Where you are the master of your information, so you get to control who knows it and what they can do with it?
[01:10:33] Speaker B: Yeah. In some situations you might be okay with using confidential information. For example, if you put an exception, and a very common exception in confidentiality clauses is the ability to disclose it to.
Like for example, in contract between two businesses, a business can disclose confidential information to their own employees, assuming those employees are under similar confidentiality obligations. Right. So those kinds of things are very common in, in NDAs or, you know, in situations where you're compelled to do so by the gut, by court or something like that, that's always going to be fine. But those kinds of situations are also addressed all the time in confidentially confidentiality clauses.
[01:11:19] Speaker A: Do we want to take. Does anybody have any final questions before we say our parting words?
Again, I urge all of you, you will get this recording, you will get a recap. There will be a part two.
Stephen and I will do it. And, and we urge all of you to reach out if you have any questions. Doesn't cost anything to consult with us. So please, do anybody have any final questions that we possibly didn't get to, that you may want to bring up here. Now is your chance.
And Stephen, any parting words from you before I talk about next month?
[01:11:57] Speaker B: Parting words? I don't know. Thanks, everyone, for coming out. If you're more interested, feel free to buy the book from Lexis. From LexisNexis, I guess.
Or just reach out to us. That's good enough.
[01:12:10] Speaker A: I see one question there, Steven.
Yeah, we definitely can. If you go for it, we can definitely help there as well.
[01:12:18] Speaker B: Yeah. Does the group talk about becoming franchisees? Yes.
[01:12:22] Speaker A: We actually have a whole ESS on franchise and so look it up. I think it was about two years ago.
It should be on our YouTube ESS site. So just, you know, type Gerhardt Law Entrepreneurial strategy series franchise. We did a whole session on being a franchise because a franchise is directly related to trademarks, which is a form of intellectual problem.
[01:12:42] Speaker B: Franchises are very interesting. It's a very particular kind of trademark license agreement that has to be done in the correct way, otherwise it breaks everything.
So fun.
[01:12:57] Speaker A: Yeah. Listen. Thank you everyone. I want to just say that next month we are veering off the track a little bit. I talked to you about that. There is a. Our firm also sponsors the podcast, a podcast in YouTube creators community.
And so we are doing a joint session between the entrepreneurial strategy series and the podcast and YouTube creators community because many entrepreneurs are using podcasts to create, to kind of market themselves. And so we're talking about podcasting and AI and how that intersects and some best practices there. So that's not going to be on the last Thursday of the month. It's actually on September 16th. And so you'll be seeing some.
If you've joined this group and whatnot, you'll be seeing marketing go out for that probably tomorrow.
So we hope to see you there. We hope to see you again. Thank you for everyone's interaction. We definitely will have a part two and get in touch if you have any questions that weren't answered. And thank everybody. Have an awesome last few days of summer. Stephen, thank you so much. Thank you so much for doing the slides. I appreciate it.
Thanks a lot.
[01:14:07] Speaker B: Thanks everyone for coming. Had a good time.
Bye.
[01:14:10] Speaker A: Bye. Bye. Bye.
