[JOE SANOK]
This is the Practice of the Practice podcast with Joe Sanok, session number bonus, now, the bonus session for you folks.

Welcome to the Practice of the Practice podcast. I’m Joe Sanok, your host, and I’m so excited to talk today with our guest. We’re going to be talking all about copyright trademark, all those sorts of things that oftentimes we don’t even think about in regards to protecting our business assets, just so many cool and interesting things that we’re going to be talking about. So today we have Devin Miller and Devin is the founder, managing partner and CEO of Miller IP Law, a business that helps startups and small businesses with their patents and trademarks.

As Devin worked for a large law firm helping Fortune 100 clients with their intellectual property he realized that there was not a good resource out there to help startups and small businesses understand intellectual property, including patents, trademarks, and copyrights. As a small business owner, Devin wanted to provide a resource for startups and small businesses. He’s worked for Amazon, Intel, Red Hat and Ford, amazing clients that he’s been working with. Devin, welcome to the Practice of the Practice podcast. So glad that you’re here today.
[DEVIN MILLER]
Absolutely. Thank you for having me on. Excited to be here.
[JOE]
Yes. Well, right at the beginning, say you are an attorney, but you’re not representing anyone in this situation. You’re chatting about things that you know but you’re taking no liability on for any of this, neither am I. How’s that sound?
[DEVIN]
I’m not giving any specific guidance and don’t take anything. Yes, that sounds great and basically just, I’m not telling, speaking to your exact situation. Go talk to an attorney before for any specific questions. That’s great.
[JOE]
At the end of every podcast, I have this liability statement my attorney had me. It says all this stuff. Then at the end, I say, if you need a professional, go find one.
[DEVIN]
Exactly. It’s always like, okay, I’ll tell you what I think, but don’t just go off of a podcast. Talk with an attorney if you really have a question.
[JOE]
Yes. Well, let’s talk about, so we have therapists, counselors, psychologists some coaches, different folks here, let’s just think through the different types of categories, maybe of different types of intellectual property and what people should at least consider in regards to each of those. So the average therapist, they’ve got, maybe they have just themselves, they may have some W2’s or some 1099’s. They’ve got a website, they’ve got blog posts, maybe they have some YouTube, things like that, a logo. What, from that just general practice standpoint, should people be thinking about in regards to intellectual property?
[DEVIN]
I think what would maybe be helpful is just a level set as to what is intellectual property and what are the areas that you may consider? Then we talk about how it might line up. So intellectual property is an umbrella term. So really if you’re to boil down what is intellectual property, the easiest way for at least me to think about it is if you were to think about real property, in other words real estate, your house, your car your money and your bank account or whatever, that’s tangible physical property. You can own it, you can touch it, you can fill. It makes it easy to conceptualize. What makes it harder is when you get into things that aren’t so tangible. In other words, how do you protect all of the ideas in your head and all of the work and research and development or the brand development that you’re doing, or all the creativity that you’re doing.

A lot of those are certainly valuable and they have a lot of value, but they don’t have that tangible. So that’s where intellectual property comes in. Kind of like what it sounds is intellectual, meaning it’s something that’s in your head or it’s more on that intangible area, but it’s still property that you can own. So under intellectual property, there’s really three different areas that fall within that. One is patents and patents are going to go towards inventions if you come up with, whether it’s software, hardware, electronics, or anything of that nature, you protect that under patents.

Second one is going to be under trademarks and trademarks are going to go more towards branding. So that’s a name of a company, name of a product or service you offer, a catchphrase, a logo. All that falls under trademarks under branding. The last one is going to be on the copyrights and copyrights are going to be more on the creative side. So if you think of a picture, a painting, a sculpture, a book, a podcast, a video, a blog post, anything of that nature is going to fall under copyrights. So, as you’re looking at what you might want to consider. The question’s always, what should I protect and what is the value of your business? In other words, hey, are you a brand business? You work off a reputation off of people know you, whether it’s they search you online and find you, whether it’s word of mouth, whether it’s you do a lot of marketing, then you’re really a brand business.

You want to make sure to protect that brand. But on the other hand, you say, no, we create really cool products and really cool inventions and ideas, and we’re a product business or something of that nature. Then you’re going to go to boards, patents. On the other hand, say, nope, what we do is we make awesome viral videos and we make something and we put out a lot of content and it’s catchy and it gets people’s attention. Then you’re a content company and you fall under copyright. So when you’re looking as to what you might want to consider to protect, I’d say back up and say, where is the value of your business?
[JOE]
So where would most, where would like blog posts, YouTube videos, things like that fall, and then also like for a typical practice, what’s overkill because I mean the average person’s not going to spend, I don’t even know how much it would cost to protect all that but to spend $50,000 to protect a bunch of YouTube videos, they get a hundred views, it’s like, who cares? So talk about maybe what to protect, when to protect it, when it’s worth it to protect it.
[DEVIN]
There’s like 20 questions of that. I’ll answer as many as I can and then you can tell me which ones I missed, but yes, so, I don’t know if I have a good enough memory to remember all that before. Within that if you’re to look and say, because you’re right, there’s a lot, you can copyright a whole bunch of every single podcast episode, every single video, every single picture and yet for the most businesses, I wouldn’t recommend it. The reason being is unless it has a core value to it. So you I’ll give the example you did, which is YouTube videos. Let’s say you have a whole bunch of YouTube videos and any given video gets couple hundred views. So not a ton of views, but you’re putting it out there.

The aggregate is still helpful to your customers, your clients. You still can have educational videos, you’re building a following and you’re still saying, hey, none of these are individually worthwhile. If you’re going to protect, you may not protect anything. I’ll give the one exception. If you had a viral video and it has billions of views, then you should shouldn’t probably, you should protect it. You’re going to want to copyright it because then it has that core value, that one thing that you’re going to copyright has that value to it. But on the other hand a lot of times with the podcast as I’ll give you an example, it isn’t any one given episode is the podcast as a whole. In other words, there’s a following, there’s a reputation, using it for client generation, for providing new material.

So it’s not one podcast is a single, but it’s the podcast as a whole, which does have value to it. That’s a lot of times how it works, same thing with blog, articles, same thing with YouTube channels and all of those. It’s the aggregate of the content as a whole and that typically more falls under trademarks. In other words, are going to say, hey, we have the XYZ podcast or the XYZ blog or the XYZ YouTube channel and people are identifying you’re going to that channel or to that podcast or that blog by this reputation and doing that. That was probably where you’d want to protect. Then you’re just simply protecting that overall brand.

So yes, somebody comes along, rips off a YouTube video. You’re not going to be happy, but it’s not going to be that impactful. But if somebody to come along and start to copy the name of your podcast or the channel, or your blog, then you’re going to say no, that hurts a lot more. We put in a lot of work into that. So I’d go with the trademark. Now trademarks are just that they’re protecting the brand. So you could do it either the name of the podcast, the name of the blog, the YouTube channel, or maybe you have a really cool logo or you have something catchy. That’s where you’re going to protect and that’s where you’re going to get starting down to. Does that make sense?
[JOE]
Yes, totally. So for the average counseling practice, is there much that they should be protecting?
[DEVIN]
Yes. I mean the, I would probably, as we’ve hit on it, patents generally don’t make sense. We do have a few, counsel or a few different within the medical industry that do, and it’s everything from doctors to dentists. Then we have a few different clients that they do have different inventions that they’ve come up with. So if you came up with a new way to do counseling, in other words, you created, I’ll make it up, augmented reality way, which is not that far-fetched, but for some of them they have experiential therapy that helps people to work through it for PTSD and for others. Well that one, you may be creating actual new software and hardware to help them with that. You’re wanting to protect that. So there are the occasional where you’re going to be doing innovating or creating something to help your practice.

Most of them aren’t going, most practices aren’t going to pull into that. In other words, you’re what your service is the service you’re sitting down, you’re counseling with them. You’re helping them, you’re walking in through things, you’re giving them information. It’s the knowledge in your head. Doesn’t typically fall in their patents. Probably a lot the same with copyrights. We already talked about that is unless you have something that’s very valuable to your business, you’ve created a really good series. Now, one of the other ones I have seen to back up is if you created, I have seen as an example with kids that have OCD and or that have other or mental disorders or challenges they’re dealing with that they are saying, “Hey, what we’re creating is a series within my practice that is a video series that somebody can come by, they can actually purchase and so I’m not going to be able to reach everybody with my counseling service, but they can offer a video series or a training series.”

That one you may consider copyright, and you can do it all under one copyright. But because now you have a package that you’re selling that it is that full package then you should copyright it. If you don’t fall into either of those categories, which a lot of them don’t the one I would still probably consider is a brand. I’ll give you an example without getting into confidential details with the client but one of our clients, they had a small practice. It wasn’t a huge practice, but it was a good practice. It was growing and they were doing it and they had someone else that came into a town that was in nearby them and started using a very similar name.

So even though they weren’t a nationwide practice, even though they weren’t having a nationwide brand where everybody knows about them, they were having that confusion. In other words, people were trying to find their practice, somebody else, or they would run into the other people’s practice. Somebody would want to find the other people’s practice, they would run into their practice. It was causing that confusion of the brand, such that they came and saying, “Hey, we’re not a huge practice, but we still have to alleviate this problem. We still don’t want when they go to Google and they search for us, they find the other one. We don’t want our clients going over and trying to start them or all of our marketing efforts to go down the drain, even though we’re not huge.” So trademarks are one that usually if you’re going to get any value of the brand, whether it’s reputation, word of mouth, online reviews, search engine optimization, any of that. You still want to consider protecting that brand for your services.
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[JOE SANOK]
So let’s zoom out, so someone maybe starts to build more passive income, like you gave the example of the person that had the OCD course and maybe they’re building podcasts within that clinical space. What should they be considering in regards to when to do trademark versus copyright and all the other intellectual property type of things?
[DEVIN]
Sure. I mean, I wouldn’t say they’re mutually exclusive. So a lot of times, if you’re building, as an example, we use a course. Typically you’re going to end up doing both. So if you did more of the passive income, you’re going to create it. I like the idea of course, because it is that passive income. You have to put a whole lot of blood, sweat, and tears into creating the course, but now once it’s created now it becomes passive because all you’re having to do is direct people to it, sell it and you’re not having to recreate the videos one on one. So it’s a good option I think that continues to gain momentum. If you’re doing that initially it’s going to name of the course, is going to be, what you’re going to want to protect is a starting foundational block because it is going to be one where, what you’re going to direct people to.

What the brand reputation’s going to be is all going to fall into trademarks. So I would start probably if I had to select one or the other. I would start with the name of the course, make sure that’s locked down, because that’s where you’re going to start promoting. On the other hand, if you were to have a course lockdown, meaning you finalize it, you get it all done and you’re ready to go out and start promoting it. As an example, our flat fee for a copyright is $350. If you have the course all done, you can typically do it under one copyright unless it’s a very big course of maybe then split into a couple copyrights. But for $350, if you’re going to say we’re going to put in hundreds of hours or time to edit it to put it together to market it $350 to protect it or protect the course for the content you’re putting in there isn’t that expensive.

So it does get expensive if you had to protect every single video and every single thing separately. but if it’s more of a course in the package, you can file it as a single one. It’s not very expensive. So I would probably, if I really were to put in any sort of effort into a course for that passive income, I’d probably trademark the name of the course, get a copyright on it. That’s where I’d start. There’s ways you can get more aggressive, but that’s a pretty good introduction to how you go about or tackling it.
[JOE]
Now if it’s ongoing, so I’m thinking of like Next Level Practice, so we have a membership community and every month we’re interviewing experts. We have them sign a contract so that we legally can keep reselling and reusing all of their stuff. We have what’s working that we record, we have different courses, but we add to it every single month. So is there a way you can do a trademark where it just captures everything you make within that course moving forward or do you have to keep filing it?
[DEVIN]
So trademarks are nice. It is a brand, mostly. I’ll back up, because there are exception. Most of the time if it’s a trademark, it is protecting, it is going to be encompassing even going forward. So when you file a trademark, you’re protecting the use of a name or or a cash phrase or a logo, but something of that nature with the brand and when you file it, you file it for different categories. So let’s say it was counseling services. I don’t know if that’s too broad or narrow without looking it up, but something along that name, what you’re really doing is you’re saying for these types of products and services, I’m using this name and I’m wanting to stop other people from using this name. So if it was a downloadable course that was for counseling services or something along that or for your practice area, then it’s going to really fall under one trademark and you’re going to be able to do it.

Even if you continue to release content and if it’s within that same description of products or services, you don’t have to do an ongoing or new trademarks. Couple exceptions that I’d give one is if you had a logo and every six months you were switching the logo or updating it or something of that nature, every time you switch the logo, you would have to switch it. Or if you switched the name of the course or did something that was changing the name itself or the logo you’d have to update it. The other time that you would have to potentially, as you’re ongoing, you’re expanding it is if you started to offer additional services or offer additional things to your package.

So let’s say initially, I’ll make it up, initially it was a downloadable course or as an online course. You had a trademark. As long as you could continue, if you did continue to add new content, if it was still under that same category, you’re fine. You wouldn’t have to do anything. Let’s say on the other hand, you also started to offer a flag, which was what everybody wants. They want to offer the t-shirt, the hats, everything that makes it cool and everything else. So then you’re adding on different types of products or services beyond what your initial trademark covered. Then you’re probably going to have to file a new trademark to cover those additional products or services. So if you stay within what you’re doing, what was originally filed, trademark is going to cover it. If you are looking to add on different or dissimilar products and services, you’re probably going to have to file additional trademarks to cover that.
[JOE]
How does it work if you have 1099’s or W2s that are helping create content whether that’s presenting or like guest webinars or things like that?
[DEVIN]
Best piece of advice is get it, is if it’s, let me back up. There are two types of people that you can have work for typically, independent contractor or an employee. An employee, you’re going to pay their taxes. You’re going to offer insurance. They’re going to go through all that. Then you’re going to have a 1099 or independent contractor, which is, hey, we aren’t paying their taxes, you’re not an employee. They can’t make it. We’re just hiring them for a specific thing that they’re going to be doing either for a shorter for an extended period of time. Either way within your employees or your independent contractors, you’re going to want to make sure that you have an agreement. A lot of times it’s an employment agreement. You can have separate ones that are just to cover it if you don’t already have it in there.

Then make sure that you have ownership of whatever they are creating for you. It’s a bit better. A lot of states, if they’re the employee, you have some inherent rights that because they’re an employee that you have ownership of what they’re creating, but that varies drastically state by state and it still leaves you fairly well open if you were to not have some of those clauses that they have. Anything they create that you’re paying for, that you’re under your employee you are basically the owner of it. If you don’t have those clauses, they can potentially have ownership to everything that they create for you and it can create a lot of headaches. It gets about a hundred times worse if they’re independent contractors, meaning employees are already a bit iffy depending on the state you’re in.

Independent contractors, almost without exception. If you don’t have some of those clauses to where what you’re hiring them to, and that could be anything from content, it can be that they get exposed to the materials or they help you to create materials, whether it’s training materials internally, or for courses, anything they create. The default is almost always, if you don’t have that in the agreement, they are the owners, meaning you can still use it, you can still have rights to use what you create or hire them to do, but they can go out, they can use it themselves. They can sell to your direct competitor, anything of that nature. So almost without exception, get an independent contractor agreement. It can be simple. Doesn’t have to be arduous, but what you’re going to want to make sure there’s you outline, is, “Hey, anything that you create that we pay you for, we own, and you have a duty to assign it over to us as the owner of it.”
[JOE]
Wow, lots to consider when you’re having especially independent contractors, help create content. What are other areas that you would say therapists and people that are creating multiple streams of income might not be paying attention to when it comes to intellectual property?
[DEVIN]
I’ll give, not necessarily quite an intellectual property, but I’ll cover it anyway. It should be one that everybody knows, but I’ll hit on anyway, because I see it too much so people don’t do it anyway, which is when you’re forming a practice, make sure to get a LLC or get an S-Corp or C-Corp, form a business. As simple as that sounds a lot of times, people just simply don’t think about it, especially when you get into service-based business, including you’re getting your practice is because you start out as a single person. You start out and you’ll just have people, whether it’s a small office space, you may do it online. You may have, them come to an in-house office and you just try to get it going. I get it. You’re just getting going, seeing if it works and maybe you’re doing it on the side or side hustle or getting your practice up and going, and you don’t think about forming the business.

The problem is if you never form that business. In other words, if you’re just a sole proprietorship or you’re doing it without any form or actual business formation that you’ve done, you’re putting all of your personal assets on the line. In other words, if you were to ever have a client or a customer that come sue you, they say, “Hey X, Y, and Z caused me personal harm. You gave me bad advice. You created this.” Any reason they come after you, if you don’t have a business form, you now just put your house at risk. You put your life savings at risk. You put all of your personal income. Now you can’t stop the people from coming after the business. When you have an LLC, S-Corp, C-Corp, you set it up or partnership, LLP, or some of those other ones, or a wide variety of them, they can still come after the business. They can Sue the business.

But what it does do is it shields your personal assets so they can’t come after all of your life savings, your house, your cars and everything else. So that is not necessarily quite under intellectual property, but something that I see that because it’s a lot of times you start out just doing it on your own or by yourself and you start out small you just don’t think about it until you get that threatening of a lawsuit. Then you’re saying, “Well, they can’t come after me.” If you don’t think it’s a big issue. Other than, so that would probably be the one I’d hit on under intellectual property. I’ll say that we’ve really hit on the ones that I would recommend most of all.

Independent contract agreement definitely get that in place. Same thing with employees, make sure that you own what they create. If you are creating a course, creating something of value, get a copyright on it. They’re apparently inexpensive. You don’t need to copper at every single piece of content you create, doesn’t have value and get a trademark for the brand. Even if it’s just a smaller business, if you are getting anywhere that, any reasonable business behind it, you’re going to want to protect that brand so that nobody else comes along in your local community somewhere else or in nearby town and starts to compete with you with the same or similar name.
[JOE]
Such good advice. Well, Devin, the last question I always ask is if every private practitioner in the world were listening right now, what would you want him to know?
[DEVIN]
It’s probably a very general thing, but I would say the best thing you can do, and it’s a general business advice is get a plan in place for what you’re going to need for your business. In other words, every business, including private practice, including, or whether it’s a product, whether it’s a private practice or anything else, you’re going to get a plan in place and inevitably is going to change, is going to evolve, but knowing the key milestones of what you need to hit and when you need to hit them. That includes whether it’s taxes, whether it’s forming the business, whether it’s getting intellectual property, whether it’s marketing, whether it’s sales, whether it’s bringing on employees.

You’re going to say, when do I need to think about these things? What should I consider? What do I need to have in place to make sure it’s done properly? Then you at least have those milestones so you know as you come along, as you grow that you’re going to be able to do that. Most, a lot of times people fly by the seat of the pants. They don’t think about it until the issue becomes a major problem and then they’re having to address it and fix it in a much more expensive way if they can. Getting plan in place and at least have those know what you should be considering and when you should be considering, and then go out and protect them.
[JOE]
Oh, so awesome. Devin, if people want to connect with you, what’s the best way for them to connect with you?
[DEVIN]
Yes, absolutely, I’ll give three ways depending on how they want to connect with me. If you have any questions on intellectual property, patent, trademarks, copyrights, business, things, LLCs, anything of that nature, anything we’ve covered here, they can get a one-on-one strategy meeting. We offer them for free 15, 20 minute meeting where you don’t have to pay a thing. We’ll just sit down, strategize with you. You can go to strategymeeting.com, grab a one on one. That links right to my calendar. It’s an easy way to grasp some time with me.

Second way is if they just want to find out more about the law firm, more about our prices, about, we have a ton of content, we have blogs, we have videos, we have podcasts, we have all sorts of information, go to lawwithmiller.com, all one word, lawwithmiller.com. That’s a go great way to check out the law firm and everything we have to offer.

The last one I’ll give is I’m not big on a lot of social platforms. I don’t get on as active as I could, but I do love LinkedIn. I’m pretty active there and I’d love to connect with people there. If they want to connect on LinkedIn, they can go to meetmiller.com and that takes you to my profile. So as a quick summary, one-on-one strategy meeting, go to strategymeeting.com, go to the law firm, find out more of lawwithmiller.com. If you want to connect it up with me on LinkedIn, go to meetmiller.com.
[JOE]
Ah, so great. Well Devin, thank you so much for being on the Practice of the Practice podcast.
[DEVIN]
Hey, I appreciate having me here. It was a blast.
[JOE]
You know, there’s all these things that it takes to run a business and to just tighten things up. 2022 for us is a big year of looking at our operations, our flow. We started Practice of the Practice 10 years ago and it’s just continued to grow. At that time it was a total side gig. I was working full time at the community college. I had my counseling practice that was going really well and just had this side podcast thing that I was doing. Now I’ve sold my practice, left a full-time job and Practice of the Practice is all that I do. But to have some of the systems that we started with, still going, that’s something that we’ve really had to change and evaluate and work with some consultants to evaluate for us to get to that next level. What’s that going to take?

You know, the things that got me and the company to where we’re at now are probably not going to be the things that take me to that next level. So find those consultants, find those areas that you need to tighten up the bolts a little bit in your company. So whether that’s law and hanging out with Devin or meeting with consultants like we have at Practice of the Practice over at practiceofpractice.com/apply, could be coming to Slow Down School this summer and hanging out with other therapists and big ideas people for a week where we slow down and then we just rock out your business over at slowdownschool.com.

There’s so many ways that we can help you either through the people we have on the podcast or through the different products and services we offer. If you’re ever stuck, you can just go to practiceofthepractice.com and in the bottom right you’ll see that pop up that says Chat With Us. Jess, our director of details, a real live person that lives in California will chat it up with you and will point you in the right direction if you’re ever stuck.

Lastly, we could not do the show without our amazing sponsors. Today’s show is sponsored by Gusto. Gusto is the top payroll solution. It’s who we use personally with Practice of the Practice, helps keep me organized. I’m a big ideas guy. I like seeing the bottom line numbers in a dashboard, but I don’t like to see all the nuts and bolts and all that stuff. Gusto’s kept me so organized. If you go to gusto.com promo code or sorry for slash [JOE], again, that’s gusto.com/joe, you get three months totally free to check it out, to get started. They’ll help you with getting all your taxes set up and all of that as well.

Thank you so much for letting me into your ears and into your brain. Have an amazing week. I will talk to you soon.

Special thanks to the band Silence is Sexy for your intro music. We really like it. This podcast is designed to provide accurate and authoritative information in regard to the subject matter covered. This is given with the understanding that neither the host, the publisher, or the guests are rendering legal, accounting, clinical, or other professional information. If you want a professional, you should find one.