Tis I, Lord Podcast. Are you yearning to equip yourself with the confidence to record?
Elijah, the skilled podcast professional, is preparing himself for a tale of tools and skill that only a mighty podcaster may employ in one's podcast journey.
Elijah, I do believe that we shall teach our weary wanderer the confidence that they strive to achieve. Shall we start a podcast?
We shall. It's settled. Let's start a podcast.
Vicki here is the least boring lawyer you'll ever experience in your entire life, even though we're talking about IP and copyrights and all those things that she nerds out on, but nobody else cares.
But you should really care when you're starting a podcast. Vicki, thank you for being the coolest IP lawyer on the planet. Appreciate you joining.
Do I get an award? Can I get a plaque that says that? Because it's kind of like a plaque.
I can afford bragging rights. That's the budget.
I mean, okay, fine. I'll take bragging rights.
I'll sign up for a Starbucks gift card and send it your way.
No, that's fine. Nothing tangible. Just like a plaque that I could just hang in the background and people could be like, oh.
Just something meaningless that only you care about.
Yeah, that's fine. Yeah, that's right.
Anything to stroke my ego.
I'm with you. Absolutely. We all need a little boost of confidence, even if it's just ourselves.
Totally. Exactly. Can you educate the uneducated about IP? Can you give us an idea what that means and why we should care? Start there.
Yes. Well, let's talk about it in the podcast sense, right? Because that's what we're here for.
So there are two, maybe three types of intellectual property. That's what IP stands for that are relevant in the podcast sense.
And nobody really talks about them. Nobody really thinks about them because it's not fun to think about stuff like that.
So the three types of intellectual property that really can affect the podcast and you as the owner of the podcast, your rights, that is trademark.
And the trademark is really just the name, the logo, any sort of tagline that your podcast goes by.
And that is very important. And I'm going to talk about that in a minute. Why I just want to list them first.
Then you have the copyright, which is sort of the creative aspect of it. Right.
So you have the copyright, which is like the recordings, the jingles, the things like that, the things that people sort of connect to your to your podcast.
But, you know, if those things get stolen or if someone comes along and starts using them improperly, you want to be able to make sure that you can get that under control.
So you want to be able to make sure that you can get that under control.
And then you have the copyright, which is the kind of the
desktop type thing or the kind of what is that tree background stuff that you're showing that makes you ready for the event.
ups skull.
A do you know what else that is, right?
Project!
piece which is the trademark piece right so like I said trademarks are your
podcast name your logo your tagline right and why is that important well
think about it right like if you are starting out well first let me let me
let me let's talk about statistics right and I don't know if you know this
because I did this I looked into this a while ago but do you know how many active
podcasts are out there right now like do you have a number 300 500 million some
bonkers number yeah but that's insane right like how many people are doing
this and it's like every day there's a new one right and so like everybody
puts out this podcast thinking they're gonna be like the next best thing yeah
but like sure you can be right because you you can hit it big but if you're
just gonna go out there and you're just gonna like wing it without having any
sort of strategy in place and then I'm not just talking about like the
strategy for your podcast and why your podcast is unique but your IP strategy
which again most people do not think about you're not gonna get anywhere
right because these things you have to build this sort of foundation for your
podcast if the plan is to leverage this podcast and eventually you know sell it
take it to Spotify do whatever you want to do like if you're fine if you're
cool just like doing the podcast for you know a couple of people and you're just
finding it fun and it's not a business for you then do whatever you want but if
you are really thinking about it in like the big sense then it makes sense to be
prepared because like you said three five million I don't know how many of
them are out there but they're all trying to do the same thing so if you
are not protecting yourself if you're not differentiating yourself from the
start it's gonna be really hard to do that and so the trademark for example is
one of the ways that you can use to leverage whatever you're trying to do
right so the trademark will protect your name your logo your tagline and you
start with a really unique name right because if you actually go and you look
at all those like three or five billion podcasts like I work with podcasters all
the time right so they think that oh I'm so unique I have this like really unique
name and I'll just literally I'll do a quick Google search like I'm not even
talking about the trademark section I'm like really do you know there's like 12
other podcasts with the same exact name so how would somebody who's looking for
you find you if there are 12 with the same exact name right and so when you
have this trademark you have the exclusive right to use that name and
exclude others from doing the same so that trademark if you're planning on
doing something big with this podcast ends up being really important right and
at the same time you also are protecting yourself in the sense that when you are
doing this trademark registration and search is like a whole formal process
you're making sure that there's already nobody out there doing the same thing as
you and you're not the one stepping on any feet and I think I showed you like
the content that I did on that a while ago which is Kristen Bell a couple of
years ago started her own podcast and she was talking about you know
inspirational women and so she started this podcast and it was called shattered
glass I want to say right so she thought she was being unique just didn't bother
to do a search didn't bother to do anything just started this podcast she's
a very big personality obviously I was listening to it and then I noticed four
episodes in the name changes to we are supported by and I know where that came
from because her husband has a pretty big podcast armchair expert and that's
like a phrase that he uses in his podcast and I'm like why did they
suddenly just change the name of this podcast that everybody knew by this name
it was like related to the content of the podcast was a great name well it
turns out that there was already a shattered glass podcast doing the exact
same thing for like four years really like easily discoverable right like
you're Kristen Bell you probably have lawyers you probably have the ability to
Google but yeah and so it happens all the time it happens all the time like I
get podcast clients that come to me say you know what I have this great name I'm
gonna and I'm just like well did you at least do a Google search like are you
sure it's available and then literally just a Google search like you don't even
have to go too much in depth and you're like there's like 15 of them out there
that are like pretty much the exact same thing that you're doing what extent you
have to get to Vicki to be exhaustive or is that something that you would take on
part of your package to you know do all that's a great question
exhaustive again Google search tip of the iceberg exhaustive really is like a
full-blown trademark search because if you're gonna go ahead and you're going
to register it with like in the US it's the USPTO if you're in other countries
it's there whatever trademark office is over there you really do need to make
sure that you have that exclusive right because if you don't a you're gonna
waste time and money trying to register something that can't be registered and
B you're putting a big-ass target on your head and you're like please sue me
because I'm now trying to register this thing that I can't register so it's a
very thorough search it searches again at least in the US it searches already
register trademarks it searches state databases to make sure because if you're
trying to use something in a trademark capacity it requires a very specific
search so just because something is out there doesn't necessarily mean that
somebody's using it in the trademark capacity it's sort of it's an analysis
it's a legal analysis and people are free to do it on their own like I have a
anybody's interested in wants to do it on their own I have a course you can
take but to do it on your own but it really is sort of an extensive legal
analysis with lots of databases and I don't even pretend that I like to do
that search on my own because it's literally like hundreds of databases
that would take me days if not months so I have like an AI program that does it
why would a big company go into this late in the game you talked about an
extensive research Apple for example has a giant list of lawyers I'm sure of it
and now they decide to go after the fruit union in the Swiss to fight for
the Apple is that in that's their aisle they just jump is there a bullet okay
that's what Apple does that's just yes Apple is very very protective of their
IPs Apple is one of the most protective companies they will patent everything
trademark everything secure everything they go after any trademark that has an
eye in it an Apple in it no matter for what industry they just want to make
sure that because what happens is when you have a big name like Apple they can
technically have their hand in everything right so like when you have a
trademark you only technically own that trademark in connection with how you're
using it right so like if you had a trademark for your podcast name that
doesn't necessarily mean that somebody who's making I don't know handbags can't
go and have the same exact name for a handbag brand right because you're using
they're using it for handbags you're using it for podcasts that's not related
but when you have a giant brand like Apple who can technically have their
hands in everything they're sort of awarded a much more broader spectrum of
protection and so because they are so vigilant enforcing those rights like
they don't care they want to be able to have you know access to anything they
want to do in the future and so at least at the USPTO they're very vigilant so I
was not so when I said I mean is it stupid is it a little like out I think
they're just testing the waters to see just how far they can get and you notice
that that wasn't in the United States I cannot speak to Swiss trademark law I'm
not licensed there but I'm guessing they're there they're testing the
waters just to see how far they can take this interesting I caught the article on
Wired magazine mid-june but I know you picked it up as well I also caught in
that Swiss Railway back in 2012 set a precedent where they had a settlement
showing that Apple copied the design of the clock for Swiss Railway I don't know
I love gossip so I'm thinking is this retaliation is this a thing that Apple
is doing and I wonder if you got all the time where people are just going tit-for-tat
no no they're not this is a very expensive game to play again not well
versed in Swiss trademark or patents or whatever how that works but I think with
this Apple really is just trying to see how far they can take it and how much
they can get is there is there precedent set on setting an example or do they
just go throw balls or spaghetti at the wall if you will and just with something
like this yeah I mean again in the United States very very vigilant no
matter like you know if a trademark is trying to get registered and it has an
Apple in it they've gone after pears too like they don't care they want all they
want a monopoly on all the fruit yeah they're there Apple has an entire
department of IP lawyers that do nothing but sit around and just monitor for
infringement all day and they're very good at it they find they find
everything like I've had in the past a client who had a mark that had the word
Apple in it and it was completely unrelated to anything that Apple does
like I can't say exactly but just trust me when I say is a completely
completely completely unrelated thing that Apple will never get into and they
opposed it and that's what they do because they know that these smaller
brands they don't have the money to fight them so so they kind of just like
whenever I tell people I'm like listen I anything Apple anything don't do it it's
not worth it doesn't matter related not related it's not worth it I have an a in
there hopefully I'm okay but we'll see yeah I think I mean you should be okay
the States that's more of your expertise and maybe stick there but if I have I
don't know Vicky podcast is is there some worry for me like if I don't listen
to the decent assist and deceased letter then obviously that could mean that I
could be in a whole lot of trouble yeah yeah I mean if you get a cease and
desist and depending on how it's worded and it really depends on you know a lot
of lawyers will throw out cease and desist depend again depends on who it
came from but a lot of companies will just throw out cease and desist if it's
like from Apple I would just drop everything because you're not gonna
fight them or any of the other big brands but just from a smaller brand it
really depends a lot of people try to enforce rights that they don't really
have that's a big thing and then you know a lot of these brands they don't
really want to spend the money on an attorney they'll either try to fight it
themselves and then end up winding it up in court in another state where they're
nowhere close to where they are and or they'll just end up getting sued or or
you know they'll lose their own rights so cease and desists are our tricky
little a tricky little topic but it really depends it's highly case
specific for sure every unique situation depending on the experts and how
dedicated they are that makes sense yeah but for jingles for example you mentioned
those you touched on them if I go out to the the internet find a free royalty
free jingle background music of some sort and I get the rights to use that
but in if I'm following the specifications of the copyright rules
and I still make something into my own depending on the copyright rules am I
able to claim that as my own intellectual property or is that kind of
money there so first of all you have to make sure that you are you have the
specific license that's required in order to make commercial use of that
jingle right so if you have that and for example let's say you included it in a
podcast episode and the podcast episode was very popular and you wanted to go
and you wanted to copyright that that podcast episode to make sure that you
know nobody's gonna be stepping on your toes and you have the exclusive right to
do whatever you want with that podcast episode then when you are registering
that podcast episode as a copyright you would just exclude the portion of from
your application that includes the jingle because there's a way for you to
say like they ask you like do you own the entire copyright like do you own the
music and the this and the that and that and you could say no I am and I'm you
know disclaiming this piece of it so but so you would not own the copyright in
that jingle but you would own the copyright in whatever it is that you created
so it's very compartmentalized it can get very correct
yes this is why you lock their note on this stuff it's like a giant puzzle that
you may not really is it really is and it's again like I said it's like super
duper case specific right so like when people are like well can you tell me in
general and I'm like no I really I can't it's because there is no general when it
comes to this every single case is different so is it like right in the
history books every single case you go in front of a jury or a judge well no we
don't have judges and juries really in I mean we do but not not in this sense in
this sense it's really just all strategic right it really is what do you
want to do like what's the goal right so when at least when I think about it
right I don't like to do things piecemeal which a lot of people do they'll
be like all right well I'm just gonna go register a trademark or I'm just gonna
go and I'm gonna copyright this because this was a popular episode and I'm like
no you're just throwing money out the window like what are you trying to do
here let's talk about what you're trying to do what you're doing now what you
plan on doing in the future and then then I could draw you a picture and you
could see sort of what the best option for you is otherwise you're just
throwing money at it and that's not always necessarily the best case right
like everyone's like I need the trademark and I'm like do you need the
trademark I mean all right if you got a spare I don't know three thousand
dollars laying around sure let's go do it but like you might not need it so
it's a great question to bring up a light bulb went on how far along in the
podcast segment do I need to start thinking about this is it from the get-go
I want to be professional or do you just throw throw everything down kind of
wing it and then kind of grow and say okay now I'm getting serious I should
check so funny it's a question I get all the time about trademarks and every
vertical never a specific answer but it always starts with strategy right like I
couldn't tell you that without knowing a what you're doing and B what you plan on
doing for some people it makes sense to write up before you even start anything
like you can preemptively go and you can secure that name with the USP to in the
United States that's really the only way to like call dibs on a trademark
because in the United States and I do believe in Canada as well you have to
actually start using the trademark in like a very specific way in order for
the rights to attach and you will still have rights once you start using it in
that way without registering them and they're gonna be very very limited
especially in like how you can enforce them so it's honestly just it's not it's
a non-starter for me when somebody says like oh well I mean I have the
trademark rights like yeah you have them but you can't really enforce them and
they're not that great so like if you really want them go register them but
like it's it's really just again so case specific so like for some people it
makes sense to do it right off the bat for other people it makes sense to start
and then like see how it goes and then register it like is it always a good
idea to check and make sure you're not stepping on anybody else's toes before
you do it yes it is you can do you know like a very simple Google search you can
go even into the trademark database and look it up and see if you see anything
similar in there there are ways to do it I show people how to do it all the time
like LinkedIn I have content on Instagram I have content about that it's
not it's difficult but it's not that difficult you could do like a like a
very you know basic search at least that right at least that to make sure that
you are not getting yourself into any trouble before making sure that like no
one is stepping on your toes put a little effort in maybe just just yeah
and if you pick yourself she's not gonna laugh at you for not putting in the
effort maybe um no I don't laugh at anybody because I don't I honestly like
all of this is just very unfortunate because people don't know right people
don't know people and even people that know I guess I guess if you know and you
ignore it then you had it coming and I'm not gonna feel bad for you but a lot of
people don't know they don't think about it that way they're just like I'm
starting a podcast like who cares like I got a cool name I'm just gonna go and do
it right and they don't think about anything right like for example like I
always tell people okay like do you have like a podcast guest form that you give
to people and they're like well I'm like yeah all right well um do you own the
rights to what people are like I'm on your podcast right now like do you own
do you have the my permission to put this on display do you have my permission
to use my voice do you have my permission to use my sound clips and the
things that I'm saying if that's not in writing today I say yes tomorrow I say
no and you have no podcast yeah so so lots of little things because this is
my IP this is my intellectual property my is my speaking what I'm saying right
so I have to be able to you have to have that permission to to use that for me
because tomorrow I can change my mind and then it's on you or tomorrow you
decide to go and you decide to you know rearrange my voice in a certain way or
or you know arrange these clips in a certain way and I'm like oh no I didn't
say that I don't like that I'm gonna go sue you now people don't think about
that they're like I'm just gonna do a podcast and I'm like all right cool well you have fun with that
I'm that that happens in your experience with clients that people say well I said
yes and now I change my mind I just want to make their day miserable yeah it's
not because they want to miserably change your mind yeah you know they
didn't like the way that you you made them look they didn't like the way that
you made them sound or you know maybe sometimes someone can take something
totally out of context and and you know yeah in newspapers people will kind of
reporters perhaps will take the the words and kind of jig them just a little
bit to get the the clickbait right and that's when it gets a little muddy yeah
generally you would hope that people don't change your mind but we're all
human beings right exactly exactly and so like important to protect yourself in
that way and to get those those rights from third parties that are that are on
your on your show ahead of time make sure that everybody knows whose IP is is
whose IP right like this one's mine this one's yours this is what I'm allowed to
do with it this is what you're giving me permission to do with it you know if you
change your mind you got to let me know but you got to let me know in advance
or you know I mean whatever those these you know these guests podcast guest
forms they're all over the internet and normally I do not condone downloading
forms off of the internet but there are some decent ones for anybody that
doesn't want to download off the internet and wants a customized one
that's what I do also but generally you can't find them online and you can you
can if you know at least a tiny bit about it which if you listen to this and
you should now know you'll be able to sort of tweak it to your for yourself
I guess it's better than nothing if you at least have some yes form or it can
get worse if you have something without your expert I mean it could if you
really don't know what you're doing don't do it let's put it that way but if
you kind of understand it then it's okay gotcha safe rule thank you yeah is there
anything that you get into very specific can we look at trademarking words
specifically like if I try to use a word in my description for the podcast would
that be out of context or is there a something I should think about can you
be a little bit more specific because so the trade you're talking about
trademarking say a phrase or graphic or email address something that's maybe a
trade secret is there specific words in the English language that we can shy
that we have to shy away from because there's a potential property around
that particular word or is that just free reign because it's in the
dictionary no so you know there are certain rules right that we have to
follow like for example if you had you know the Elijah podcast podcast
describes the services that you're trying to register and so that's
considered descriptive and so the USPTO would not give you the exclusive rights
to use the word podcast so you would only have the exclusive rights to use
Elijah even though it's you know it's Elijah podcast so you have things like
that there are certain limitations on for example last names last names are
very difficult to register because we have this balance where we want to
balance free speech and we want to balance the rights of trademark owners
to protect their trademarks and so you know arguably a last name is somebody's
name you don't want to prohibit them from using it so last names there was
there did used to be a prohibition on improper words and curse words that has
been lifted because that was also found to be a violation of First Amendment so
I mean there's there's there's certain things there's certain words that I know
just by virtue of being a trademark attorney because I have experience with
them there are certain brands that like I said are very very vigilant about
enforcing their rights so like Apple being one of them Monster the energy
company they are insane trademark bullies anything that has an M or the
word monster or like claw marks or like whatever doesn't matter what it is they
will come after people for using that so there's a couple of companies like that
that just like don't care like if there's nothing to do with them they're
just gonna you know enforce it anyway just because they have they have money
and they have a team of lawyers and they don't care right or they're very
protective yes yes I mean they don't have they shouldn't be that protective
because it really like some of these things that they're going after have
absolutely like nothing to do with them but they do it anyway so I don't want to
risk putting you out of the job Vicki but could we just go back to a place in
time where people are just kumbaya and cool about the stuff or no no because
it's business right I can think about it right how much time how much energy how
much resources do we put into building our brands and that's what I tell people
right like some people are like well I don't care well like you should care you
should care think about it right think about it if you had to put a dollar
amount on it it's a lot of money so like you should think about protecting that
right because you don't want anyone to just come in and just like decide one
day oh I like what he's doing I'm gonna do that too and then your customers
right all this like goodwill that you have invested so much money and like
you know like everybody loves you everybody knows who you are all of a
sudden they're like wait a minute who's that what are they doing is that are you
the same like is that you again right because I've had that all the time I get
that all the time with my with my clients right why do they come to me when
it's too late and the dumpster is on fire and they're like shit well like I
meant to take care of that but I didn't and now like look I got this copycat and
I'm like well guess what now my hands are tied so I don't know what's gonna
happen so really important to just you know I get it's an uncomfortable thing
for people to think about right it's uncomfortable because it's not imminent
it could happen it could not happen but like if you're serious about it right
like if you're starting a podcast and your intention is like you know what I'm
gonna sell this thing to Spotify or I'm gonna you know grow a hundred thousand
listeners you got to think about these things yeah it's it's not that easy just
to let it go because this is how you make your money this year like it's your
life exactly exactly so don't make money in the world world revolves around that
that's it that's a tough one swallow yeah it is so you know I mean we could be
kumbaya but not really I think then you're not making money and that's not
gonna happen now especially in business people are serious yeah definitely so
you mentioned it costs a few bucks to get started you have an entry-level course
still going I saw that on the Instagram is that something that you have out
still to help people if anybody wants to try to do it themselves then yeah they
can I did not hold back with that one it's really just all my secrets all my
tips and tricks I wasn't like trying to you know gatekeep it's I'm not gonna lie
it's an insanely difficult process but if your brain works that way that there's
no reason why you couldn't do it yourself just even thinking of getting
down the basics and understand what the heck's going on with that would that
help yeah absolutely I mean it shows you like I said that the trade that the
trademark process itself is done in two steps first where you do the the search
and make sure that you actually have the right to use that that name or that logo
or that tagline and then once you've sort of done that analysis and you see
that that is available then you can go and you can you can register it
otherwise registration is just gonna be like a total waste of your time and and
yeah I show people how to do everything where do you live on the internet to
Vicki that would help somebody get started if they wanted to show up and
say hey I need some help where do they go I'm on LinkedIn I am most active on
on on LinkedIn now and it's a good one I guess it's slash Vicki B I CKY Smoliar
SM OLY AR I'm sure you could you could put that no put in the show notes no
sweat yeah you could put that in the show notes that's really where I am most
active these days I'm also on Instagram and that's at trademark attorney Vicki
but I haven't really been too great on there if you like the Instagram archives
from a year ago still yeah well they're not from a year ago they're about from a
couple months ago but yes they they go way back so they go way back yeah mostly
it's on it's on unlinked in these days beautiful the last words of wisdom from
the the coolest IP lawyer on the planet I'm telling you I'm gonna use that like
I'm gonna quote you on that if we can use each other's IP freely is that a
good Tracy's or should we write that down no I think I'm good you won't hear
you won't be hearing from me but just for future you know people do change
their minds so so you know words of wisdom take this stuff seriously take
this stuff seriously I know it's it's very difficult and dense topic to wrap
your brains around if you go and you follow me on LinkedIn I really do try
my best to break it down and make it simple that's really my one goal and in
what I do that's that's why I call myself you know not your grandpa's lawyer
because I understand how difficult and overwhelming it is but it really doesn't
have to be but take it seriously because you know everybody thinks that it's not
gonna happen to them until it happens to them and once that dumpster is on fire
I'm telling you there's not much that can be done and I like to joke that I
have a dumpster fire surcharge it's and you don't want to get there you do some
search the basics and then if you're lost and stuck it's it's wise to take it
seriously hit up Vicki see what's up and then I take it from there but yeah yeah
make sure it's important because it could be the difference of life or
sitting in the dumpster and we don't want yeah yeah 100% it's been great chat
thank you so much for joining Vicki and we'll see you soon whether it's you
change your mind or if it's my quotes all I ask is pay it forward give somebody
outside awesome I will do that let's start a podcast