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Law Have Mercy!
Law Have Mercy! isn’t just about the law anymore—it’s about life, business, health, and everything that sparks curiosity. Join Personal Injury Attorney Chaz Roberts as he dives into candid conversations that mix legal insights with lifestyle tips, entrepreneurial wisdom, and personal growth. From breaking down complex legal issues in simple terms to exploring the challenges and triumphs of health, business, and beyond, Chaz brings his unique perspective and passion to every episode.
Whether you're here to learn, laugh, or find inspiration, Law Have Mercy! has something for everyone. Just remember: the opinions of our guests are their own, and nothing on this podcast is legal advice or creates an attorney-client relationship—it’s all about entertainment, exploration, and empowerment. Let’s make it fun!
Law Have Mercy!
Trademark Wars & Counterfeit Scares: Inside the High-Stakes World of IP Law with Sarah DuPont
Ever wondered how major companies like Disney keep a tight grip on their trademarks, even in the smallest of towns? Join us for a must-hear conversation with seasoned IP lawyer Sarah DuPont, who sheds light on the aggressive tactics these giants use to protect their brand. You'll learn about the fine line between legal and illegal uses of brand elements and uncover some fascinating anecdotes about policing unauthorized uses. Plus, we explore the peculiar world of advertisements that use generic versions of team uniforms to skirt infringement issues—raising some thought-provoking questions about authenticity and appearance.
Next, we uncover the high-stakes world of brand partnerships and licensing in the apparel industry. From a local t-shirt shop seeking LSU approval to the headline-grabbing split between Kanye West's Yeezy brand and Adidas, Sarah helps us navigate the intricate legalities and significant impacts of these deals. We'll also discuss the broader implications for major brands like Adidas and Nike, emphasizing how slogans and trademarks are crucial for maintaining brand identity and market value. This segment is an eye-opener for anyone curious about the power of branding on consumer behavior and the legal challenges that come with it.
Finally, brace yourself for a deep dive into the alarming prevalence of counterfeit products, especially on e-commerce platforms like Amazon. Sarah shares a personal story about purchasing counterfeit Golden Goose shoes, highlighting the importance of authenticity verification. We'll discuss the broader consequences of lax IP enforcement and the risks to consumer safety, particularly concerning counterfeit goods in skincare and vitamins. With real-life examples and practical advice, this episode offers a compelling look at the complexities of trademarks, licensing, and intellectual property, leaving you equipped with the knowledge to navigate these challenges in your own life.
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This show is co-produced by Carter Simoneaux of AcadianaCasts Network, Chaz H. Roberts of Chaz Roberts Law and Kayli Guidry Bonin of Beau The Agency, and Laith Alferahin.
The counterfeit market has just kind of exploded, so I'm about to admit to a crime here. So I don't know if I want to tell you this, sorry.
Speaker 2:You can't plead to the fifth on the Law have Mercy podcast. I'm sorry, hey, it's Chaz. Back again with another episode of Law have Mercy. I'm bringing a returning guest very special. Mrs Sarah DuPont, Welcome back.
Speaker 1:Thanks for having me.
Speaker 2:She's our favorite IP, which is intellectual property lawyer, and she was actually the first guest to go viral with our Disney clip.
Speaker 1:Yeah, that was fun.
Speaker 2:Yeah, it hit and then it just went insane and every time I would open my phone there'd be another 25,000 views and comments and everything else. Carter, you have that clip as always told you cannot find a bakery that will make a Disney cake.
Speaker 1:A lot of these big companies. They literally have people that are hired just to police their marks. One of the big ones and main ones is Disney. I mean, oh my gosh People love Disney.
Speaker 2:They are very aggressive in protecting their marks.
Speaker 1:We had a client and they had. They were doing fun jumps with Disney characters and they got a letter. So they'll find you, disney will.
Speaker 2:And what's interesting is like that was a small town spot right.
Speaker 1:Yeah, like it wasn't even. You know where we live, so much smaller town, I honestly don't know how they found them. But I mean, again, Disney hires people that are just set to do that and to look and police their mark, which I mean they should. It's their brand, you know. That's what they want to do.
Speaker 2:Yeah, but to have the resources to like, find someone in Crowley, louisiana, right, right, yeah. And what was interesting is a lot of the comments were well, you got to find the Mexican bakery, right. And then we're talking to Kevin downstairs, who's Hispanic, and he's like oh yeah, do you go to Mexico to make you any Disney princess on a cake tomorrow? I was like no, I think they meant like there's a Mexican bakery in every town or there's some bakery who is willing to do it?
Speaker 1:And they don't care. You know it's interesting though, and people made comments about that clip, and there are instances I mean everyone, you know, I guess, from what I said they take away oh, you can't have anything with disney. Well, that's not true. There are instances where you can actually buy a product and you see it. I mean you go to walmart, you go to target, there's products that have disney characters on it, in the toy section or whatever it is. You're able to do that because whoever made those toys or those products has the proper licensing in place to be able to do that. So there's exceptions to, you know, disney coming after you, and it's when they have allowed these companies to make their product to using their brand, using their name. I mean, all companies have that.
Speaker 2:So but Disney was their cut.
Speaker 1:Oh, of course. I mean, there's a there's a price.
Speaker 2:You pay for that, right. So, yeah, they're not just giving you that for free, you've got to pay something. And I see like and Carter's dealing he has a podcast with the NIL, with UL, and I see a lot of like purple and gold right. And so if you are the LSU like, you want to appeal to the Baton Rouge market or Louisiana market and you want to appear to be an LSU fan, there's two ways to do it. You could go through the licensing to actually wear the LSU jersey, the LSU logo and stuff, or you could just wear purple and gold Right, and I guess there there's a hole there where you can look like you're wearing LSU.
Speaker 1:Go to a game you can wear a purple shirt. That's not necessarily LSU, I mean, they can't come after you for just a plain purple shirt. But if you're, you know, manufacturing some some t-shirt or something on your own without that licensing, technically they have the right to to make you stop doing that. Um same thing you know with NFL, you know fanatics is that big company that has the licensing rights to be able to sell all of those jerseys. So only certain companies have that.
Speaker 2:Yeah, but if you do it on your own, you're. It's a risk. I'm always. What's funny, though? This is great when I watch, like, let's say, when Johnny Manziel was doing an ad or Odell Beckham or something, and they were doing it and they wanted to appear to be in their team's uniforms and it might be a commercial for Gillette or Subway or something like that. Why do they have to make the jerseys so damn cheap looking and ugly Like? You could still make nice jerseys. It doesn't have to be a solid blue with just white numbers with big holes like that are an inch thick, like make it look like a game jersey, just don't put the logo.
Speaker 1:Maybe they just don't even want to touch it, I don't, who knows.
Speaker 2:But yeah, I've always, it's always bothered me when they try to like, replicate game stuff and it doesn't look anything like the real one, you know. Yeah, so we, uh, we talked about does that fall under trademark?
Speaker 1:yeah, it does. So, um, I mean disney, when we're talking about their branding, their logos, that's a trademark. Um, the licensing part, I mean you can get the rights to use that trademark. You can get licensing for any kind of intellectual property. So, whether it's a copyright or a patent, any of those allow for licensing abilities. They won't give them to anybody. You don't want to give it to everybody, but there are certain companies that you know can benefit you as an intellectual property owner and holder, that can help you expand your brand, expand your product, and so you know like, okay, I want to be able to give the rights to somebody that can really get it out there and make it and sell it for me, and I'm going to get some money back on the backend. You know, whatever it is you agree to, so that's how that works.
Speaker 2:I know someone who has a t-shirt shop in town and it's a printing shop and she was going through the licensing process to get approval by LSU.
Speaker 1:Yeah.
Speaker 2:And I think that was a big deal. I think there was a lot of paperwork and she had to wait a period of time, but to be able to print LSU gear is a big deal, you know, and it allows her to expand her reach instead of just putting the generic purple and gold stuff. So, you know, and it allows her to expand her reach instead of just putting the generic purple and gold stuff.
Speaker 2:So you know, it looks like the middle of the mall. You don't actually have the LSU stuff on it Right, and people are creative like how they try to get around it.
Speaker 1:I don't know, did you want? There was a 30 on 30 this past weekend. I don't know if you saw it with Notre Dame and talking about those t-shirts that they made back. Was it the 80s, I don't, but it was really fascinating to hear all about that too, and they had to deal with the same kind of things because they didn't have the proper licensing to use Notre Dame or it was just students that were making shirts, it was students that were making all these shirts. Did you see that?
Speaker 2:Yeah, it was. It was they were making shirts, and then somebody can walk up and tap you on the shoulder and say let me see your, your registration or whatever you're licensing and they can seize all your property. And I don't know about you, but when I was in college I didn't have the money.
Speaker 1:Well, that's what I did it, cause they were trying to make some money, and then it got pulled.
Speaker 2:Um. One. Another one that I kind of came across when I was looking up recent trademarks was Yeezy Right and so Yeezy left Adidas he had a collaboration with.
Speaker 1:I don't know if he left Adidas or required to stop.
Speaker 2:And Adidas' stock plunged right after he left right.
Speaker 1:Right.
Speaker 2:And so he had a collaboration with Adidas to make his Yeezy sneakers.
Speaker 1:Yeah, he was go ahead. Yeah, he, kanye or his company, owns the trademark for the brand Yeezy. They did a collaboration with Adidas, who is, you know, a shoe manufacturer and you know other apparel and stuff too. I think they only did shoes, but so they did a partnership where Adidas provided basically the designs for the footwear. They use the Yeezy trademark, as you know, as part of that. So they went in together, collaborated I'm sure they had multiple contracts in place stating you know what all the parameters were and sold this product.
Speaker 1:Well, you know, kanye is Kanye and things happen. And so their partnership fell apart. And so now the question is well, their partnership fell apart, and so now the question is well, who owns what? You know again, adidas owns these design patents for these shoes and Kanye does not. So he's got the brand, but now he can't sell the shoes because he doesn't own the designs. And so same thing with Adidas. They have the designs on these shoes, but they don't own the Yeezy trademark and the brand. So how do they move forward with this? Um, you know well, kanye have to come up with his own designs, you know, moving forward if he wants to sell and continue the Yeezy brands. Probably so. Um and same thing with Adidas. I guess they could still follow, fall under the Adidas brand. Um, and not use that Yeezy.
Speaker 2:So one plus one equals billions Billions minus one equals zero. Because Adidas? I don't know, I haven't searched their site, but they could technically create the same type shoe, just without the name.
Speaker 1:Yeah, I mean they own the design patent on these shoes. So they have the rights to that design and that particular um you know look of shoe. So they could just rebrand it in a different name or just sell it under Adidas, but they, they own that. So Kanye cannot try and come and sell that design of shoe himself or he'd be infringing on their design patent essentially, unless he changes it up.
Speaker 2:It seems like Kanye got the better end of the deal because he has the name that people know right.
Speaker 1:Arguably, but I mean, people know Adidas too, that's true.
Speaker 2:When I went to Germany for the Berlin Marathon, adidas was the main sponsor. It's a German company, I believe, and everyone wears Adidas, like everybody wears Adidas.
Speaker 1:So I mean, you look at these big brands, you know it's Nike and it's Adidas. Everybody knows them. So you know, is Adidas really? Are they worse off by not having Yeezy associated with it? Maybe, maybe not, I don't know.
Speaker 2:I think it was a beneficial relationship for both of them.
Speaker 1:I think it was Volatile.
Speaker 2:Yeah.
Speaker 1:You know, Kanye is again Kanye, so it's a risk, I guess, when you have somebody like that who can say or do anything at any time, and does Adidas want to be associated with that?
Speaker 2:I don't think so, which is why they pulled the branding. You know Well. That just goes to speak to like how important branding is and trademarking and how important the work that you do, because that same slide that sells for $125, $200 could be replicated and made for $3. Penny's own dollar, but you put a name brand on it and it's worth. People go crazy, people go crazy.
Speaker 1:And I don't know the psychology behind that, but people and consumers love a brand. I guess we're bombarded with it every day. We see branding on everything we do, whether it's food, whether it's what we watch, just driving in the car. You see it everywhere. So people love a brand. And there's recognition. I mean, it's all of that.
Speaker 2:Speaking of Nike, the term, the term like just do it Is that something that you trademark as well?
Speaker 1:Yeah, yeah, a slogan. You know you can trademark slogans, so trademark you can do. You think of logos, you think of the name Nike itself. You know the brand name, Slogans, all of that Also. We didn't touch on this last time, but there's also a subsect of trademarks called trade dress and it's kind of it's, it's another association with a brand that you think of, but it may not be the logo or the name itself, but it's an appearance of something. So, for example, the Coca-Cola bottle or the Heinz ketchup bottle and the appearance of it, that is trade dress. Or another again subject of a trademark, also colors. So Tiffany blue, that's a trade dress.
Speaker 2:Wow. So the McDonald's arches, that golden, the golden arches trade dress, so those are all parts of somebody's brand that give that recognition that consumers associate with it of somebody's brand that give that recognition that consumers associate with it, and how hard is it to get one of those trademarks Because you're taking things out of commerce essentially right.
Speaker 1:It can be difficult. I mean you can also get it for smells, like some perfumes, and the smell and a scent can be a trade dress. So that's a little difficult to get. But you know again, when you get it it's good. But you also have to enforce that too, and so you're also it's one extra step You're trying to make sure nobody uses Tiffany blue if you're selling jewelry. Or you know the Louboutin red soles on the shoes. You know, I see, you see those.
Speaker 2:So when you, when you say, um, they have to enforce it, who has to enforce it?
Speaker 1:The owner of the whatever intellectual property you're talking about. So whether it's a trademark or a copyright or a patent, the owner of that intellectual property is the one that has to enforce it. So you and I as consumers, you know we purchase something let's say and then I know we're planning to talk about this a little bit later let's say it's a counterfeit product. You and I have no really recourse to enforce that against. You know, whoever sold us this counterfeit product? The only person that can enforce that is the owner. So it's on them to do their due diligence and do their research and look and find out who is infringing on their intellectual property.
Speaker 2:So the owner of Louis Vuitton enforces their own trademark and goes against the seller. Now is that a civil thing or a criminal?
Speaker 1:thing. It's both, I think, for counterfeit products, so it's a civil thing. When you're just talking about straight infringement, which infringement is? Somebody has some unauthorized use of your intellectual property. When you're talking about a counterfeit product, though, I think because there's so many laws in place now and it's essentially some kind of theft I think there's also criminal liability. I'm not going to swear to that because I don't deal with that, but mainly it's civil, with just general run of the mill infringement. So we're talking about what we talked about last time. Oh, taco Bell and Taco John's. That's a civil lawsuit. So you just sue somebody for trademark infringement and you're hoping you can get some sort of damages from them in return, and then the injunction part, which is also for them to quit using your mark or your brand or whatever intellectual property it is at issue.
Speaker 2:And when you were talking about enforcing it like that's almost like an air quotes, because as a, as a, an owner of intellectual property. You have a duty to enforce. And so, even though nothing's going to come up of it potentially, you still want to report it to the authorities. You still want to maybe send the cease and desist letter, because if you don't use it, you lose it. Correct, if you don't, I'm not going to use it.
Speaker 1:If you don't use it, you lose it, correct? If you don't, I'm not going to use it If you don't enforce it, you could lose those rights. So that's true. So I mean, if you don't use it, you also lose it. But yes, if you don't enforce it, you run the risk of diluting your brand. Um, you know you losing your reputation. You know cause again, you're allowing people to sell something that is similar to yours and that affects you and your reputation. What cause? It could be a bad product. It could. Um, you know, it could be cheap, it could be bad quality and people associate it with you. Well, that all goes to diluting your brand. So I mean it's, it's a requirement to enforce it, but I mean it's also. You know something you want to do as a, as a brand holder. Yeah, just prudent business.
Speaker 2:Another thing that was that I've seen recently about trademarks was Elon Musk with the whole ex-Twitter thing.
Speaker 1:Yeah, so I was looking into it. So apparently, elon Musk has been sued for trademark infringement from a company out of Florida that allegedly owns a mark ex-social media that owned or allegedly owns a mark X social media. And so since Twitter well, x, formerly known as Twitter is a social media site, they sued him for trademark infringement, basically stating that they owned it first. He doesn't have the authorized use of this mark. He can't use it Moving forward in the social media setting. I don't think that there's been any outcome on it yet, but and he's still using it.
Speaker 1:He's still using it. So in the meantime I mean if you don't get an injunction to make them quit using it, while you know you filed the lawsuit still using it.
Speaker 2:I would imagine they filed for an injunction and probably lost that right.
Speaker 1:Either they lost it or maybe it just hasn't come to hearing yet, you know, hasn't come to hearing yet, unless you get a temporary restraining order, which can happen pretty quickly. Some of the injunctions take a lot of time.
Speaker 1:How do you trademark a letter of the alphabet? It depends on how you're using it. So we talked about this last time too. I think I gave the example of a bicycle. You can't trademark the word bicycle when you're talking about oh, I'm just using a bicycle, but so I mean it's because it's going to like your. That's the name of your site, of your social media company, so it's not like I'm just using the letter. I'm not just using the letter X and saying nobody can use the letter X in the alphabet at all.
Speaker 2:ever Nobody can use the, the word the letter x for this purpose, for this type of service, this type of good right.
Speaker 1:Like law, have mercy doesn't mean that you can't say it or you can't use it in something else and a lot of times, when you're filing um a trademark application, um they'll come back and, like the patent office or the trademark office will come back and say, oh, we have to disclaim the use of these, of this phrase to get so, like you, assuming we get a trademark on law of mercy.
Speaker 2:We better.
Speaker 1:We better. That's the goal, right. You're not going to be able to prevent somebody from using the word law by itself. Right so it's going to be in conjunction with the whole thing. So law have mercy together, because alone you can't prevent somebody from using the word mercy, but it's as a whole, together and again in this channel of trade, in this avenue you could start a law of mercy bar in New York.
Speaker 2:probably, right, yeah, maybe that's, maybe that's 2.0, 3.0. Manhattan. Look up some real estate there. You got to sell a lot of beer to pay for that real estate.
Speaker 1:Well, I get a cut of that.
Speaker 2:Yeah, exactly, Um, we were gonna. We want to talk about you wearing these nice golden goose shoes. Huh. Well um you ever had any incidents where you bought some golden goose shoes that were not golden goose shoes?
Speaker 1:Yeah, um, you've had any incidents of purchasing a counterfeit that you didn't realize was counterfeit at the time?
Speaker 2:Husbands be very mindful of this podcast, because your wife may ask for some golden goose shoes and you don't want to look at the price tag.
Speaker 1:So we were talking about this briefly.
Speaker 2:They're good quality though.
Speaker 1:So you know, as a consumer I mean, you're bombarded with, you know stuff every day and you're hoping that what you're buying is authentic and legitimate. Sometimes it's not and it's not intentional. You're not buying, you're not doing that on purpose, you're. You assume you're getting what you think you're getting or what you intend to be buying. Um, but you know, again, the counterfeit market has just kind of exploded. So, um, I'm about to admit to a crime here. So I don't know if I want to tell you this story.
Speaker 2:You can't plead to the fifth on the Law have Mercy podcast. I'm sorry.
Speaker 1:So I bought my first pair of what I thought were Golden Goose shoes. This was several years ago and at a consignment store.
Speaker 2:Hell of a deal.
Speaker 1:I know I was like, oh yes, half off, perfect consignment, I'll take them. So you know we're in the shoes having for a few years. In the meantime I buy some additional ones that I know are legitimate, um bottom from you know, the store or whatever it was these are thin.
Speaker 2:Well, it wasn't even that.
Speaker 1:I was kind of over on me and I'd had him for a while. I'm like I'm going to move on. So I go to sell them on eBay, and I don't know if you've sold anything on eBay lately or looked into it or or even bought anything. But now they have something, because I didn't use to do this, but now they have these authenticators and so if you're buying or selling something that is you know a name brand you're looking at Gucci, louis Vuitton, whatever it is they require the seller to send it to the authenticator first to confirm authenticity, before they then send it on to the buyer. So go on list these golden goose shoes or what I think are golden goose. Send them. Somebody buys them. Okay, great, send them to the authenticator.
Speaker 1:About a couple days later I get a, an email or a message. They're like oh, I'm sorry, we can't authenticate or confirm the authenticity of these. You know we're going to send it back. I'm like you've got to be kidding me. I was so mortified and so I messaged the buyer. I'm like I'm so sorry. I'm not trying to sell you something fake. I had no idea. I bought it from a consignment store, so I now have them back. So I guess I didn't technically commit a crime because I didn't actually sell them, but so because apparently you know, looking into this, knowingly purchasing a counterfeit product is a crime. Even if you unknowingly purchase a counterfeit product, it's still technically a crime. And then selling a counterfeit product, even if you don't know it's counterfeit, is a crime. So whether they can charge you a penalty, obviously seize the product, whatever that is.
Speaker 2:Well, thank God, ebay stopped you in your tracks, trying to commit all these crimes.
Speaker 1:Sell fake old, new shoes, so I will. Never again am I buying something from a consignment store. Your tracks trying to commit all these crimes, so I will. Never again am I buying something from a consignment store. But the consignment store technically committed a crime by selling you the golden shoes A hundred percent, or whoever sold it to them first or consigned it to them.
Speaker 2:So you think they knew?
Speaker 1:Uh, I don't, I don't think they knew, I think even with the big reds.
Speaker 2:50 off hell of a deal. Once in a lifetime deal.
Speaker 1:Sign that they had right over it I honestly think the consignment store was kind of indifferent and it didn't. Yeah, okay, yeah, they look sure, they look like golden goose. You know, it says a little label on it, whatever plausible deniability I just I don't think they double checked, they put their head in the sand and thought it was great. You know, they sell handbags and stuff too which I'm sure are probably fake. Then they just they don't look into it.
Speaker 2:Well, you know, who doesn't have their hand in the sand is eBay. Ebay, ebay's cracking down and we're charging that $25 authentication fee. Was it a fee?
Speaker 1:Did you have to pay anything? No, I think maybe just shipping Okay.
Speaker 2:Yeah, it wasn't. I didn't have. I didn't get charged anything extra. Now I didn't. Obviously I didn't get the money for the sale. You got to try again harder next time. Put leather soles in them next time.
Speaker 1:Yeah, Also, though, I bought something on Instagram a few years ago that now it wasn't like a name brand or something, but you know a few years ago that now it wasn't like a name brand or something but you know, you get these directed ads and I've never seen those, never, um, and it had an image of probably what's probably some influencer that I don't know, but wearing this really cute outfit and you know it had a link to it.
Speaker 1:I was like, oh, that's actually really cute, and so I went to go buy it, maybe $70. I'm like, okay, oh, that's cute. Yeah, I mean, what a good deal for this whole set.
Speaker 2:Another good deal.
Speaker 1:And I know I'm such a sucker and, um, nothing happened. So I'm like, oh shoot, I guess I was fake. And then, yeah, I think I go back on Instagram a few days later and see the same image with a different company you know, trying to sell that. I'm like, what is this? And I really I open it. I'm like, oh my god, it's what the set was supposed to be and it was the worst craftsmanship.
Speaker 2:You could just see through and hold it up somebody just like took scissors to a t-shirt.
Speaker 1:I'm like, oh god. I'm like, well, at least they sent me something. But it was I was. I was like, well, now I know, I've learned my lesson. So the moral of that story is to prevent counterfeits or purchasing of counterfeits that you don't aren't aware of. Go to the retailer directly. I mean, that's really the only way, unfortunately, I mean and it's everywhere.
Speaker 2:You can't do anything about it. So I'm looking at sites like Alibaba, timu, even Amazon, and it's the same clothing that you see in the boutiques and it's, I mean, you can get a box of stuff for $100.
Speaker 1:I've read something that said about either anywhere from 10% to 60%, which is a big range of products on Amazon, are counterfeit, and you know, I know I've heard of a lot of skincare products particularly like if you buy them on Amazon and you think it's you know this good brand or you know this medical grade skincare product, it's not. So I would put caution, you know, to anybody purchasing any skincare products particularly, or any kind of vitamin or something like that, from Amazon, because do we really know if it's the real thing and what it is actually in that product? A lot of this stuff, most of it, most of the 80% of counterfeit products come from China 80%. So do we really know what's what's in these things, what, what they're made out of?
Speaker 2:So if it's Amazon, which is an American company, it's 10 to 60% we have to assume that Alibaba, timu, that's a hundred I mean 80 to 90 to a hundred percent just counterfeit. And I think people go on that site and say like this, these prices are too good to be true, but it almost looks like it's pirated IP. I'm not even saying it's counterfeit because it's not a Louis Vuitton bag. That's that's they're posing as a Louis Vuitton bag. It's just, it's the same products that we use every day. It could be a phone charger, but it's. It's. The quality is just not the same, but it's. The quality is just not the same, but it's pennies on a dollar. It could be a batting net, it could be a machine, some type of machine, and it's just it's pennies on the dollar.
Speaker 2:Well they, they had to get that innovation how to construct that item from someone who spent a lot of money.
Speaker 1:Well, and it's not even necessarily that, because it's like you said, it's not quite the same product. So they have enough or they know enough, but they're taking shortcuts or using cheaper materials to create it.
Speaker 2:And then they have to spend the hundreds of thousands of dollars to design the product.
Speaker 1:Right. So you know it's not. Counterfeit products go beyond, just, you know, trademark infringement, all that kind of stuff. It's just, it's just bad for consumers all around. But behind you know there's and there's a whole other slew of issues with the creation of counterfeit products and you know child labor laws and all of that stuff too, which I'm not going to get into. But on the intellectual property side, I mean you're looking at anywhere from copyright infringement to trademark infringement, to potentially patent infringement, to if you own a product that is patented and somebody's knocking it off and selling it. You know, even if they're not trying to sell it under your name or your brand, I mean it's still that's harmful to your business and to your product.
Speaker 2:I? I handled a case one time it was a divorce case and the wife had this product and she was on Shark Tank.
Speaker 1:I knew Shark Tank was going to come out.
Speaker 2:Yeah, and the manufacturing facility was local and so she was paying American wages and all. And I think on Shark Tank they asked her why don't you outsource it to China? Or maybe she had outsourced a piece of it to China and they just took the design and made it pennies on the dollar. You get a short-term influx of capital because you're saving money on profitability, but then it's a commodity They'll just recreate it with a different brand and sell that Right and so I think that's another consideration people should have before they send their products to China to be manufactured.
Speaker 2:It's out of your hands, it's out of your hands. They'll just rip it off, especially something without a back to brand, without a real brand.
Speaker 1:Right, even even if you get end up getting a patent on something you know, let's say, let's say we do. Let's say you get a patent on something, you start selling it in the country and in the United States. You manufacture it here, even if it gets in China's hands over in China. There's not much you can do until they start selling it in the United States, cause that's where your rights are as a patent holder of a United States patent. Your rights are here in the United States to enforce, to enforce that patent.
Speaker 1:So prevent people from making, using or selling it in the United States. So if they make it in China, there's not much you can do. But once they start selling it over, here is when you can then have some sort of recourse against them.
Speaker 2:But the world is big, they can.
Speaker 1:they can sell it to every 7 billion other people, and but the world is big, it's big. They can sell it to every 7 billion other people.
Speaker 2:And it's, yeah, it's tough. That is nuts, since you admitted to almost committing a crime.
Speaker 1:Yeah, almost.
Speaker 2:Almost we went to New York and when we were downtown Square, not even in Chinatown downtown Square people are selling bags left and right they're lined up on tables.
Speaker 1:Yeah, and I'm not going to lie, lie, some of those bags look legit. Legit until you feel them once you feel them.
Speaker 2:You're like oh yeah, that's well. I thought I had a steal of a deal. I thought I had a steal of a deal and I paid probably 80 for a like a travel bag, like a like a lv travel bag. I think the second time I used it, the zipper just went to complete shit. It's like just blew up and now it's like in the trash can yeah, we were.
Speaker 1:I was in new york two years ago and my niece bought one of those bags on the street corner for like 50 and she was so excited. But I mean she's 16, so it's a little different.
Speaker 2:But yeah, I mean the quality is not good, it's not good well then we went to, uh, san francisco and beth was like, let's go check it out, let's go walk a little bit, and then so she was on a mission to find some new bags and homie, don't play that. They were not having that in san francisco and, uh, I thought it was the same as new york yeah, and it just wasn't.
Speaker 1:No, I didn't, I thought it was the same as New York, and it just wasn't. No, I didn't know that it was interesting. Yeah, that is interesting.
Speaker 2:And it feels like in New York, like you have to run away from these people.
Speaker 1:And then in San Francisco, you couldn't find one. I wonder, why that is.
Speaker 2:I have no idea. Pacific versus Atlantic, I don't know.
Speaker 1:Or maybe just different.
Speaker 2:Maybe California versus New York, maybe there's different I think I remember regulations too, or something I don't know I think I remember like a 60 minutes uh episode on that and I think they air it probably once a year where these government entities and I we were looking it up earlier, maybe secret service, fbi, customs and border control they go in and they crack down on it yeah. And they to protect the brands yeah.
Speaker 1:Well.
Speaker 2:And I think once that happens, people go to jail.
Speaker 1:They take it seriously.
Speaker 2:Stores get shut down, inventory gets removed and burned.
Speaker 1:And doing a little research on this. Counterfeiting and counterfeit products is the largest criminal enterprise worldwide. So I mean, when you think about it, I mean it's a big deal and it's a big problem. So you know, I guess, if they are cracking down and they take it so seriously, you know, it's. It's not worth it for some of those people to to continue doing it.
Speaker 2:What I was. I was thinking about this. I was like you know, like you're a woman and you have nice things, like you could probably tell me like purses. Are you paying for the quality or are you paying for the brand?
Speaker 1:I pay for both. I think and again it goes to the whole conversation of why do consumers like a brand and what is it about these name brands that you know draws people to wanting to have something with that on it. I don't know the answer to that but there is.
Speaker 2:There is better quality.
Speaker 1:Um, you know, you can tell. You know, if you're buying something on Amazon or you know any forever 21 or some of these cheaper clothing sources, fast fashion, you can tell the quality. I mean, it's so much different it's you want, especially as I get older. I mean I want stuff that I can continue to wear and continue to have for a day to, you know, for a long time, you know. So I'd rather spend money on something quality, um, you know, versus something that you're going to use it once and the zipper is going to fall off, right. So it's a waste of, you know, your $80 and you're going to spending that again to get something else. So right.
Speaker 2:I know the one thing that I would probably say it differs a little bit as like sunglasses, because I've also seen the 60 minutes where a Luxottica, where they make like basically every pair of sunglasses. It's literally the same factory that makes the $20 version or the $220 version, and the only difference is a brand.
Speaker 1:Yeah, I mean, and that's something you know, there's such, there's so small or something that people lose. You know, is it worth spending the money on an expensive pair of sunglasses versus a handbag that you're carrying every single day? You know, for years. You know that's everybody, everybody's own judgment and what they want to spend. But, um, yeah, you can definitely tell in some products that it may not be worth it versus other products. You know we were talking about it with watches. You know watches are a big counterfeit product right now. You know my mom, as you know, owns a jewelry store and she'll she has people come in to sell. You know they sell stuff over the counter and people come in to sell a Rolex and luckily she's got a watch guy on hand and they look at it and it's like I'm sorry, this is fake, and the person doesn't know, and so she's got to break the news to him that they've purchased a fake Rolex. They probably spent real price on it. Um, and she's not buying it from him, sorry.
Speaker 2:So does your mom ever try to figure out where they get these watches from?
Speaker 1:Is it it? It's probably not retail.
Speaker 2:It's not retail stores right, it's not retail stores.
Speaker 1:Uh yeah, I don't know who's making the fake rolexes they're really good, though. I mean they're yeah, they can, they can look really good is the weight.
Speaker 2:And then I think like there's probably a 10 point checklist, but I remember the movement that rolex has a certain smooth movement and the fakes don't do as good of a job with the movement. That's usually a giveaway.
Speaker 1:But, um, but yeah, I mean, just by looking at you know if you're looking at it on someone's arm, you know that's pretty good.
Speaker 2:Typical lawyers. We we give good advice. The advice is like do the hard thing, get it, pay full price get it from a real get it from a. Get it from a from a from a legit place.
Speaker 1:Pay full price, get the real thing, not the fake thing. Don't cut corners, because it's just going to cost you.
Speaker 2:Nobody wants to hear that advice.
Speaker 1:No, no that's about it. I mean, it is what it is.
Speaker 2:I want to talk about patents real quick. Who needs a patent?
Speaker 1:Well.
Speaker 2:Or what are patents for?
Speaker 1:So a patent can be to protect your invention, know your invention, whatever that may be. So there's really three types of patents. I only deal with two, so I'm not going to talk about one of them. When most people think of a patent and like, oh, I have a patent on something or that's patented, you're talking about a utility patent, which goes to something's functionality. So when you think of a product or a device, piece of technology, most of the time you're wanting to protect how it works. What are the component parts? You know all of that sort of thing.
Speaker 1:On the flip side, the other type of patent that I also deal with that we talked about briefly earlier, is a design patent, and we talked about that with Adidas. So that is strictly covering the ornamental features of something. So it's not, it doesn't matter how it works, cause you can't patent. You know a pair of shoes anymore, you know, and how they and how it functions, but you can patent the design of it. If you have a new design for a pair of shoes or a new design for a handbag or a new piece of jewelry or something like that, so that's all. It is basically just how it looks. So, but most people when they think of a patent, they're thinking of a utility patent, so they're more difficult to get. But um, but yeah, it covers the functionality of whatever that device is and that technology is, and when you're submitting the patent application, you have a blueprint, a prototype.
Speaker 2:What are you? What are you actually submitting?
Speaker 1:So, interestingly, you don't have to ever have a prototype of whatever your product is that you're trying to get a patent on. You just have to have, when you're submitting the application. It's basically a full like write-up, description, um, and then drawings. So basically you can say, oh, this is what I want it to look like, and this is what I think it's going to be. And you know, you have a patent draftsman, create the drawings and all this sort of thing, and then you submit that and that's it. You don't ever have to have a working prototype. And I'm about to blow your mind right now, because I know everybody talks about Shark Tank and, oh, is the product patented or is it patent pending? And they think that's, this is the greatest thing. Well, the second you file your application, you are automatically patent pending. So patent pending really means nothing besides the fact that I filed my application.
Speaker 1:So, people always think it's this great thing.
Speaker 2:I feel like I used to hear that on commercials patent, pending Patent pending oh, it's on those infomercials.
Speaker 1:Oh, patent pending oh, I have a patented product. Or even if it's a patented product, that's great, you got through the whole bureaucratic process with the patent trademark office. But doesn't mean the product actually works or it's actually good. They're not. The patent office is not looking at that. They're looking at if what you've submitted is unique, so novel. Is it new? Is it useful? And is it too obvious compared to what is currently out there? That's what they're looking at. They don't care. If it works, if it functions properly, it doesn't matter.
Speaker 1:So, people telling you oh, my product's patented, okay, cool, but it doesn't mean it works.
Speaker 2:So, mark Cuban and Mr Wonderful, if you're listening, if somebody says it's patent pending, that does not mean anything, because anyone could get something patent pending by simply filing an application. And even if they have a patent, that does not mean that it works.
Speaker 1:Doesn't mean it works. So I understand why the sharks on Shark Tank are asking that because they're looking at it from a business side.
Speaker 1:They're trying to invest money into these companies, into the intellectual property Correct, and so, hopefully, and what you're wanting is to obtain a patent on a product. And again, a patent on a product gives you the right to prevent others from making selling using whatever it is of your product. So, from a business standpoint, if you have something that basically cuts other people out of the market, well that's a good thing, whether it's the best product or not. I mean, if it prevents others from doing it, well that's a good. I mean that's good for business, so that's why they want it. But I mean, on the flip side, you're also hoping it's good. So again, patentability, marketability, success they're not related. People always think that too, like, you can have the best product on the planet and market it and it's great, and not get a patent on it. And vice versa, you can get a patent on something and it'd be a total flop.
Speaker 2:So do people ever come into your office and say, look, I need a patent on this. And you're looking at it and saying, oh, this is terrible.
Speaker 1:Well, I mean, I've thought that to myself. It's not for me to judge, you know, I don't know their market. Maybe, maybe it's great, maybe it's not. You know, I've thought that like, well, that's the craziest thing I've ever seen. But all right, we'll move forward.
Speaker 2:I mean, and so again depends on every client's different.
Speaker 1:What do you want to do? What are you looking to do? Can we get a patent on it? It's a mat with conclusions you jump to. Can we get a patent on it is ultimately what we're discussing, and we go over the whole discussion again Marketability, patentability, not the same. A patent's expensive. I mean it's going to cost you.
Speaker 2:How much? Well, all in, I mean it's hard to say Give me a range.
Speaker 1:Total at the end of the day from filing the application, going through the process, hopefully getting an issued patent, to then having to pay maintenance fees. Because once you get an issued patent you still have to pay the patent office every three and a half four years maintenance fees. So even after you're done you still got to pay to keep it, or else it abandons and it's gone. So all in $20,000, $25,000.
Speaker 2:Oof, you better have a really good idea For the end of the day you better have a really good idea.
Speaker 1:Yeah, and so I mean we talk about that. You know, is it especially for startup companies? You know, is it worth your focus on your funds right now? You know you've got to decide what is the best use of your money and where you want to spend it. Right now you may want to do this, I mean, depending on what your goals are. We may want to move forward with the patent process, but just know it's not cheap.
Speaker 2:This is probably not the best sales pitch for you, but I would think that a lot of people want to jump to the intellectual property before they have any proof that it will actually work.
Speaker 1:Yeah, and so that is true. And the reason being and when we talked about trademarks and your rights in a trademark come from your use of it, not from your registration Patent's different use of it, not from your registration Patent's different. So you have to actually file your application and hopefully get an issued patent to have any rights whatsoever. So you using it, it's nothing you know you're. Basically, if you use your patented tech or your, you know your technology and you don't move forward with trying to get a patent on it, you run the risk of people taking your ideas and there's nothing you can do about it Interesting, you can't enforce it. You can only enforce it if you have an issued patent.
Speaker 2:So whereas the trademark, you do have some rights by simply using it simply using it, and you're actually required to use it before you register.
Speaker 1:So yeah, and a trademark you can show. Okay, I've been using it for this long in this area. You know, even if I don't have registration on it, I have some sort of common law rights. A patent is not the same. So if you want to eventually kind of carve out the market and enforce you know rights, a product that you think is going to be a game changer, you have to you have to file a patent application on it.
Speaker 1:The only difference is there's an. There are instances where people may not want to file a patent, and it's in their best interest not to do so, and the reason being is because when you file a patent application, you are legally required to describe the entire thing in a whole. So, basically, what you're doing is writing an owner's manual. So when somebody reads your issued patent or your patent application, they're reading it and it's essentially giving them the ability to recreate what you, what you've done.
Speaker 2:You've provided a blueprint.
Speaker 1:You're providing a blueprint again, directions, owner's manual, all of that. There may be instances where people are in companies and and intellectual property owners don't want to do that. The biggest, most popular example Coca-Cola recipe. That is something that could be patented, but it holds more value in not being patented. So we call those trade secrets. So that is something that the value in that product is in its secrecy. Because again now I know on the Coke label you've got a list, you know the types of ingredients, but nobody knows that formula except for what two people in this whole world, and so there is value in maintaining that secrecy. People have tried to recreate Coca-Cola for years and no one's been able to do it. If you have to have a patent on it, you've got to at least put out enough information for somebody to try and recreate it and it's easier for them to do that. So there are definitely instances where people may not want to do that.
Speaker 1:I see it a lot with. You know any kind of chemical formula. I had a client who came up with some sort of like soap product and I was like maybe it's not in your best interest to do that. You know, when it's a physical device, you know you think of the oil field tools is what we deal with a lot down here. Or exercise machinery I've had a lot of those or hunting devices. Those are things that like they're physical devices, people can see it and look at it. It would be easy for you to take it apart, reverse engineer, kind of come up with how it's made and put together. So those are things that are beneficial to have a patent on because it's physical. But when it's something you know, again, it's a formula, it's a recipe and people don't necessarily know and they kind of have to guess and there's no way to really reverse engineer that and break it down to its parts. Those are probably things you want to keep more secretive.
Speaker 2:That was genius, that they didn't file the patent Right and that's one of the biggest. I mean it's held in some kind of safe.
Speaker 1:Safe lockbox, same with you know. The KFC recipe is another one, and you know, and a patent expires. So you know, after 20 years from your date of filing, filing that's gone and then it's available for everybody the market trade secret is not. As long as you maintain that secrecy, you're good to go did you know that coca-cola invented santa claus? No, they didn't. Yes, they did.
Speaker 2:No, they didn't yeah, yeah, unless my internet search is is is wrong I'll believe everything you see on the internet. Chess apparently that's the reason why it's red and white. Santa claus red and white. They morphed two characters together and the whole brand was. The whole purpose of it was to force people to drink Coca-Cola in the wintertime and associate wintertime, christmas, family events with Coca-Cola, because it was traditionally something that was more often consumed in the hotter months.
Speaker 1:Okay, Well, I'm going to double check that.
Speaker 2:I want to check it out and we'll edit this part out if I'm completely wrong. All right, but, sarah, thank you for being here. Yeah, appreciate it. Ton of great value. As always, enjoyed it. Thanks for coming back.
Speaker 1:Thanks for having me.
Speaker 2:Absolutely. Hey, it would mean the world to me if you subscribe to the podcast and leave us a five-star review. It helps keep the show free and it helps us book better guests to provide more valuable content to you. None of the opinions expressed by my guests are that of my own, and nothing we talked about creates an attorney-client relationship or could be construed as legal advice.
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