Common sense might not apply when it comes to copyright

Copyright, one of the two intellectual property rights explicitly mentioned in the U.S. Constitution, protects the expression of ideas, which can take the form of paintings, songs, movies and photographs, among other things. However, with the proliferation of such works online, many companies fail to recognize the legal implications of copying online material.

Along the same lines, as companies build their web presence, they fail to appreciate and protect their valuable rights.

Smart Business spoke with Dan Thomson, a partner at Emerson Thomson Bennett, about copyright, Fair Use, and the ways in which companies leave themselves vulnerable in this area of the law.

What are the issues businesses commonly encounter with copyright?

Many people falsely believe that anything found on the internet — such as images, videos, articles — are free to use. Using someone else’s work without permission, regardless of how available it may seem, is stealing.

Another area of confusion is understanding who owns what, especially when work for projects like websites and software are done by outside contractors. A common misconception is that hiring and paying a web developer to create your website also provides ownership of the copyright. However, according to copyright law, the copyright is owned by the web developer unless transfer of the copyright is explicitly written into the contract.

When it comes to work produced by employees, the relationship changes the equation. A web developer employed by a company to develop websites holds no copyright for the work they produce. That work belongs to the company. However, if a janitor takes pictures for the company’s website on the side, the company should be sure to have him or her transfer the rights for the images to the company, because taking pictures is not in the janitor’s job description.

How is copyright obtained and what protection does it offer?

A copyright exists as soon as the work is ‘fixed in a tangible medium.’ For example, for a painting, the copyright exists as soon as paint is put to canvas.

Since copyrights exist from the moment the work is created, a company’s copyrightable work is never completely unprotected. The problem comes when the company wants to enforce that copyright.

To actually enforce a copyright in court, and receive damages for a copyright violation, a copyright registration is needed, which is only obtained by filing an application with the U.S. Copyright Office. Registration provides for statutory damages that can be up to $150,000 per act of infringement, as well as attorney’s fees.

What is Fair Use and how does it relate to copyright?

Fair Use and copyright are directly related. It’s a statutory doctrine that allows for certain acts that would normally be considered copyright infringement to be undertaken without violation. This is most commonly the case in journalism, where substantial portions of a copyrighted work may need to be used.

There are four factors that must be weighed in determining Fair Use:

  • The purpose of the use — is it primarily for commercial or noncommercial purposes?
  • The nature of work — is it creative or highly technical?
  • The amount and importance of the work used.
  • The effect of the use of the potential market value of the work.

These factors will all be weighed, and if the factors weigh more heavily in favor of Fair Use, then the use will not be considered an infringement.

Copyright can be a difficult area of the law to understand because some of it may seem contrary to common sense. It’s important that companies understand that there are rules about how copyrighted materials can and can’t be used. Be aware of the issues surrounding copyright law and keep in mind the importance of having language in contracts with third parties that transfer the rights of copyrightable works accordingly.

Insights Intellectual Property is brought to you by Emerson Thomson Bennett

How to identify and protect your intellectual property

Karl W. Hauber, attorney, Fay Sharpe LLP

Karl W. Hauber, attorney, Fay Sharpe LLP

Business and product names, logos; unique product designs, shapes, utilities, functions; and other proprietary manufacturing methods can comprise a significant portion of a company’s potential revenue and intellectual property (IP).

Protecting IP is a critical component of a sustainable business strategy. However, many companies don’t take the steps necessary to fully guard the ownership of these properties, leaving them vulnerable to encroaching competitors and/or missing out on sources of revenue generation.

Smart Business spoke with Karl W. Hauber, an attorney at Fay Sharpe LLP, about identifying and protecting IP to avoid costly legal lapses.

What do trademarks cover?

Trademarks are used to protect business and product names (i.e. words and phrases), logos, and in some cases shapes and colors that are used to identify a company and its named products or services.

There are common-law protections for using a name or symbol, but a mark not registered with the U.S. Trademark Office can cause issues. For example, a second entity can register the same name or mark. The non-registering first entity may be restricted with respect to future use and prevented from further expansion.

By registering, an entity can become the exclusive user of a trademark in association with particular goods or services, so as to develop source association in that mark. The customer goodwill and market association can become valuable IP, the rights of which may be licensed or sold outright.

How does a copyright work?

Copyrights cover software, website content, schematics, music, photos, literary and artistic works, among other things. Once ‘original works of ownership’ are secured in a fixed medium or recorded in some way, there’s an inherent copyright associated with that material and the manner in which it is expressed. Copyright ownership provides the rights to reproduce the work and to prepare derivative works based upon it.

Copyright registration with the U.S. Copyright Office provides additional benefits. Mainly it’s a public record of the copyright claim, enabling the applicant to seek legal remedies and initiate a lawsuit against someone who has copied material or is using it without authorization.

What can be patented?

The most common patent type is a utility patent, which protects unique devices and apparatuses, methods of manufacture, chemical compounds, formulas and drugs — collectively referred to as inventions. Generally, an invention is a solution to a technological problem and may be an apparatus or a method. Having patent protection provides the owner the right to exclude others from using, making, selling or importing devices protected by the patent for 20 years from the application filing date. Patent rights can be licensed, assigned and sold, which may provide monetary gains and revenue for the patent owner.

A company can be barred from patenting an invention. If the invention is on the market, or publicly known, for more than one year it’s barred from patent protection and deemed a contribution to the public.

In addition, design patents cover the shape of or pattern applied to a product — how it looks through ornamental design only. Design patents have a 14-year lifespan and different protection. The bulk of the design patent application is drawings and figures that accurately depict a product. Enforcing a design patent involves infringers trying to market a substantially similar design.

What are the pros and cons of trade secrets?

Sometimes companies have a unique manufacturing method, for example, so they protect it by keeping it secret. In contrast to patents, where a detailed description submitted to the patent office eventually becomes known to all, trade secrets must be shielded from the public. The lifespan of a trade secret is based on its secrecy and will last as long as it remains unknown to others.

Once a company has something it believes is secret, it must take active, detailed internal steps to maintain the secrecy. But if someone can reverse engineer a product, there’s nothing to stop him or her from doing so. Manufacturing methods, for example, sometimes can’t easily be reverse engineered, so are better candidates for trade secrets.

Who can help companies protect their IP?

Working with counsel knowledgeable in this area of the law can help parties get through matters concerning the best way to protect IP. It is beneficial for interested parties to be proactive with their IP counsel and openly discuss plans and future initiatives so one can avoid costly disputes with others’ intellectual property rights.

Karl W. Hauber is an attorney at Fay Sharpe LLP. Reach him at (216) 363-9212 or [email protected]

Insights Legal Affairs is brought to you by Fay Sharpe, LLP

How to prevent deal-breaking mistakes when selling your business

Brian Reed, partner, Transaction Advisory Services, Weaver

Brian Reed, partner, Transaction Advisory Services, Weaver

Selling a business is challenging. From vetting potential buyers to preparing financial statements to keeping negotiations on track — all while running your company — there’s a lot that can go wrong. In fact, almost no detail is too big or too small to affect the eventual outcome of merger and acquisition (M&A) deals. However, you can reduce the odds of a mistake by knowing where similar transactions have gone astray.

“It’s important to talk to owners who have successfully completed sale transactions and to work with experienced M&A advisers,” says Brian Reed, partner in Transaction Advisory Services at Weaver.

Smart Business spoke with Reed about common M&A mistakes and key items to resolve before closing a deal.

How might sellers hurt their chances before putting their business on the market?

You risk a letdown when you make overly optimistic future earnings projections or put too much weight on variable measurements, such as the sale prices of similar companies in stronger M&A markets. If you won’t budge from an unrealistic sale price, you could drive away an appealing buyer.

Work with a professional adviser to assess your company’s value as well as estimate an offering price the market can support. The two may not match because the price depends on contemporary economic, M&A market and sector conditions.

Where does timing factor into this?

Other critical seller mistakes revolve around timing, whether internal or external. For example, selling at the wrong time, at the end of a market cycle, could mean fewer buyers and possibly lower offers. If your sector has experienced a recent wave of M&A deals, the buyer base could be depleted, and you may want to hold off.

Sometimes sales are spurred by internal circumstances, such as the retirement of a founding owner, but these situations shouldn’t rush the sale. If your company is not ready for the market, consider appointing an interim head to make preparations and screen potential buyers.

Sellers, particularly those selling for the first time, often greatly underestimate the amount of work and hours it takes to prepare for sale. Have you allocated enough time to implement strategies to maximize your sale’s value? Is your company ready to promptly and accurately respond to hundreds of specific buyer requests? If you haven’t assembled a team with the time and resources to handle these requests, it could bring your potential deal to a standstill and deter otherwise interested buyers.

How might housekeeping impact deals?

Housekeeping issues aren’t trivial. They include essential tasks such as ensuring that contracts and legal obligations are in order. Some items that can trip companies up are:
• Poor accounting. If your financial statements and records are not properly organized and presented, it reflects poorly on your management, and the due diligence process will likely take longer. Sloppy accounting errors could mean tax or legal issues after the deal closes.
• Neglecting key players. Buyers want to know that key employees will stay onboard once the sale is completed. Make sure your top performers are offered financial and other incentives to stay.
• Locking in contracts. Don’t renew an expensive vendor contract as you’re about to transfer ownership. Buyers don’t like long-term contracts they didn’t negotiate, particularly if they’ll be penalized for breaking them. Negotiate short-term contracts or push for favorable terms.

What are some common loose ends to watch for and resolve?

Leaving loose ends hanging won’t endear you to your buyer, as they could hinder integration and future profitability. Some common unresolved internal issues involve:
• Minority interests. Buying out minority investors or shareholders before a sale means the buyer won’t need to deal with their demands later.
• Employee controversies. An integration team doesn’t want to deal with open legal issues, for example, while trying to build a new culture.
• Copyright confusion. Make sure all patents, copyrights, trademarks and other intellectual property holdings are in order. If you’ve failed to verify and document ownership, you may risk the deal’s value.

Brian Reed is a partner in Transaction Advisory Services at Weaver. Reach him at (972) 448-6936 or [email protected]

Blog: To stay current on audit, tax and advisory issues that may impact your business, visit Weaver’s blog.

Insights Accounting is brought to you by Weaver

How to strategically manage domestic and international brand portfolios

Tom Speiss, shareholder, Stradling Yocca Carlson & Rauth

Tom Speiss, shareholder, Stradling Yocca Carlson & Rauth

Securing trademark protection provides a company with legal rights to market and sell its services or products, and offers this same company an opportunity to stop other companies from marketing or selling services or products that are, or could be, infringing upon its protected marks.

However, each country has different criteria guiding the trademark process, which introduces varied time and cost elements that can be difficult to navigate. Ignoring these laws could mean forever losing legal protection and the opportunity to market and sell goods or services under a valued brand name in key markets.

“There is no such thing as an international trademark, but U.S. copyrights can be enforced internationally,” says Tom Speiss, a shareholder at Stradling Yocca Carlson & Rauth, who works as a business adviser and brand manager.

Smart Business spoke with Speiss about managing domestic and global brand portfolios for companies operating at home and abroad.

How can companies protect their brands domestically?

Companies can protect their brands domestically through both trademark and copyright law. For trademark, the U.S. is a common-law country, which means trademark rights begin to be established as soon as a company starts using a mark in commerce. But it’s important to conduct a trademark availability search and, if the mark doesn’t infringe upon another’s mark and appears to be available as a federal trademark, then file an application with the U.S. Patent and Trademark Office to acquire federal trademark protection.

In addition, companies also can file for federal copyright protection through the Copyright Office. To start this process, product packaging, website material or other advertising material can be used as part of a copyright application. Once a copyright registration issues, the registration potentially can protect a company’s product packaging, Web content and advertising content, as well as the design elements of a trademark. The U.S. copyright registrations then may be enforced internationally, through a treaty known as the Berne Convention Treaty.

If a company has plans to expand in foreign markets, when should management consult an intellectual property (IP) attorney?

A company should bring in an IP attorney as soon as it starts thinking about foreign market expansion, even if the plan’s realization is years away. Companies must be advised concerning all trademark rules for the countries in consideration, including possible infringement issues; whether the brand name is even available; the timelines and costs for applications; how use and non-use might affect the rights being granted; and when a company is required to exercise any rights it has been granted before a mark is vulnerable to cancelation. Each of these steps can be measured in years and have a lot of moving pieces, so — as ideas are generated — counsel needs to be involved.

What are the criteria for foreign market selection?

Companies can point to home successes with their products, including sales and brand equity, as they venture out. However, the mark used in their home country may be unavailable in a foreign market, which means the company won’t be able to transfer that equity even though it’s a proven brand.

The recourse is to develop a new name. But that brings risk because then its history at home won’t translate to the new market. This is another reason to bring in an IP attorney at the onset of brand expansion to assist in successful brand development or expansion.

What should you ask your attorney regarding brand management in other countries?

The most important first step is determining whether the target country’s trademark laws are governed by the principle of first-to-use or first-to-file. IP attorneys also can help companies establish timelines, such as when a company needs to start using or selling a product in the target country. Good counsel will thoroughly search to discover if the mark to be used in the foreign market is already in use for the same or similar goods or services. Along the way, counsel can help clients understand what other regulations might be advantageous or impede selling in foreign markets.

Tom Speiss is a shareholder at Stradling Yocca Carlson & Rauth. Reach him at (424) 214-7042 or [email protected]

Insights Legal Affairs is brought to you by Stradling Yocca Carlson & Rauth


Jury says Apple iPhone violated three patents, damages unclear

WILMINGTON, Del., Thu Dec 13, 2012 — A U.S. jury on Thursday found that Apple’s iPhone infringed three patents owned by holding company MobileMedia Ideas, though damages have not yet been determined.

The verdict was delivered after a week-long trial in Delaware federal court, said Larry Horn, chief executive of MobileMedia. An Apple spokeswoman declined to comment.

The three patents, which cover features like camera phone technology, were acquired from Nokia and Sony Corp. in 2010, Horn said. Those two companies hold a minority interest in MobileMedia, he said.

Representatives for Nokia and Sony could not immediately be reached for comment.

The trial only concerned liability, and a damages proceeding has not yet been scheduled, Horn said. MobileMedia also has litigation pending against HTC Corp. and Research in Motion Ltd.

“Our goal is really to license these patents broadly to the market,” Horn said.



Samsung to add iPhone 5 to U.S. lawsuits vs. Apple

SAN FRANCISCO, Thu Sep 20, 2012 – Samsung Electronics Co said on Thursday it planned to add Apple’s iPhone 5 to its existing patent lawsuits against the U.S. rival, a move that could lead to a preliminary sales injunction of the popular smartphone.

The fresh legal step by the South Korean firm comes as Apple booked orders for over two million iPhone 5 models in the first 24 hours and the model hits store shelves on Friday.

Samsung and Apple are locked in global patent battle in 10 countries and the stakes are high as the two technology giants vie for the top spot in the booming smartphone market.

Both companies are also aggressively raising marketing spending to promote their latest products ahead of the crucial year-end holiday season.

“Samsung anticipates that it will file, in the near future, a motion to amend its infringement contentions to add the iPhone 5 as an accused product,” it said in a U.S. court filing.

“Based on information currently available, Samsung expects that the iPhone 5 will infringe the asserted Samsung patents-in-suit in the same way as the other accused iPhone models.”

Apple, Samsung patent trial set to kick off in U.S., billions at stake

SAN JOSE, Calif., Mon Jul 30, 2012 – Jury selection is due to begin on Monday in the United States in a high stakes patent battle between Apple Inc. and Samsung Electronics Co. Ltd., the culmination of over a year of pretrial jousting with billions of dollars in the balance.
Apple and Samsung, the world’s largest consumer electronics corporations, are waging legal war around the world, accusing each other of patent violations as they vie for supremacy in a fast-growing market for mobile devices.
The fight began last year when Apple sued Samsung in a San Jose, Calif., federal court, accusing the South Korean company of slavishly copying the iPhone and iPad. Samsung countersued.
The stakes are high, with Samsung facing potential U.S. sales bans of its Galaxy smartphones and tablet computers, and Apple in a pivotal test of its worldwide patent litigation strategy.
Apple will try to use Samsung documents to show its rival knowingly violated the iPhone maker’s intellectual property rights, while Samsung argues Apple is trying to stifle competition to maintain “exorbitant” profit, according to court filings.
A 10-member jury will hear evidence over at least four weeks, and it must reach a unanimous decision for Apple or Samsung to prevail on any of their claims.

Viacom wins reversal in landmark YouTube case over copyrighted videos

SAN FRANCISCO, Thu Apr 5, 2012 – A U.S. appeals court has revived lawsuits by Viacom Inc., the English Premier League and various film studios and television networks accusing Google Inc. of allowing copyrighted videos on its YouTube service without permission.

The 2nd U.S. Circuit Court of Appeals on Thursday reversed a June 2010 lower court decision in favor of YouTube, which had been considered a landmark in setting guidelines for how websites could use content uploaded by users.

“It’s hard to characterize this as anything other than a loss for Google, and potentially a significant one,” said Eric Goldman, director of the High Tech Law Institute at Santa Clara University School of Law. “It has given new life to a case that Google thought was dead.”

The original $1 billion lawsuit filed by Viacom in 2007 went to the heart of a major issue facing media companies, specifically how to win Internet viewers without ceding control of TV shows, movies and music.

It was seen as a test of the Digital Millennium Copyright Act, a 1998 federal law making it illegal to produce technology to circumvent anti-piracy measures, and limiting liability of online service providers for copyright infringement by users.

Writing for a two-judge panel of the 2nd Circuit, Judge Jose Cabranes concluded that “a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website.”

A YouTube spokeswoman said in an e-mailed statement: “All that is left of the Viacom lawsuit that began as a wholesale attack on YouTube is a dispute over a tiny percentage of videos long ago removed from YouTube. Nothing in this decision impacts the way YouTube is operating.”

Viacom, in a statement, said the appeals court “delivered a definitive, common sense message to YouTube: intentionally ignoring theft is not protected by the law.”

How to avoid the land mines that trademarks, copyrights and patents can create

David G. Henry, Sr., Member, Intellectual Property Group, Dykema Gossett PLLC

With an estimated 80 percent of the value of S&P companies in their intellectual property holdings, businesses cannot ignore the impact of IP on their bottom lines, their equity value and their day-to-day operations.

Intellectual property law is among the most complex and misunderstood fields of law and represents a veritable mine field for businesses, says David G. Henry, Sr., a member of the Intellectual Property Group at Dykema Gossett PLLC.

“Failing to recognize intellectual property issues as they arise, asking the wrong questions, or acting upon the many myths surrounding the proper handling of IP issues can lead to substantial losses and/or liability for a business, its shareholders and its officers,” he says.

Smart Business spoke with Henry about recognizing intellectual property issues when they present themselves and what to ask IP experts before acting in any material way.

What are patents and some of the myths regarding them?

Patents are legal monopolies that allow owners to prevent all others from making, selling, using or importing patented subject matter, which can include machines, chemical compositions, manufacturing processes and business methods.

There is a common perception that you can protect an invention by mailing yourself a letter describing your invention. However, that does little, if anything, to protect an invention, and relying only on that will destroy any patent rights for failing to file a real patent application. Applications must be filed within one year of the first public use of the invention, its sale or offer of sale, or a description of the invention in a printed publication, among other things.

Another fallacy is that you cannot patent something that is just a new combination of old parts. In fact, most new inventions are merely new combinations of old parts. Assuming that it is impossible to patent your invention, or that patents are easily circumvented and not worth the time and expense (another common misconception), you may miss the opportunity to secure your most valuable asset, perhaps costing you millions of dollars in value.

Finally, many people believe they can get around an existing patent simply by changing or adding something to the patented item. However, patent claims often cover much more than the item shown in a patent, and, if you infringe, it could cost you your business.

What are some misperceptions regarding copyrights?

There is often confusion about what a copyright covers. Copyrights protect the expression of ideas and information, not the underlying ideas or information. Items such as books, software, photos, paintings and recorded music may be protected, while mere information like recipes, mathematical theorems and phone listings may not.

There is a common misperception that if you change someone’s work enough, you can get around the copyright. However, copyright covers much more than just literal, verbatim copying, including the making of derivative works. And admitting that you changed someone’s work to get around the copyright may be an admission of infringement.

There is also the perception that if you pay for a copyrighted article that you own it, especially if you paid to have it made. However, ownership most often results from creating the work yourself or having your employee create it as part of his or her job (a true ‘work for hire’ under copyright law). Companies often make the mistake of thinking that because they paid an independent contractor that they own the end product, but they often do not, absent a contractual assignment of the copyright.

There is also the myth that you only have copyright protection if paperwork is filed with the government, but copyright exists the moment a protectable work is reduced to tangible form. You can be liable for infringing on a copyrighted work for which no filing has occurred.

However, before you can sue for infringement, you must register the work in a timely manner. Registering too long after publication and after an act of infringement can cost you the right to statutory damages and attorney fees.

How do trademarks work?

Trademark protection is for words and symbols that distinguish the goods or services of one vendor from those of all others. Trademark rules protect the public from confusion and makes commerce work. Properly selecting and protecting trademarks will help you protect your reputation and market power, and avoid considerable trouble and expense.

Businesses must know what they do and do not own as a trademark. If the Secretary of State’s office merely says a name is available as a corporate name, for example, that doesn’t necessarily means it’s OK to do business under that name. Too often, companies make the mistake of incorporating under a name that, if used as a brand, may infringe trademark rights of a third party. Some also believe that merely filing an assume name certificate (DBA) creates exclusive rights, but such is not the case.

Concerning infringement: Just changing a spelling or adding a word to an existing trademark often does not protect you. Trademark infringement typically exists if your trademark (however spelled or configured) creates merely the likelihood of confusion as to source, sponsorship, approval or affiliation. Trademark infringement is easier to commit than most think, can be very difficult to spot, is expensive to litigate and is potentially ruinous in terms of wasted reputation investment.

Intellectual property is often a company’s most valuable asset and is easily overlooked, lost or destroyed, or infringed upon. By understanding the value of IP and consulting with experts in the field, you can avoid the potential land mines that abound.

David G. Henry, Sr. is a member of the Intellectual Property Group at Dykema Gossett PLLC. Reach him at (214) 462-6439 or [email protected]

Kelly Borth: How a trademark can build product differentiation

Kelly Borth, CEO and chief strategy officer, Greencrest

Kelly Borth, CEO and chief strategy officer, Greencrest

Trademarks (™ or ®), trade names (Band-Aid or Kleenex), service marks (SM) and the like can be valuable brand assets of an organization or its CEO for that matter. They are not unlike patents that protect an inventor from someone duplicating an innovative process or product. The difference is that although you have to file post registration documentation at specified periods of time, trademarks do not have a limited right of use.

And like patents, the ownership of a trademark, trade name or service mark, as long as it is registered, can be assigned to anyone or anything: the person who created it, the shareholders or the company who markets the products and/or services.

So what defines a trademark?

By definition, trademarks, trade names or service marks are interchangeable terms and provide market differentiation, define proprietary processes, brand products and define ownership. The definition found at the U.S. Patent and Trademark Office,, states: “A trademark is a work, phrase, symbol or design, or a combination thereof that identifies and distinguishes the source of the goods of one party from those of another.”

An attorney who specializes in trademark law can best guide you on securing a trademark or you can go to the aforementioned website and manage the registration process yourself. The good news is it as long as there are not any complications, the process generally takes two years or less.

My focus on the importance of writing on this subject really promotes the marketing side of why using trademarks can provide a strong competitive advantage, lead to market differentiation and become an extremely valuable asset. The power of a name, phrase or company mark can be a game changer for some companies.

Using trademarks as a smart marketing strategy

Not unlike the days of sticking a flag in the ground to lay claim to a tract of land, using trademarks, trade names and/or service marks lays claim to company names, product and service names, positioning taglines, characters and artwork and more.

A good example of this would be McDonald’s. Try using a “Mc” in front of anything and see what happens. As consumers, when we hear something with the prefix “Mc,” we automatically connect with McDonald’s because of the way the company has branded its products.

What would happen if McDonald’s had not claimed that as is distinguishable mark? An example of a phrase, “It’s The Real Thing” was claimed by Coke, whose product, wave symbol and company name, Coca-Cola, are all registered trademarks. Laying claim protects the advertising investment these companies are putting into building name recognition and product differentiation.

What’s involved in making a claim?

So how does this apply to your company? You can benefit in very much in the same way.  Take an inventory of your marketing assets. What is trademarked? What should be trademarked? Do you have product and service names for what you offer the marketplace? If you do, how could that change your market position and brand preference? Do you have a logo mark? What about brand-defining graphics? All you need to do to make a claim is add a “™” or “SM.”

If you decide to complete the paperwork, pay the fee and register the trademark with the USPTO. Once approved, you can (and should) use the ® or registered symbol. Not using the symbols associated with evidence of claim of your trademarks can put them at risk.

Trademarks have hard asset value

I find that this point is best expressed by John Stuart, former CEO of Quaker Oats: “If this business were split up, I would give you the land and the bricks and mortar, and I would take the brands and trademarks, and I would fare better than you.”

Trademarks are marketing assets, and those assets can be owned by either you or by your company.

A smart transition strategy for business owners shared in a Vistage meeting by presenter Patrick Ungashick, author of “Dance in the End Zone,” suggested taking your company name and intellectual property and assigning them to a separate LLC. And since ownership of registered marks is transferable, that’s one smart business idea.

Kelly Borth is CEO and chief strategy officer for Greencrest, a 21-year-old brand development, strategic marketing and digital media firm that turns market players into market leaders. Borth has received numerous honors for her business and community leadership. She serves on several local advisory boards and is one of 25 certified brand strategists in the United States. Reach her at (614) 885-7921 or [email protected], or for more information, visit