March 31, 2017
Joe Calhoun of Calhoun Law Firm has over twenty-five years of legal and business related experience in commercial litigation and client counseling, especially in the intellectual property fields.
His law firm specializes in patenting- with emphasis in other important areas of intellectual property law. Like, protection of copyrights and trademarks. He assists clients in obtaining and enforcing competitive rights in their inventions, products, technology, works of art and marketing programs.
Calhoun’s primary areas of practice include the creation or registration of intellectual property rights, the guiding of clients’ commercialization of those rights, the assignment or licensing of such rights to or from others, and the enforcement of (or defense against) infringement claims. He also advises clients who are just starting a business or expanding a business.
A mentor at the Venture Center, Calhoun actively supports others on their entrepreneurial journey. He has also worked to form numerous community development corporations… to develop and implement plans to revitalize commercial districts and nearby housing. Up In Your Business is a Radio Show by FlagandBanner.com
Up In Your Business is a Radio Show by FlagandBanner.com
[0:00:03.2] TB: Welcome to Up in Your Business with Kerry McCoy. Be sure to stay tuned till the end of the show to hear how you can get a copy of this program and other helpful documents.
Now, it's time for Kerry McCoy to get all up in your business.
[0:00:17.9] KM: I’m Kerry McCoy and it’s time for me to get all up in your business. By that I mean to say share my business knowledge and wisdom with you, our listeners.
For the next our, me and my guest, a fellow entrepreneur and a patent lawyer will share our paths of entrepreneurship in pursuit of our dreams and give free advice on areas of expertise. The hope is that you might gain some knowledge and get insights into the risks and the rewards of owning a small business. Today’s topics will be patents, copyrights of intellectual property.
Now, you may be asking yourself, “What qualifies this lady to get up in my business?” and the answer is easy; experience. I started my company, Arkansas Flag & Banner, over 40 years ago with a meager $400. During the last four decades, Arkansas Flag & Banner has grown from door-to-door sales, to telemarketing, to mail order and catalog sales and now relies heavily on the internet. Each change in my sale strategy required a change in the company thinking and procedures. My wisdom, confidence and my company grew. My initial $400 investment now produces nearly four million in annual sales. I think four may be my lucky number.
In this next hour, here is what not to expect. Don’t expect textbook answers or pie in the sky theories. What you will hear is a candid conversation about really world experiences on topics I hope you’ll find interesting. Be prepared for the truth. It’s not always easy to hear. For example, in business there are very few overnight successes. I worked a part-time job for nine years before Arkansas Flag & Banner grew enough to support just me.
It’s not grown and expanded so much that to operate efficiently we require — Are you ready for this? A purchasing, manufacturing, graphic, shipping, technology, accounting, marketing, sales and customer service department, plus a retail store, 25 people or more make their living from working at Arkansas Flag & Banner. That didn’t happen overnight. Starting and owning a business takes persistence, perseverance and patience.
My guest today is entrepreneur and attorney, Joe Calhoun of the Calhoun Law Firm. His company’s specialty is patents, copyrights, trademarks, trade secrets. Shh!
Today, he is going to share his knowledge and be a great resource for those who want to protect their inventions, products, technology, works of art and/or marketing programs. I love all these. I call him a patent lawyer, but he probably has a more expansive description of what he does including helping startup companies.
Before we dig in to Joe Calhoun’s psyche, let me tell you a little bit about him. He has a B.S. degree. Don’t all lawyers have a B.S. degree?
[0:03:24.7] JC: Very few actually.
[0:03:27.6] KM: Actually, B.S. is for bachelor of science from Tulane in biology and psychology. He went to law school at the University of San Francisco. When he returned home to Little Rock, Arkansas, he worked as a law clerk at the Arkansas Court of Appeals. His next career move took him into the area of private practice with a well-known Little Rock law firm where he eventually became a partner.
No the eve of 2000, Joe left the comfort of his readymade career and jumped into the world of entrepreneurship when he formed Calhoun Law Firm. Today he is able to concentrate on his preferred areas of expertise, which are; patents, copyrights, trademarks, trade secrets and business competition. In addition, he loves working with startups and mentoring.
Here to share his knowledge with us today is my friend, my neighbor, and attorney, Mr. Joe Calhoun. Welcome to the table, Joe.
[0:04:27.7] JC: Thank you, Kerry.
[0:04:29.1] KM: Do you know that the last two places I have lived, you have moved on to that street? Are you following me around?
[0:04:36.4] JC: I’ve been stalking you [inaudible 0:04:37.5].
[0:04:39.1] KM: I thought about that when I was writing this. I thought, “Hmm. We keep living next to each other.”
[0:04:43.7] JC: We’re backdoor neighbor.
[0:04:44.8] KM: I know. We were. Now, we’re side-by-side neighbors. After reading your bio I’m going to have to start addressing you as counselor when I see you walking the dog. You started your business in 2000. That was 16 years ago, but you say that you’ve been in this business for 25 years. Explain that.
[0:05:06.6] JC: I started my firm very beginning of 2000, but really I’ve been practicing law for a number of years before that. When I graduated from law school out in San Francisco, I was working for a commercial litigation firm out there, but I was a Little Rock boy, born and raised and knew I was going to die here and thought outside, “Let’s go back. It’s time to get home.”
[0:05:29.0] KM: Are your parents here?
[0:05:30.5] JC: They are no longer with us, but they were.
[0:05:35.0] KM: All right. Here’s the big question. In 2000 you started Calhoun Law Firm. Was there something that happened that became a deciding factor to make you take that leap of faith into entrepreneurship?
[0:05:48.3] JC: I think it was a really a culmination of a number of factors. I really had gotten my practice I’d developed into the intellectual field. There weren’t that many intellectual property lawyers then, and there aren’t that many now, actually. There was another attorney at my firm that he had just moved here from California and we kind of teamed up and we went off of on our own. We just decided to make jump, got our own little Y2K bug and just went off on our own and just went for it.
[0:06:26.1] KM: Are you all still together?
[0:06:28.3] JC: No. Danny is no longer here actually. He’s been no longer with us.
[0:06:31.8] KM: Is he in Arkansas?
[0:06:33.9] JC: He’s in heaven.
[0:06:35.6] KM: Oh my gosh! I keep asking you these ended questions. I’m sorry. I don’t know what to say about —
[0:06:40.8] JC: I tried to be diplomatic about it.
[0:06:42.5] KM: Oh, okay. How many people are at your business now? How many lawyers do you have there?
[0:06:46.7] JC: In Little Rock we just me. I’ve got another attorney whose of council to me in Palo Alto. We have a small office out there, and he’s a California-based attorney. Actually, his previous life, he had been a software engineer and then he was into software — He was managing software development teams and decided he’s going into law.
[0:07:11.5] KM: That’s intellectual property. Does that kind of how it ended up? He ended up — Because he was doing software he ended up finding out so much about patent law through his own intellectual property?
[0:07:19.8] JC: Absolutely. Yes, he went to law school and got out. You had to have a special license to be a patent lawyer.
[0:07:25.7] KM: On, really?
[0:07:26.2] JC: Not every lawyer can be a patent lawyer. When you said all lawyers have a B.S. degree, you meant B.S. in a different sense. As a practical matter, most lawyers don’t have the bachelor’s science degree that you really kind of almost have to have that to be a patent lawyer.
[0:07:42.0] KM: I see that you do bio technology patents. I would see how your degree would be very important. How would you even know how to patent bio technology without a degree?
[0:07:55.2] JC: You would not. Those types of patents were very, very new in the field. No organisms were patentable until about 1998 or so, until the decision came down. Actually, it’s a little earlier than that. It’s really a niche. Really, as a practical matter, I handle a lot more than just biotech. Really, a lot of mechanical types of patents, there are software patents. Just a number of different types of technologies.
[0:08:23.2] KM: What about Monsanto who patents their seeds? That’s new.
[0:08:28.3] JC: Yes, and those are two different types of patents. It was called a utility patent on some of those. Really, those are plant patent predominantly, when you can patent a specie, newly developed species.
[0:08:42.0] KM: Is there any end to what you can patent?
[0:08:44.9] JC: Oh, yes. There is. The rules are getting ticky on some of these stuff, but there will be always something new to patent, just not different genres.
[0:08:55.5] KM: All right. This is a great place to take a break. When we come back we’re going to learn more about Calhoun’s law firm an how it can help us. We’re going to dig into the business of patents and trademarks and copyrights and find out what the difference is and what is patentable.
You’re listening to Up In Your Business with Kerry McCoy. I’m speaking today with Joe Calhoun from the Calhoun Law Firm in the River Market of downtown Little Rock, Arkansas. Joe, what do you think about, “I fought the law, and the law won.” Do you think that’s a good idea?
[0:09:35.8] JC: The law is always going to win.
[0:09:36.8] KM: There you go. That’s a perfect answer. I read this, you say this about your firm, “The Calhoun Law Firm has over 25 years of legal and related business experience in commercial litigation and client counseling, especially in the intellectual property fields.” You say, “Our primary practice areas include the creation of registration of intellectual property rights, the guiding of clients’ commercialization of those rights, the assignment or licensing of such rights to or from others, and the enforcement of or defense against infringement claims.”
Gees! That sounds like lawyer talk. Can you tell us in layman terms what that means?
[0:10:23.6] JC: Well. Really, my primary niche is patenting, but as a practical matter not everybody need to patent. My more general specialty is really helping startups get started up. If they’re already started up, helping them expand. A lot of folks when they come to me, they’ve got an idea or some sort of a product or service that they’re really wanting to try to get protected and turn it into a competitive advantage so that they can compete in the world. You often times need a competitive advantage to do anything.
[0:10:57.8] KM: Can everything be patented?
[0:10:59.4] JC: You can get a patent on things, articles of manufacture. People call them widgets or products and things like that. You could get patents on processes, manufacturing processes or even methods of doing business and methods of doing things. You can get patents on improvements to those types of things. Again, you can get patents on plants, and there’s this thing called a design patent.
Look at it this way; there is a utility patent. You get a patent on the functional aspects of whatever this device or this process is, what it does. There’s another patent called a design patent where you get a patent on really what it looks like on the external or in a mental appearance of the product.
[0:11:43.6] KM: Really?
[0:11:43.7] JC: The biggest case recently on that has been the Apple versus Samsung. Half of that case was about utility patenting on the functionality of the software, but a good portion of the case was on the sleek streamlined look of the iPhone and how, according to Apple, Samsung copied or infringed that design patent.
[0:12:07.6] KM: Did they win?
[0:12:09.3] JC: They are still battling at it with the court. Recently, a decision came down where Apple had won the first round and then the appellate court just revered the judgment of 500 and something million dollars because of the damages calculation.
[0:12:24.4] KM: What does that mean, the damages calculation?
[0:12:26.7] JC: Once you find that there is infringement, that someone has copied this particular product, for instance, then the question is, “Okay. There is liability for patent infringement,” but the question becomes, “Was there damage? Was there financial harm caused by that copy?” That’s where the money is. That’s where when you’re going after those cases —
[0:12:46.5] KM: Do you think there was infringement and harm, damaged harm that came to Apple over the droid design copy? Just you.
[0:12:58.2] JC: I don’t know.
[0:12:59.2] KM: I don’t think so.
[0:13:00.6] JC: I don’t keep up with that.
[0:13:01.0] KM: How can you even — It seems to me like that would be hard to win.
[0:13:07.2] JC: Apple was the first to come out with that very sleek minimalist design. They filed some design patents and —
[0:13:17.4] KM: You file the patent, you file the patent. There you go.
[0:13:21.2] JC: They were the first to jump on it, and I guess the jury came back and said that there was infringement and found damages. Then the appellate court said, “You mis-calculated the damages.” That’s where it is right now.
[0:13:31.7] KM: How many lawyers are in your firm?
[0:13:33.8] JC: There’s me, and there’s Mark Koo out in Palo Alto. I talked to you about that earlier.
[0:13:38.3] KM: Oh! Is that where he is? I saw that you had Mark Koo. You say he’s “of council”. Does that just mean he’s a lawyer?
[0:13:43.9] JC: We have a continuous working relationship. We share cases. We coordinate on cases, collaborate on cases and things like that.
[0:13:53.2] KM: Then you have Marina.
[0:13:54.1] JC: Yes. Marina, she is formerly a UAMS professor. She’s been in academia in scientific research for 20 something years. She’s originally from Moscow, Russia.
[0:14:08.6] KM: Yeah. I can’t even pronounce her last name.
[0:14:10.1] JC: Mikhailova. She’s quite an asset. She helps out on the biotech type. She’s a patent agent. That’s what she is.
[0:14:19.6] KM: She’s got a Ph.D. in biological science. You are doing a lot of biotech. With your background and her background, y’all can really probably geek it out on the bio.
[0:14:30.9] JC: That might be true.
[0:14:32.9] KM: Yeah. I don’t even want to be at those beer drinking events.
[0:14:35.4] JC: Yeah. There’s patenting — Really, a lot of people come in with a lot of different technologies. It doesn’t have to be high tech to make money. Many low tech devices are really tremendous. It’s not like the higher tech the better. That’s not the case at all. It’s just how innovative it is and how it’s perceived in the marketplace, how the consumers desire it.
[0:15:04.5] KM: People call me all the time at Arkansas Flag & Banner and they say — Really, I get this call a lot. They say, “I have designed a flag and it is the best flag ever. Will you sign a non-compete and make these for me and put them on your website and they are going to fly off your website.” I know that that’s not true. You can make all kinds of stuff, but without marketing and advertising it’s like putting up a billboard in the middle of a desert.
They’ve often think that by just designing a great flag, that somehow people are going to come to them and they’re going to become rich without thinking about the advertising and marketing piece of it, which really is probably the biggest piece of almost anything.
[0:15:57.0] JC: That is a great observation, because many of my clients, they feel that as soon as they get their patent, money is going to start raining in. Some of the biggest obstacles is convincing a patent owner, an inventor, to turn that baby loose and give it to somebody who can actually make some money with it. Not all creative people, inventors especially, are necessarily good marketers. You really have to convince the inventor often time. They need to expand their team and they need to pull in some marketing and sales expertise.
[0:16:42.1] KM: Yes. Some of the games, like Monopoly. A lot of games at Mattel were not even invented by Mattel, anybody that work for Mattel. They were invented by a guy with a great idea and they took it to Mattel who had deep pockets and big marketing outlets and they began to sell the game clue, for instance. That was people that created the game and patented the game had to be able to let go of their baby enough to give it to somebody and give up a part. Who wants 100% of nothing when you could have 40% of a lot?
[0:17:21.6] JC: It’s true of so much. People that get patents, by enlarge, they’re small people. They’re not big business. They’re entrepreneurs. They’re solos. People like that. They’re out there, very creative folks, on their own and they’re getting the majority of the patents. They just need to learn, “Hey, we’re smart enough to get the patent, but it’s not about brains necessarily in getting it into the consumer’s hands and getting them to write a check for it.”
[0:17:52.3] KM: Yes. You’ve got to have a marketing avenue. If they can sell the pet rock, and this is going to make you crazy, but now I’m drying hydrogenated water, which drives my family crazy. They’re like, “Water is hydrogenated.” I’m buying hydrogenated water now and they’re like, “Okay! Here’s my pet rock.” That’s marketing.
[0:18:11.7] JC: Yes.
[0:18:12.8] KM: It was a great idea and I wonder if that guy patented his hydrogenated water.
[0:18:16.6] JC: Good question.
[0:18:18.4] KM: All right. You say that a substantial part of your law practice involves helping other law firms that do not have IP attorneys. What does that mean?
[0:18:30.1] JC: Again, there’s not that many patent lawyers around primarily because you do need a science background, and most attorneys are English majors, history majors, political science majors and people like that. There’s already a shortage, so to speak, of patent lawyers. A lot of law firms don’t know they could get the business. They don’t have in-house their own patent lawyer on their staff.
[0:18:57.2] KM: All these people that are going to school right now and are going in for B.A. and political science should be getting a bachelor’s of science degree so that they can have a different type of specification in their law practice.
[0:19:11.6] JC: Everybody should get their education on what you love, but also what’s going to help you if you want to try to make a living with it.
[0:19:20.1] KM: I never would have thought though a bachelor of science and law went together when I read that about you. I don’t know why?
[0:19:26.9] JC: I was one of those guys that really didn’t know exactly what I wanted to do in college. I happened to like the science and that was really where my heart lie, and once I got out of undergraduate I’d actually gone out to California working for a restaurant to get a years’ worth of residency there so my next education would be cheaper. I was going to be pursuing a Ph.D. in, basically, neuroscience or neurobiology. During that year I just had a change of heart.
[0:20:01.3] KM: From neuroscience to law?
[0:20:03.4] JC: Actually, there was a stint in there when I was actually a soap salesman for Colgate Palmolive up in my territory with wine county, was basically the Golden Gate Bridge, north up to the Oregon border.
[0:20:16.4] KM: You were drunk when you made this decision.
[0:20:20.7] JC: Very clean with my soap.
[0:20:23.7] KM: You’ve learned how to do that. What happened, really? What did happen? You just went during that soap-selling episode of your life.
[0:20:32.7] JC: That taught me — Being a very small cog in a multinational corporate wheel was an interesting experience, and I really learned about business, just everyday business. One of the things I learned is — I was a good salesman, but I also was tired of — I was on the road every other week visiting a different region on my territory and I just got the feeling of, “Hey, this is a lot of fun, but it’s going to have its limitations for me.” So I started looking into some other degrees and it just so happened that law and business was what I wanted to do. That’s what I did.
[0:21:10.2] KM: I cannot stress to listeners how important it is to just work at anything at any job because you never know where it’s going to lead you. So many entrepreneurs end up entrepreneurs because they took a job, because they had to have money, like selling soap, and I was selling flags, and it took them somewhere that they never dreamed they’d go. I can tell you this. If you’re sitting on the couch waiting to get a job and only in what your degree is in, you’re going to miss an opportunity out there.
[0:21:48.0] JC: You bet. Just like the old saying that Thomas Edison, I think it was him, that when he finally invented the light bulb and it took him hundreds or thousands of time and he basically said, “Hey, the other times were all good. I learned how not to do it, but it led to the way to make it correctly.” Same thing with me, I tried this, I tried that, but I’ve kept following kind of my instincts of what I liked to do.
[0:22:15.8] KM: Yeah. I read your law firm works with individuals and businesses both. The Calhoun Law Firm crafts creative legal solutions for businesses and individuals in need of guidance and courtroom representation in the areas of patent procurement, licensing and litigation, copyright registration license and litigation. Trademark registration license and litigation. All of these are litigation. Trade secrets counseling, unfair competition counseling, false advertising. I want to talk about that. Business organizations, contract negotiations, commercial law and so on. What is the difference between patents and copyrights?
[0:22:58.2] JC: Okay. Both patents and copyrights were provided for in the constitution and it’s probably because of Benjamin Franklyn’s influence in drafting the constitution. He was an inventor and a publisher. You get patents for inventions. You can get a patent for an invention. You get copyrights for works of art. There is very little overlap between those. Either you’ve got an invention that has a usefulness, it’s a useful thing. You get a utility patent for that, or other creative output from graphic arts to sculptors, three dimensional art, to music, to just literally works, authorships. Computer programming is kind of a crossover. It was originally protected strictly by copyrights until about 1998 when a case case came down. For the first time it made computer governed inventions could possibly be patented. Ever since then, there’s a secondary form of protection. Really, patenting is the most powerful, if you can get it. It’s a lot more difficult to get and it doesn’t last as long, but it’s much more powerful while it exist.
A patent will last 20 years from the filing day to the application, so that if you — If it takes you a year and a half to get your patent, you got 18-1/2 years left of protection. Copyrights on the other hand can last at least 70 years after the death of the last surviving coauthor. It lasts a long time.
[0:24:48.5] KM: That’s why Marvin Gaye’s family was able to come back and sue — Who was that they just sued?
[0:24:54.9] TB: The Blurred Lines song.
[0:24:56.4] KM: Yeah. You know what I’m talking about?
[0:24:58.3] JC: You’ve got Elvis copyrights still out there. There’re a lot of those. They last a long time and it doesn’t cost very much to go after. You’re talking about a $35 or $55 filing fee at the Library of Congress, which is where the copyright office is. You’d wait about six to eight months for them to process it. Typically, you’ll get your copyright registration certificate back in the mail.
[0:25:25.0] KM: Some of the people that played in Dreamland are so far back that they don’t have copyrights on their music anymore. 70 years is usually the length.
[0:25:33.5] JC: No. It’s longer than that. That’s the shortest. The shortest duration for a corporate, and works made for higher can be 120 years. That’s the shortest deadline right there, is at least 70 years after the death of the last surviving coauthor or co-creator.
[0:25:48.4] KM: What’s the difference between copyrights and trademarks?
[0:25:52.2] JC: Copyrights, again, those are for works of art. Trademarks are totally different. Copyrights and patents are much more close to each other. They’re both types of property where the inventor or the creator is going to get protection for that particular creative output.
Trademarks, the focus is really about preventing consumer fraud. Yes, the owner of trademarks does get the incidental benefit of getting the protection, but the whole thing about trademark protection, it’s for source identifiers. You see a symbol, or you see a word or two and you think —
[0:26:33.9] KM: Nike. That’s Nike’s checkmark.
[0:26:36.0] JC: Just see a swoosh, or just see Just Do It. You know that’s Nike. That’s the difference. When you protect trademarks, you prevent the competitors from adopting a confusingly similar marks so that they can’t deceive the consumers and divert those customers to themselves.
[0:26:55.5] KM: If even if you make it slightly different, if it’s deceiving — Like people send out mail that look like the U.S. Government sent it out. How are they doing that with a seal that looks like somebody else’s seal?
[0:27:07.3] JC: That’s deceptive. There’s a cottage industry in that, but it is deceptive and you don’t have to adopt the exact replica of somebody else’s mark.
[0:27:17.5] KM: To be infringing.
[0:27:17.8] JC: Correct. Although if you do, often times you see like these Louis Vuitton bags or something of that nature where it is an exact replica, and that’s counterfeiting and those are criminal penalties and much higher fines as well.
[0:27:30.3] KM: It’s everywhere. Why are they not getting sued?
[0:27:33.0] JC: They are.
[0:27:33.4] KM: They just can’t find them because they’re offshore?
[0:27:35.7] JC: They’re going after them. There’s a great amount of effort and money put into that.
[0:27:41.1] KM: What’s a trade secret?
[0:27:43.3] JC: Trade secret, a classic example is a formula for Coca-Cola where it has independent economic value just from not being known by others, okay?
[0:27:58.2] KM: Bush’s Beans family secret.
[0:27:59.8] JC: That could be, or the Kentucky Fried Chicken, the recipe for that perhaps.
[0:28:05.1] KM: I worked there. I tried to get that one. I want Faded Rose’s soaked salad recipe.
[0:28:11.7] JC: Oh. Yeah.
[0:28:13.8] KM: Let’s take a break. When we come back, I want to find out what is patentable and what is not, because I want to talk about names that are patentable.
You’re listening to Up In Your Business with Kerry McCoy. I’m speaking today with Joe Calhoun from the Calhoun Law Firm in the River Market of downtown Little Rock, Arkansas. Why did you pick the River Market? Is that your second place you’ve been or is that the first place you went to?
[0:28:46.0] JC: I picked that. That was the second place, and I’m no longer there actually.
[0:28:52.6] KM: You don’t have a plate on the wall at the —
[0:28:56.3] JC: On the ceiling?
[0:28:57.4] KM: What was the name of that?
[0:28:58.1] JC: I’m so angry about the flying saucer.
[0:29:00.3] KM: Cause you deserved a plate on the ceiling.
[0:29:01.8] JC: I had a hundred beers and by the time I got my hundredth beer and I presented it for that, they said we upped the number.
[0:29:12.6] KM: Oh my gosh! Did you sue them?
[0:29:15.7] JC: Hey! I had an office directly above their kitchen.
[0:29:18.3] KM: I know. That’s too tempting.
[0:29:20.7] JC: I was very much of a regular down there on that time.
[0:29:23.5] KM: How many beers? Do you have to have a hundred?
[0:29:25.0] JC: Hundred at the time. Now, it’s more.
[0:29:27.5] KM: It’s just a third of a year. You used to go eat down there every day — You used to go eat lunch down there and have a beer every day for hundred days. That’s only four months out of the year or five months out of the year. Yeah, you could do that in a heartbeat.
[0:29:38.8] JC: Now, I’m at the BancorpSouth building on the fifth floor down by — kind of close to the river.
[0:29:43.5] KM: Oh, you like that?
[0:29:44.2] JC: Oh, yes. It’s a great place.
[0:29:44.9] KM: That’s nice. You’re moving on up. All right, let’s pick a part. What’s patentable and what’s not. During the break we talked about name, because I would like to patent Flag and Banner.
[0:29:56.1] JC: Okay. Again, you can’t patent a name. Again, you get patents on inventions. Is there a name that’s an invention? No. What you’re talking about, Flag and Banner, that’s a source identifier obviously. Trademark registration. Okay?
[0:30:12.5] KM: What?
[0:30:12.8] JC: Trademark registration. Now, keep in mind, any time you have a source identifier. We talked about Nike. We talked about the Swoosh being a source identifier, or Just Do It as being a source identifier for Nike. Once you start using something that’s a source identifier, has some sort of identification significance to consumers, you actually have a trademark at that time. You don’t have to register it. You have a trademark. What registration does is it will expand your protection outside of your immediate trade area to the entire United States if you get a federal registration.
[0:30:48.6] KM: Can I go register my name Flag and Banner?
[0:30:51.4] JC: Oh, absolutely. Yes.
[0:30:53.0] KM: What?
[0:30:55.3] JC: It’s not required, but it makes good sense to do so. It will prevent someone — It will put you on a national dataset. It will prevent someone from claiming later on that they had no reason to know about your name when they adopted a confusingly similar name.
[0:31:11.8] KM: Oh! They do that all the time to me on the internet. People are always chasing me around and trying to exploit my name, and I didn’t know I could do something like that.
[0:31:18.8] JC: Yeah. You really have to protect your identity, your business identity as well as your personal.
[0:31:23.2] KM: Every time I listen to my own show, I learn something. Last week I learned that you could clean your jewelry with 50% Mr. Clean and 50% water and that Stanley Jewelers cleans their jewelry with that and that it’s the best. My daughter did it and she said — Shout out to Laura Stanley, that it is the best cleaner jewelry ever.
Every week I learn something new. I’m going to go do that. How much is that cost you? You can tell me later. Or can I do it myself online?
[0:31:52.6] JC: You could do it yourself online, but it will be difficult.
[0:31:56.2] KM: Yeah. I don’t even read well, so it’d really be difficult.
[0:31:58.1] JC: It’s subtly simple.
[0:31:59.4] KM: Let’s pick a part in inventions. What is patentable and what is not patentable.
[0:32:03.9] JC: Okay. You’ve got on the just standard things, widgets, products, things of that nature. You got software. Again, software is that neat kind of crossover between patent protection and copyright protection. The thing about patenting, you got these design patents as well, and oftentimes you can get both copyright protection and design patent protection on the same thing. You talked about this flag for instance.
[0:32:40.1] KM: Yeah.
[0:32:40.6] JC: Okay. Flag is useful article. You can probably get a design patent on a flag if you pass the patenting test.
[0:32:51.1] KM: The POW-MIA flag was patented.
[0:32:55.1] JC: Okay. All right. You can also — The graphic design of that flag, you can get copyright protection on that. Just a pure graphic output and you can put that graphic output on a coffee mug or on a t-shirt or what have you.
[0:33:13.0] KM: That doesn’t seem like a good idea, because marketing is so important. You kind of want people to share your graphic. You want them to buy your product, which is your flag, and you want them to share that graphic so that your flag gets free advertisement.
[0:33:25.1] JC: Yeah. You just don’t want competitors to be able to copy it and undercut your profits and so forth.
[0:33:31.8] KM: Sometimes the highest compliment there is is to be copied.
[0:33:35.7] JC: Yes, but if that copier puts you out of business because they’re selling a lot cheaper, you can be complimented all the way to an insolvency.
[0:33:44.0] KM: Well, yes. If it’s copying you in a non-destructive way that’s just kind of sharing your logo, let’s say, but they’re not stealing your product but they’re sharing your log, that could be almost a viral sort of advertising for you.
[0:34:05.5] JC: Yes, if it’s not a competitor. Again, you don’t mind people forwarding or sharing some of your handy work, but you just don’t want competitors to copy it and undercut your sales.
[0:34:20.2] KM: I have a friend who makes the U.S. flag. He hand paints the U.S. flag, and he sent it up to the fire station during 9/11 this beautiful U.S. flag. Pretty soon it became very popular and pretty soon people started copying his style. He feels like it’s a huge compliment that people are copying his style. Was there anything he could do to protect — It’s the U.S. flag.
[0:34:46.1] JC: Right. The fact that’s it’s the U.S. flag that you’re not going to be able to get any rights to that. Although you can get some copyrights to some variations of it if you want to. It’s a minimal level of creativity will support copyrights, okay? I did see a U.S. flag and in the red stripes, all the stripes bore the names of 9/11 victims.
[0:35:11.8] KM: Yeah. That was one copyrighted.
[0:35:13.6] JC: That was huge. You didn’t get copyright on the flag itself, on this other artistic version of it.
[0:35:21.8] KM: That was the Flag of Heroes.
[0:35:22.4] JC: Yeah.
[0:35:23.0] KM: Then there was a Flag of Honor. One was the Flag of Heroes, which was all the service people that died. One was the Flag of Honor, which was just all the civilians that died. Lovely idea.
[0:35:31.9] JC: The thing about copyrights is that you can’t copyright an idea. You copyright, really, just the physical perceptible manifestation of this creative output. As soon as you fix some creative output on some perceptible medium, it could be on anything. As soon as you fix it, it’s that particular version that you’ve got copyrights to.
[0:35:57.9] KM: They can just barely change it and all of a sudden your copyright is no good. What about your inventions made out of metal and they make it out of plastic? Now, is it not the same?
[0:36:05.7] JC: No. The copyrights, the infringement test is substantial similarity. If you just change a little bit no, that’s not necessarily going to get out under an infringement claim.
[0:36:16.6] KM: This is complex, and it is a lot of litigation, because there’s a lot of angles in which — Do you do a lot of litigation and slit hairs with people?
[0:36:24.4] JC: I do a fair amount. The copy and paste mentality is a copyright lawyer’s dream.
[0:36:29.7] KM: What does that mean?
[0:36:30.9] JC: Copy and paste?
[0:36:31.5] KM: Yeah.
[0:36:32.5] JC: When you’re online and you highlight something and you hit copy and then you move it to another thing and paste it elsewhere and just put it on your own document or put it on your own webpage or what have you.
[0:36:46.6] KM: It sounds like appraisers also.
[0:36:47.8] JC: That’s copyright infringement. Copyrights gives the copyright owner the right to control copying and to control changes, derivatives to it and also it gives you the right to perform or display the original in public.
[0:37:02.3] KM: What about Michelle Obama’s speech practically read word for word. Is that an infringement? It wasn’t copyrighted. The speech wasn’t copyrighted, I doubt.
[0:37:11.7] JC: Here’s a legal subtlety. Copyrights technically spring up automatically into existence as soon as you fix some creative output in some perceptible medium. You don’t have a court to enforce them in until you register the copyrights, okay? When you say something was not copyrighted, what you’re telling it was not registered, I suspect.
[0:37:35.7] KM: I suspect.
[0:37:37.3] JC: If it wasn’t registered, it wouldn’t be too late to register, but you don’t get damages kind of after the fact. You have to get damages after copyright registrations.
[0:37:49.2] KM: All these speeches around the world probably are not copyrighted. People just plagiarize speeches all the time. You hear about it all the time.
[0:37:56.3] JC: They’re on the open airways, and I guess through videos. There are some exceptions to copyright infringement. It’s called fair use, and it’s really typically where the courts have weighted competing constitutional rights, and fair use is the first amendment right of free speech, and association and so forth, versus the other constitution, the right to copyrights. Guess what?
[0:38:22.5] KM: What?
[0:38:23.0] JC: The first amendment right that endures to all the American people beat out the copyrights that endures to one person. For reporting, news reporting, even satire, you can use copyright protected material and you’re not infringing, because it’s basically been a public policy decision by the judges that, “Hey, free speech.”
[0:38:47.4] KM: I got it. You were saying also at the break that you could copyright smells. All the perfumes are copyrighted.
[0:38:54.0] JC: You can get trademark. Trademark registration. Again, anything with source identification significance, there’s that — I’m trying to think of the name of the studio, but it goes bam-bam-bam.
[0:39:07.5] KM: Oh. Yeah, CBS. That’s CBS.
[0:39:08.0] JC: CBS.
[0:39:10.2] KM: That was good, Joe.
[0:39:10.8] JC: That’s trademark registered. There is a yarn that it’s got a particular fragrance.
[0:39:17.5] KM: A yarn?
[0:39:17.6] JC: Yeah, sewing yarn or knitting yarn that has —
[0:39:20.8] KM: Really? Did you do that or something? How did you know that?
[0:39:23.5] JC: Just something I’ve picked up in the 25 plus years.
[0:39:25.4] KM: Tell me the most — If you can, tell me what the best or most interesting thing you’ve ever copyrighted or trademarked.
[0:39:32.0] JC: Oh, goodness. Gosh! That’s going to be hard. The neatest thing about my life —
[0:39:38.9] KM: You better say Vicky. Vicky is listening. Vicky.
[0:39:42.0] JC: Besides Vicky. Is really the fact that people come to see me and they’ve got dreams. They don’t come to see me because they’ve been busted or they’re going bankrupt or getting a divorce. They’re hurt, what have you. They come to see me they’ve got these dreams and they’ve been thinking about it. They got some really neat things they’re trying to protect and kind of turn into maybe an alternative life.
[0:40:09.9] KM: That is so interesting. I love that.
[0:40:12.3] JC: There’s just so many neat things, projects I’ve done for people that have gotten them protection on.
[0:40:20.0] KM: Have any of them blossomed in anything really, really big?
[0:40:22.7] JC: There’s one company that was traded on NASDAQ. It started off locally here and they got some funding elsewhere, in Chicago and then they got more funding elsewhere —
[0:40:32.6] KM: Was that ContourMed? . I saw ContourMed was on your list.
[0:40:35.8] JC: ContourMed, that’s not — Although ContourMed is still here, that was the first spinout of the UAMS and I helped organized, form that company and named them and got their trademark registration and got them up and going.
[0:40:51.6] KM: I love that name. You named that?
[0:40:53.0] JC: That’s a neat name. Yeah.
[0:40:53.8] KM: That’s a great name. It is a good name.
[0:40:57.3] JC: There was a brainstorming session with the clients and me and I kind of came up with that.
[0:41:01.4] KM: I like it. I think I even bought stock in it when it came out a long, long, long, long time ago. We didn’t even know.
What’s the biggest mistake you see people make?
[0:41:10.6] JC: It’s really not letting go of their invention or where their creative is. Thinking that, “Hey, I birthed this baby and I can take this all the way,” and just not recognizing their own limitations.
[0:41:28.4] KM: You need to keep a copy of the e-myth in your office and give it to them every time they walk out the door, because the e-myth is the entrepreneurial myth that they have to do everything, and I think every entrepreneur feels that way and has a hard time letting go of their baby. I often call Arkansas Flag & Banner my firstborn, and the very first person I hired to come and work for me, and I watched him answer the phone and talk to my customer. I thought, “Oh my gosh! I could do better. Tell him this.” I wanted to just jump down the phone with him. The more I let go, the more I realized they were better at it than I was. It’s letting go those first probably the very beginning, letting go and letting someone else do it and help you, because you can’t be everything.
[0:42:13.9] JC: You can’t be good and great at everything.
[0:42:17.2] KM: That’s what the e-myth talks about, is you can’t be in the back making pies because you’re a great pie maker, because your business will never grow past how many pies you can make. Yeah.
What’s the one simple thing we can all do to protect our self? I know what I’m doing. I’m going back and registering my name.
[0:42:35.6] JC: Simplest thing is you’ve got creative output, a copyright registration application. You can do it online. It’s cheap. It lasts a long time, If you can qualify for that copyright registration. That’s the best bang for your buck, and patenting is really — I hate to say it, but surely have to go see a patent lawyer.
[0:42:56.3] KM: It’s so complex.
[0:42:57.1] JC: It is.
[0:42:58.1] KM: Just talking to you is complex.
[0:42:59.6] JC: There’s lots of subtleties and nuances and it’s just a highly specialized field.
[0:43:05.1] KM: Your other passion is startups. You do have a great life. You talk to people with big dreams and then you do startups, and you work at the Venture Center. Let’s take a really, really quick break, and when we come back I want to talk to Joe about his mentoring that he does at the Venture Center in downtown Little Rock where you can go down and get advice from professionals like him.
Joe, I can tell you by your list of associations that you have a community involvement that you love working with startups and mentoring them. Come on dude! I got two pages of stuff you do. Let’s talk about what you’re doing right now. I think it’s the Venture Center. Did you have help start that?
[0:43:56.8] JC: I did not help start it. I got involved at a fairly early stage. Of course, they were down in Markham across from the State House Convention Center and now they’ve moved kind of around the corner and down the street on Maine Street.
[0:44:10.7] KM: Oh, really?
[0:44:11.9] JC: It’s a tremendous operation. They really are the support system for the Central Arkansas Entrepreneurial Ecosystem. I participate every Tuesday in a thing called Lift the Rock at 9:00. Basically, a local entrepreneur would be scheduled to stand up and give some help, just give their story and maybe give some advice, tell some pitfalls and successes and things of that nature. There’s a gong they ring whenever there’s been a major positive happening to somebody. It’s just a good group. I’m a mentor there. They’ve got these various classes and there’s this thing called an accelerator, a business accelerator where they basically nurture companies, they teach them certain skills and things of that nature. Then they put them in contact with professionals such as myself.
There’s a great group that are down there. I’m helping this one woman and she has got this program that basically helps people analyze the compatibility of their business.
[0:45:20.8] KM: With that? Compatible with what?
[0:45:22.7] JC: Their business systems and align their goals and their strengths and also sometimes it’s used in the context of merging with another company or something of that nature.
[0:45:33.3] KM: That’s neat.
[0:45:34.4] JC: There’s another woman I’m helping right now that she’s developing an app for some diabetes prevention type of technology.
[0:45:47.9] KM: I need to ask those people. At 9:00, you’re saying this is. You can go down there at 9:00 and you can hear another entrepreneur tell their story. Exactly what this radio show is.
[0:45:56.1] JC: Yes.
[0:45:56.1] KM: It’s at 9:00 every Tuesday, downtown Little Rock, Maine Street at the Venture Center.
[0:46:00.4] JC: Yes. There’s that. There’s also at the North Little Rock, at the Innovation Hub on Wednesdays. There’s a similar type of a program as well.
[0:46:08.6] KM: What time on Wednesdays?
[0:46:10.3] JC: 9:00.
[0:46:12.3] KM: Are they associated together?
[0:46:14.4] JC: They are not.
[0:46:15.3] KM: There’s the Venture Center in Little Rock at 9:00 on Tuesday, and then there’s the Innovative Hub —
[0:46:22.0] JC: Innovation Hub is over in North Little Rock.
[0:46:25.1] KM: At 9:00 on Wednesdays.
[0:46:26.1] JC: Yes.
[0:46:27.4] KM: I need to go down there and get some people on my show that have got some good stories. I bet you could tell me some good ones.
[0:46:32.2] JC: We’ve got a fairly healthy group of entrepreneurs in Central Arkansas, and it’s growing.
[0:46:41.3] KM: We do. We really do. You paying it forward is a wonderful thing. When did you decide you want to start paying it forward? Mine was six months ago.
[0:46:53.7] JC: I was doing this back in the 90s actually when it was for sexy to do it and I kind of hang it up after a while because, really, there wasn’t the funding. All the pieces in the puzzle were not there for a totally healthy ecosystem. Really, since — For the last five years plus, people have realized that, “Hey! It’s the small businesses that are driving our economy. They are driving our jobs.”
[0:47:20.2] KM: Thank you.
[0:47:21.0] JC: Actually, some of the powers at be, especially in the financial community, have also gotten that feeling. They’re less risk-adverse.
[0:47:32.3] KM: Thank you. That is good. In the 1990s it says you represented the Technical Enterprise Center of Arkansas, the first business incubator. There you are at 1990. You were right in there.
[0:47:40.9] JC: Yeah.
[0:47:41.6] KM: I love it. Anything you want to tell our listeners? Any words of advice?
[0:47:46.0] JC: If you’re creative out there, keep creating, keep good notes if that helps you.
[0:47:51.3] KM: Oh, interesting.
[0:47:52.1] JC: Come see me when you want to get some protection.
[0:47:53.9] KM: How do they find you?
[0:47:55.3] JC: Joe.email@example.com. I’ve got some on my website, calhounlawfirm.com. I’ve got some videos that discuss some of the ins and outs of the various intellectual property type issues.
[0:48:10.1] KM: Aren’t you something? That’s a brand new website. You just launched it a little while ago, a few weeks ago.
[0:48:13.8] JC: A few months. Yeah.
[0:48:15.0] KM: A few months ago. Yeah, and you got videos on how to. That’s great. It’s just calhounlawfirm.com?
[0:48:20.4] JC: That’s it.
[0:48:21.2] KM: I love it. Who’s our guest next week, Tim?
[0:48:23.7] TB: Our guest next week is the pastor of Joe’s church.
[0:48:28.3] JC: All right.
[0:48:28.9] KM: Do you know Father Fred Ball is coming next week?
[0:48:31.3] JC: Absolutely. Oh, yeah.
[0:48:32.1] KM: I love that.
[0:48:32.9] JC: Amen.
[0:48:34.1] KM: Amen.
Listen, every one of my guests get a cigar for birthing a business.
[0:48:39.0] JC: Excellent. Thank you.
[0:48:39.9] KM: That comes from the Humidor Room at Colonial Wine & Spirits. You’re welcome. I think you might enjoy that. Just like a lawyer smoke a cigar.
Also, if you’ve got a great entrepreneurial story and you would like to share, I’d love to hear from you. Send a brief bio and your contact info to firstname.lastname@example.org and someone will be in touch.
Finally, to our listeners, thank you for spending time with me. If you think this program has been about you, you’re right, but it’s also about me. Thank you for letting fulfill my destiny. My hope today is that you’ve heard or learned something that’s been inspiring or enlightening and that it, whatever it is, will help you up your business, your independence, or your life. I’m Kerry McCoy and I’ll see you next Friday. Until then, be brave and keep it up.
[END OF INTERVIEW]
[0:49:23.3] TB: You’ve been listening to Up in Your Business with Kerry McCoy. Want to hear today’s program again or want someone else to benefit from it? Jot this down. Next week a podcast will be available flagandbanner.com. Click the tab labeled “Radio Show”, there you’ll find today’s segments with links to resources you heard discussed on this program. Kerry’s goal: to help you live the American Dream.