Legal Minding: Technology changes—don’t let your business tactics lag!

By Barbara Luther, The Luther Law Firm

The Scottsdale Airpark has seen technologies come and grow, and come and go! Twenty years ago, the new technologies were far different from today’s latest and greatest. Using the same legal tactics of 10 or 20 years ago can lose you control of your intellectual properhoroty and even propel you into a seriously expensive lawsuit.

Of course, these days we strive for our websites to have high recognition by customers. The downside is massive traffic from potential copiers. And the copiers have no shame. I recently heard of “online stalkers” copying updates of an original website within days. It’s no longer enough to have the copyright warning (namely, “Copyright 2014 Owner All Rights Reserved”). You need to file for a copyright online at the U.S. Copyright Office to get coverage on the same date as you release the website changes.

The upside is that filing the copyright application before copying means that you can sue that horrible copier and demand the copier pay your attorney fees. By the way, don’t file for a copyright on paper, because your copyright application gets the data of receipt through the U.S. mail—critical days later—maybe after the copier has sprung into action.

In another situation, you used to be safe in delaying trademarking your cool name and slogan, thinking “my business is just local.” Nowadays, you can watch employees leave and use the slogan, which is less likely if you obtain the trademark certificate and always use the ® symbol. A local business with the same clever name for 18 years recently received a cease and desist letter from the clever name’s new trademark owner in California. Had our local company trademarked the name first, it could have sold the rights to California and other states for a nice chunk of cash, rather than begging the California company to leave it alone—or mounting an expensive cancellation procedure. Obtaining the trademark often costs less than a response to a cease and desist letter.

Likewise, delaying patenting can deprive you of the ownership of your new, rockin’ invention. First, you can lose the right to patent by selling before the filing of the patent application; if you missed that opportunity, let’s file a patent application on the improved version before you sell it.

Second, with the new “first-to-file” rule, if someone sees your invention (even before you sell), he can file a patent application and be first in line to receive the patent. Of course, there are new, untested laws to help you fight this copier, but fighting the copier robs you of business focus and may cost more than the usual cost of a patent alone. Don’t you need that money for marketing?

Have you heard that “80 percent of product success is due to marketing”? And using online techniques to create buzz heats up the market for your new product introduction. The goal is rapid sales success, symbolized by the hockey-stick graph (horizontal for a short period before shooting upward). But if you have not first protected your product, copiers rush in and steal “your” sales. Many large companies have superior marketing power and access to markets—and, surprise, they can turn your hockey stick graph downward in weeks. In the worst-case scenario, buyers cancel orders and leave you with a warehouse of product and a mountain of debt. For less than the cost of an online campaign, you can protect all that great marketing investment.

Protect your names and ideas now to create a sustainable business.

Barbara Luther is the founder and owner of The Luther Law Firm in Scottsdale. Luther has secured hundreds of patents for individuals and companies around the world. She is a member of the U.S. Patent Bar, and travels nationally giving seminars to aspiring business owners and entrepreneurs on IP tips and marketing strategies. Her website offers a free download of her new mini book, Barb’s Rules, to help you understand ways to protect your intellectual property. Contact Luther with any questions or to schedule a complimentary 30-minute consultation to get a specific plan and budget. More: