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McLellan: Don’t lose what you’ve built


There’s been a lot of publicity and talk around GDPR, privacy concerns, data breaches and other risks to our businesses that are sneaking through the marketing door.

 These are getting all of the media attention, but the truth of it is, marketing has always been a weak spot in terms of an organization’s legal protections. Whether you are part of an in-house marketing department, the business owner or an agency, we are often not protecting the assets we worked so hard to produce.

 Here are some of the common mistakes we make and how to fix them before you end up in court, in a lawsuit or just out of luck.

 Document copyright and IP ownership: When a person creates something tangible, whether it’s a series of words, a logo, a piece of art or an audio or video file, that person owns the copyright to that creation. If the creator is your W-2 employee, then the organization owns the copyright. But if the creator is a freelancer, even though you contracted and paid them to create the work, technically, they still own the piece.

 Which means they can come back to you and ask for more money or prevent you from using it. In any and every contract you have with a freelancer or other outside vendor, be sure to stipulate that once you have paid them the contracted amount of money, then your organization holds the copyright to the work.

 Is it really new? You also want a guarantee of original work in your contracts with freelancers or other third-party providers. Beyond that, they need to have insurance in place in case it turns out they violated that agreement. We’ve had companies come to us in a panic because they hired someone else to create a logo, only to discover the freelancer stole it from a design site online. In one instance, the brand was three days away from a full rebrand launch, with outdoor boards, signage on their buildings, all new truck wraps, etc.  

 We had to help them negotiate with the originator of the work for the ability to license the logo. The actual designer of the work lived in a different country and had them completely over a barrel. Fortunately, the designer was empathetic, and his ask was reasonable, but this company would have had to pay whatever he demanded.

 Verify and own any vital trademarks: Every organization creates assets that are going to play a huge role in how we market the company. We may come up with a tagline or hire someone to create a new logo for our company. Or we decide to rename our organization, a product or service. Unbelievably, the URL is available, so we grab it and prepare for our launch.

 I can’t tell you how many companies find themselves in hot water at this stage. If you don’t properly trademark that name, tagline or logo, you could find yourself in a legal pickle. You must do your due diligence to see if the name, phrase or mark is actually available for use. And if it is, you need to protect your right to use it by filing for a trademark.

 Just because a URL is available does not mean there isn’t a trademark. You can start your search on your own through the U.S. Patent and Trademark Office’s trademark electronic search system (TESS). But from there, you need an attorney who specializes in intellectual property law. Fortunately, there are several excellent options here in Central Iowa.  

 All of these modern-day realities are much too important to ignore. The money it will cost you to do it properly now is insignificant to what it will cost to either litigate usage or, worse, have to start from scratch again.

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