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eCommerce Momentum Podcast - eCommerce Momentum Podcast 26th August 2019
403 : Mark Berkowitz – Dealing with common eCommerce Intellectual Property issues
00:00:00 00:55:47

403 : Mark Berkowitz – Dealing with common eCommerce Intellectual Property issues

It’s funny in today’s fast changing world where a young guy (relative to me) is the absolute expert at his Law firm. Partners go to him for advice because the issues are new and were not planned for when the laws were written. Get some great legal advice for just the time it takes to listen from someone with a lot of experience.


Mark’s Law Firm : Amster, Rothstein & Ebenstein LLP

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Here is transcript- It is automated so it is not perfect but it does seem to get better over time.

Mark:                                    [00:00]                     It can be a lot of different things. It can be some, you know, some crazy claim. Let’s say let’s say a claim related to your product is better than a competitor’s product or that you know that your product contains certain ingredients, um, when it really doesn’t. Those are the ones that come up a lot, you know, for cosmetics and things like that. Um, you know, you say it has a certain, you know, percentage of the effective ingredient and it doesn’t, that can be false advertising. Um, a bait and switch type of a situation can be false advertising. Your advertising. One thing that has certain features, certain size and certain properties and it doesn’t really have those things.

Cool voice guy:                  [00:41]                     Welcome to the e-commerce momentum podcast where we focus on the people, the products, and the process of ecommerce selling. Today, here’s your host Steven Peterson.

Stephen:                             [00:55]                     Hey, wanted to take a second and talk about Gaye Lisby and, Garry’s, Amazon seller tribe and their daily lists that are put out, um, and incredible stories that you can read if you go out and check out. Amazing freedom.com, forward slash momentum hyphen arbitrage. I know that’s a lot to put in there. Amazing. freedom.com forward slash momentum dash Arbitron and you’re going to get 14 day free trial, no money risk, no, no challenges. You don’t want it when you’re done, you get out. But imagine getting list. I’m as grateful as I like to call it. Mailbox money. I love that term. Mailbox money. It’s where you can work from your house, buy things online, have them delivered to you and then sell them on various marketplaces. But imagine you can have somebody else do that for you. So you want to buy time, you want to control, uh, what they’re buying.

Stephen:                             [01:51]                     Well, you take these lists and you can join multiple lists if you’re interested and then you can segregate them for the merchandise you want and send them to them. They can make purchases for you on your behalf. Have it delivered to you or delivered to them for prep. Boom, sent into these marketplaces and you could sell. How about that? Wouldn’t that be awesome? I spoke at their conference and there were so many million dollar sellers just using online arbitrage. It’s still available. And again, 14 days. The only way you’re going to get 14 day free trial. So if you come through my link, um, it is an affiliate link. Uh, they do pay me. So I don’t want to mislead you in any way. Um, I would appreciate it, but I’d like to see you try the 14 days. I’ve had so many people that have joined, have so much success.

Stephen:                             [02:34]                     It’s very exciting to me and you know, quite humbling to me, um, that they trust me to recommend this group and I 100% recommend this group. I’ve seen the results. These are great people that will also teach you to fish. This isn’t just a, hey, here’s the list. You’re on your own. No, this is, hey, here’s why that wasn’t a good deal. Or here, hey, there’s another opportunity and you get to join their groups. And it’s just a phenomenal group of people. Um, just great, uh, leaders in that group and these lists are phenomenal. So again, it’s amazing. freedom.com, forward slash momentum, how you Finn arbitrage amazing freedom.com, forward slash momentum hyphen arbitrage. Use that. Get two weeks free. Try it. You don’t like it, drop out, but give it a shot if you want to add that to your business. Welcome back to the e-commerce moment and podcast.

Stephen:                             [03:23]                     This is episode four Oh three, Mark Berkowitz, a very cool guy. Um, he made, it’s funny afterwards I said it, uh, he made talking about law fun. I mean really it’s so interesting when you start thinking about, because if you’re selling, right, if you’re developing products and selling them private label where even if you’re selling third party products, um, I’m not sure you, me, Steve have thought about a lot of these things, but now when you sit back, if you have your own products, wait til somebody comes on your listing, then you’re going to be thinking about a lot of these things, right? And so, cause that’s happened to us and it’s like, Whoa, what do we do? You know, and then all of a sudden you now become the aggressive one. You’re like, wow, I’m going to hunt him down and, and pulled him off.

Stephen:                             [04:03]                     You know? Well that when that happens to you, what do you feel like? So it’s really interesting. Um, one of the real cool takeaways was that out of a hundred letters, majority of them don’t have any teeth. So those cease and desist letters you get might not have a lot of teeth, but you’re gonna have to pay to find that out. So, you know, I think there’s some, some good advice here. Um, do your work up front, do your research and be careful how far you go. Your risk meters should be guiding you and be real cautious because there are some, there’s some things that could happen to you and you want to be very, very cautious about. You want to build a nice longterm business. Let’s get into the podcast. Hey, welcome back to the e-commerce invent a podcast. We’re going to talk some real interesting stuff today, not however it is critical to our business and my guest would argue it is interesting because he has to think about it full time. Welcome Marc Berkowitz. Welcome mark. Thank you. You would find IP and patent law. Interesting, correct.

Mark:                                    [05:07]                     Definitely. Particularly now with the growth of commerce and the Internet, you know, we’re seeing issues that we never imagined 10 years ago. Um, so yeah, it’s really interesting time to be doing this.

Stephen:                             [05:17]                     What would most of it, that’s interesting. So would most of it, 10 plus years ago have been, I mean, how would that have happened? Right. So let’s assume the Internet wasn’t there, wasn’t that long ago, where would most of your work been concentrated?

Mark:                                    [05:30]                     I think it was, you know, at least for me it was a lot of it was consumer electronics. Um, things like that. You know, the way issues would come up would be, you know, you, you know, somebody would basically walk into a store or see a product, you know, in a brick and mortar store and say, oh, that, that infringes my pattern. Or you know, that your friends, you might trademark. Um, and they’d go, you know, try to track down where it’s coming from. You know, it’s up to the seller or go back up the chain eventually, you know, bring a lawsuit. And they had to, um, today that’s all different. You know, with ecommerce, with Amazon, you know, results, you know, you need to take action is immediate. Um, you can get results right away by going through Amazon, picking somebody off, um, everything sort of happening in real time.

Stephen:                             [06:14]                     Yeah, it’s interesting. And there are like, I, cause I’ve dealt with the um, oh the photo company, I forget their name, I can’t think of their name, but they, where they scroll Tro, uh, scraped the Internet looking for photos that they own and in a send you a bill and you pay it cause there’s no way around it. I forget the name of that company. They’re massive, but that didn’t exist. And so they have an essence robots. Right. These, these algorithms is out there searching for that stuff. Have you seen that in the, I guess you have, I guess on Amazon you would see that where people can be searching or have, uh, programs out there searching for things related to their business, correct.

Mark:                                    [06:51]                     Yeah, absolutely. I mean for things like images, you have their progress in their programs. I can do that for trademarks. The same thing. There’s, you know, there’s software, there’s, you know, people sitting there searching away, looking for potential infringements. Um, and when they see something, you know, you act right away, you fill out a form on Amazon, whether it’s their regular freshman forum through brand registry and you get, you know, get action right away.

Stephen:                             [07:14]                     Well, I’ve heard some, you know, private labeled teachers, you know, kind of skirt those issues in today’s Day and age, how these big companies, these real big ones with a lot to lose, they have staff that works on this stuff. Correct?

Mark:                                    [07:28]                     Sure. Some companies do it themselves. Some companies retain, you know, third party brand protection companies or you’re doing it in, you know, sort of a combination of the two. Um, yeah. And they’re, they’re, some of them can be very aggressive. Um, you know, sometimes right? Sometimes wrong in going after private label sellers going after, you know, resellers of branded goods. Um, you know, especially with trademark oil, you have an obligation to protect your rights and you know, you have to, you have to move quickly.

Stephen:                             [07:59]                     And in today’s Day and age, I think it’s really important. So let me go through these. This is a kind of the practice that you guys have them. And I think this is Steve’s opinion that most, that these are the ones that are related to e-commerce because that’s what we are, right? Where your commerce, ours, uh, counter counterfeiting, anti counterfeiting, copyright, false advertising. I don’t think people think about that, but when you make some crazy claims, that stuff can come back to bite you. Um, IP Litigation, um, that would be a good one. Uh, patents obviously. Um, uh, I don’t know what trade dresses I’m interested in. Uh, I mentioned trade secret in our pre-call and you said that really doesn’t come up much, but I want to think about that one for a second. And then trademark. And I, I also would say unfair competition, right? Cause if too, if me and you collude, right? I don’t know if that’s the correct term and it’s a term I use in my old accounting terms. Well, if we get together to set prices, um, that’s unfair, right? I mean, if a whole bunch of us, uh, do those kinds of things, those are our examples of unfair competition. So let’s, let’s peel them back one by one. If you don’t mind. I’m going to ask you a couple. So counterfeiting, have you seen counterfeiting issues in, in ecommerce or Amazon?

Mark:                                    [09:09]                     Absolutely. So there’s counterfeits that are his real counterfeits, you know, after straight knockoffs, you know, the guy who was

Stephen:                             [09:17]                     purses, you know, or the, that Gotzsche w uh, purses down on a, I dunno [inaudible] yeah, right. That’s an example.

Mark:                                    [09:25]                     But yeah, it’s even gotten bigger than that, hasn’t it? It has, it has. I mean, I think, you know, you have the, the, you know, what everybody thinks of as counter, meaning the straight knock off, they copy every aspect. Um, and there’s things in between where maybe they’re putting a name on the outer box, maybe they’re selling something on a particular listing, um, and suggesting that it’s, you know, of that brands and then fulfilling it with a generic product that could potentially be counterfeiting. Um, so yeah, it comes in a bunch of different flavors and you see a lot of it, you know, especially on Amazon real counterfeits, you’ll see a lot of um, incorrect counterfeiting allegations. People take advantage. Yeah.

Stephen:                             [10:04]                     Yeah, that’s a, that’s a real issue too. So, well, let’s talk about the real counterfeit here. So I’m selling a product, it’s my product, it’s Steve’s water bottle. It’s beautiful. And somebody comes on my listing and they’re clearly not selling my version. They’re selling another one, but it’s my packaging cause it’s just a well established brand. What’s my recourse? What’s, what’s the, what’s the, where’s the place I start?

Mark:                                    [10:25]                     Well, I think that the best place to start, you know, is to write to them and say what you’re selling is, is counter fit. Um, you need to remove it right away and tell us where you’re getting it from.

Stephen:                             [10:35]                     And so that term, that’s a pretty strong term. That’s a fair accusation. If I can prove that I’m the only one, I make it, I bring it in here. It’s mine. It’s my packaging. Everything else has to be counterfeited. Correct, yes. Okay. What if they bought it, you know, from a friend. So somebody gifted it to you, Marc Berkowitz, and you got it as a gift and then you put it at a yard sale and then all of a sudden it went out there on the street and then some Amazon seller comes along, scans that baby and says, holy smokes, he’s selling it for a quarter. I could sell it for 30 bucks. I put it up. Am I still counted? Are you still counterfeiting? If that happens,

Mark:                                    [11:10]                     I mean, if the product itself is really counterfeit, um, then you’re responsible whether you knew it was counterfeit or didn’t know it was counter fit, um, you want a lap.

Stephen:                             [11:19]                     But in my example, they’re selling a real product. It’s just that they don’t have rights to sell it. That’s a different kind of dispute. Correct.

Mark:                                    [11:25]                     That’s, that’s different dispute. Yes. All right. Because that happens, right? It happens a lot. Yeah. And people say though, Mark, you’re counterfeiting, but I’m not, I think that most, I think there’s some gray here. I think the most, or most attorneys would say that that’s not really a counterfeit. I think that they would say you’re authorized or something like that. Yeah, yeah, yeah,

Stephen:                             [11:43]                     yeah, yeah. Yeah. So that’s a, that’s a pretty bold statement to use the word counterfeit. Is that something that you steer your clients away from that term? Because it is so,

Mark:                                    [11:53]                     yes. I think that, you know, we tend to, most people are more comfortable using, you know, using counterfeit when it’s really a real knock off what we think of as the fake Gucci Bag. I think cause it’s, you know, the word counterfeiting really has some very serious repercussions behind it. Counterfeiting could even be, you know, criminal. So I think that, I think that most attorneys would rather use that term only when it’s really necessary.

Stephen:                             [12:16]                     Okay. Okay. So, so probably it sounds like we should steer clear of that. Okay. Then we come down to copyright. Now Copyright, walk me through an example of what copyright would be.

Mark:                                    [12:28]                     So works of authorship. A, what you think about the creative works. Uh, you compose a symphony. You, uh, creating, draw a painting, you write it, write a novel. Those are all works of copyright, I think for e-commerce sellers or things that, you know, they come up are your photographs that you take for your, for your product listing and your, your, your ad copy, right?

Stephen:                             [12:54]                     It, well, that’s a good point that the photograph. So if, if you’re using my photograph in your listing, right, you’re taking, because let’s face it, one of the biggest, uh, issues out there, not, not issues. One of the biggest things that happens is everybody, there are companies that have software that scrape Amazon and then they drop ship on other websites on Ebay for example. Right? But they’re using my photo because they’re scraping Amazon and Amazon’s allowing them to scrape it and bring it off. Um, who’s at fault there?

Mark:                                    [13:24]                     It depends. So when w when a brand, um, puts up a listing on Amazon, right? And they put up their own, their own photographs, um, they’re giving Amazon a right to use those photos, use those photographs and for third parties to list against that, that listing, which contains those photographs. So in that case, um, it wouldn’t be an infringement issue where the, where the issues would come up for a seller is if you grab the brand’s listing, let’s say the ranch brands, photographs from their website and then create your own Amazon listing using those photographs. That could be an issue.

Stephen:                             [13:57]                     Well also if they take and scrape that photo and then put it on another website like an Ebay or whatever, same thing. So that’s an issue is does Amazon have any culpability because they’re allowing that to happen? I mean, shouldn’t they protect my image? They allow these people to have access to their API. Does that give them some, uh, some culpability?

Mark:                                    [14:18]                     Well, I think that Amazon will respond to complaints of copyright infringement. Um, you know, if you follow a report, you know, report with them saying that your, that’s your photograph, Amazon, we’ll take it, we’ll take it down. That creates a safe harbor for them.

Stephen:                             [14:33]                     Okay. So as long as they’re doing that, then they’re protected by that.

Mark:                                    [14:36]                     Right. If somebody reports to them and Amazon doesn’t do anything and that’s, and it could be reliable. Yes.

Stephen:                             [14:41]                     So, um, if I allow this to happen, I knowingly allowed this to happen where I know that they’re selling my product over on Ebay. And you know, let’s say I’m selling it for a, a bucks on Amazon, on Ebay, they’re selling it for $150, right? Free Shipping, because they’re going to take advantage of prime, just like all dropshippers do, right? Yeah. If I allow that to happen over time, is that almost acceptance? And so I would have a tough time enforcing it when I choose to.

Mark:                                    [15:09]                     Probably not. Okay. There are some legal defenses that relate to delay, but they are in this context, they would, there’d be difficult to show.

Stephen:                             [15:19]                     Okay. All right. So I would have rights as long as I found it. And I would say, Hey, this has to stop. Boom. And if they didn’t, then I have some legal rights.

Mark:                                    [15:27]                     Yeah. It’s, it’s always better to move quickly. There’s no question if nothing, by letting it go on longer and longer, you’re just creating more, more trouble for yourself.

Stephen:                             [15:35]                     So this was a tough one. Understand as a man, boastful exaggeration, never heard that in a man’s world to ever said, Steve. Right? Um, what is false advertising as it relates to e-commerce?

Mark:                                    [15:50]                     It can be a lot of different things. It can be some, you know, some crazy claim, let’s say, let’s say a claim that lead to your product is better than a competitor’s product or that you know that your product contains certain ingredients when it really doesn’t. Those are the ones that come up a lot, you know, for cosmetics and things like that. Um, you know, you say it has a certain, you know, a percentage of the effective ingredients and it doesn’t, that can be false advertising. Um, a bait and switch type of a situation can be false advertising. Your advertising, one thing that has certain features, certain size and certain properties and it doesn’t really have those things.

Stephen:                             [16:29]                     So, so I, I would think like CBD right now would be one of those places. That’s probably a, a big flag. Right? Am I, you’re laughing so that’s,

Mark:                                    [16:39]                     I almost gave that example.

Stephen:                             [16:40]                     No, say we’re both on the same page. Right. It just seems funny because, you know, now I see it, they advertise it for pets and then people are taking in, but then they claim everything. I mean, they’re, I don’t know about where you, while you’re in New York. So there’s probably everywhere. There’s a CBD shop opening up on every corner in our town now. I mean, just like breweries, right? They’re just everywhere. And they’ve got, I never knew they made, you know, Graham cracker CBDS. I mean, they have everything and they make a lot of claims on there. It’s going to, it’s going to cure everything that’s ever able to mark. Um, problems.

Mark:                                    [17:15]                     It could be yes. Could be likely. Yes. Likely. Yes.

Stephen:                             [17:19]                     Likely. It’s because it’s so new. It’s hard to prove. What about though that I, I, yeah, I think about trade shows. I went to, I went to Atlanta Martin, there was a great company selling CBD stuff and they’re like, Steve, we’ll let you sell it on Amazon. Go right ahead. Right. You just gotta be careful with your wording because they’re real picky on that. Am I, and if I sell it and then all of a sudden they come on, I’m exposing our business there. Correct?

Mark:                                    [17:42]                     Yes. Yes sir. Exposing Your Business, you’re supposing yourself too. One interesting thing is that under trademark law you can be personally liable, right? So you can’t really hide behind, you know, a corporation or some other legal entity. So you have to be careful.

Stephen:                             [17:55]                     But isn’t the manufacturer responsible? Why am I responsible?

Mark:                                    [17:59]                     If you’re selling it, you know you’re putting yourself in front of, yeah, I’m out there.

Stephen:                             [18:03]                     When they sue, they sue everybody, correct? Yes. Yeah. And so you’re in whether you’re in or not, and even to get out, it’s expensive. You guys are not cheap anymore. What happened? What happened? I don’t think so either. And it’s going higher. You want to stay at a litigation, you want to stay out of it. Okay, so IP litigation and an international protection. I think that’s kind of the same thing. We want one us and then the others internationally. So let’s, let’s talk about that because I think that that’s really a big deal right now. Would you agree?

Mark:                                    [18:36]                     Yeah, I think, I think it’s, it’s changed a lot, at least since the time I started practicing. Um, you know, I think that you see the, the growth of Amazon and its enforcement system, I think because has changed things substantially. And to start to say in the beginning, you know, in the old days you would, you know, try to track down where a product was coming from and you’d bring a lawsuit and it takes you, you know, year and a half, two years of litigation and hundreds and hundreds of thousands of dollars to, to get to a results. Um, with Amazon, you know, or Ebay. Um, you can get a result in a day or two. You can get rid of the product and that way. So you’re seeing a lot more of that. Um,

Stephen:                             [19:14]                     but don’t I have risk if I get rid of your product? If I make a claim and then we take down your product and it turns out my claim is not correct. That’s a risk too. Correct?

Mark:                                    [19:24]                     Sure. It’s possible somebody could come after you for filing a false claim, but let’s just, let’s assume it’s a, it’s a valid claim. Somebody really is infringing your patent or your trademark. Um, the ability to get these results so fast, you know, through Amazon, um, is, is really just been a game changer.

Stephen:                             [19:42]                     So this has made your business, I don’t know if the right term is easier. It just, uh, because I’m sure it got way more complicated, right? I mean, I’m sure the law expanded, right? Cause it wasn’t written right back in the day. They didn’t think about the Internet back when they wrote these laws. Right. So that part gets harder. But this, some of it just gets easier because of, like you say, I can get a reaction almost within a day or day and a half. Does Amazon have a large legal department? I’m guessing.

Mark:                                    [20:09]                     And so from, from my understanding, it’s not nearly as large as it needs to be. I think a lot of these, lot of these types of complaints are handled now. They’re either outsourced or they’re being handled through computer systems. Um, and there’s, there’s not enough human oversight there. So

Stephen:                             [20:24]                     That’s interesting. Is that how, I mean, in a, I guess I’m, you know, I’m guessing I, I’m asking your opinion on this, but is that part of the problem that they have in Europe now? Because they, they, you know, they’re just not, apparently Europe is much more aggressive on enforcing these things. Right? It’s what it seems like. Um, what I’ve read,

Mark:                                    [20:43]                     um, you know, I don’t know. I can’t say if that’s the case. I mean, generally, you know, litigation is very different in Europe. The European, you know, the companies are a lot less litigious. And I’m in Europe in general, it’s a, it’s a loser pays rule. So people think a lot deeper before entering into litigation.

Stephen:                             [21:01]                     So, Whoa, now you’re making me pause. Looser pay. So, uh, you’ve got to be, we’re here, you know, um, I always tell this story, we used to settle so many, um, nuisance lawsuits and I forget what we used to call it, but it was always like five grand to make it go away. You know, it was just always like, here’s your five grand, go stop. So us. Right. Cause it was a waste of time there. So if I bring a lawsuit, I have potential liability.

Mark:                                    [21:29]                     Yes. If you, if you lose, then you pay the other side’s attorney’s fees, which is significant.

Stephen:                             [21:34]                     Is that historical for them? I mean, is that the way it’s always been? Kind of. Yes. And why are we different? March. Tell us your real opinion. Cause the guys like you to come on fast. Sorry.

Mark:                                    [21:45]                     No idea. Yeah, it’s, everybody always has the comments. I’ve heard it for many, many judges. They say we need the European system.

Stephen:                             [21:51]                     Really? You think there was any chance, I mean, it’s kind of silly to discuss, but I mean, do you think there’s any chance that this stuff could, do you see any trends to suggest that this stuff has to, because it’s crazy, right? I mean even you guys must say it’s crazy.

Mark:                                    [22:04]                     Yeah. Yeah. No, it’s really crazy. What’s going on now.

Stephen:                             [22:08]                     All right, we’re going to keep moving. Um, here’s a bunch more. Let’s talk patents. Um, and I’m not sure I understand what is patentable.

Mark:                                    [22:17]                     Sure. Um, so I think, I think when you’re talking patents, you need to really start with, there’s really two different kinds of patents that are pretty different and a lot of people don’t realize that, um, there are utility patents that cover how things work and there are design patents that cover how things look. You going to mental features. Um, it’s important to keep those, uh, separate and you understand when you need to go for which one. So starting with utility patents, um, again, these cover how things work. Um, let’s say you have a pen, it would, you know, it would cover the little ball at the end, a tube filled with ink and some sort of body. So it wouldn’t matter what it looked like, it would just, the function would matter. Um, and to decide whether it’s patentable or not, whether you could obtain a patent, you would have a patent attorney do what’s called a search clear a of some sort of right to use or clearance search to see if we’ll see what’s been done before. Um, and whether that particular item has already been invented, um, and then make a decision whether it would be patentable, um, whether the exact item has been described before or whether it would be obvious over what was previously described and known to the public.

Stephen:                             [23:34]                     And so that obvious is where it really gets right. I mean, cause that like you’re saying, all right, cause I’m sure people take that pen and they say, Hey, I’m not gonna use a blue ball. I’m going to use a red ball mark. This is going to be big. I mean, we’re going to make it big here. That probably wouldn’t pass the muster. Right. [4:00] AM coming through for patent. Right. That’s already been, it’s pretty much the same. Just the color change wouldn’t be enough. Most likely. Okay. Color Change. No. Okay. So a color change wouldn’t be, what’s another most likely thing that people would, uh, you know, uh, is it around stop sign versus a octagon stop sign? I mean, it would that be

Mark:                                    [24:16]                     probably not, you know, shaped, although, and maybe had a stop sign that, you know, automatically detects, you know, approaching vehicles. And, you know, blinks three times and or, or a stop sign that’s, you know, solar powered and has some unique, you know, battery in it, something like that

Stephen:                             [24:33]                     that could, might make past semester. But if it blinks three times [inaudible] mind blanks four times mark, I’m better. That would probably not be patentable because it, it’s kind of the same. Is that, is that a distinction that’s reasonable? It could be. Okay. Really dependence. Is it subjective? I mean, is it depend on the interpreter, whoever the attorney that, you know, wherever the patent office is, is that subjective?

Mark:                                    [24:58]                     There is an element of subject [inaudible] objective is to it. Um, you know, all these paths go, there’s patent examiners that review them. Um, and yeah, they, they can’t help but you know, referring, you know, looking at their own, this point around discretion, right. Is it will be obvious to them.

Stephen:                             [25:15]                     Can you go back if the it can you challenge those things? I mean, if, if you just see, it’s obvious that it’s because it’s brother-in-law has a patent. I mean they just went through, obviously, maybe that’s a bad example, but I mean they miss something. Can you challenge that as an attorney?

Mark:                                    [25:27]                     Sure. So the patent process, especially with utility patent process, um, it usually takes quite a while and there’s a lot of back and forth between the attorney and the examiner. Um, there’s an appeal process. Um, yeah, you have lots of different avenues for challenging the examiner and trying to prove that your, your item really is something new.

Stephen:                             [25:48]                     Do you see that a lot?

Mark:                                    [25:51]                     Yes. I mean, in practice, most, most of the time there’s a lot of back and forth,

Stephen:                             [25:56]                     but I met challenges. Do you see a lot of both sides, right? Cause I’m sure you’re defending and then you’re also the offense, right? You’re going after him. Hmm. Interesting. Okay. Um, let’s talk, tell me what trade dress is. I’m not certain I understand that.

Mark:                                    [26:12]                     Sure. So it’s sort of an offshoot of trademark law if you have a very, very unique, um, I don’t, uh, that when you look at it, you automatically connected with, um, a particular source of products or particular brand or something like that. Um, so thinking of a good example, let’s say what I like is let’s say the coke bottle, right? So you look at it, if I took the label off of a coke bottle, right, and I put it in front of you, you’d probably look at it and you say coke, right?

Stephen:                             [26:45]                     [inaudible] oh, 100%. Especially if it was the all green bottles for sure. I mean, that’s even easier. Yeah.

Mark:                                    [26:49]                     So the, the shape of that bottle, right. And all the different facets to it, um, would be trade dress. You know, one of the ones we think of the, the bottle, the, the Lima Syrup. Yeah. The shape. That’s classic trade dress. Um, it’s practice in practice. It’s kind of, it’s tough to establish because it has to be something really strong.

Stephen:                             [27:10]                     And today’s Day and age, that’s gotta be even harder because of the millions of products out there. Right. I mean, it must really make it hard. Is there anybody recently that’s been able to create one of those things? Has there, can you think of an example? Recently [inaudible]

Mark:                                    [27:23]                     um, I believe like it, the, uh, like the swell bottles, they were able to get some trade dress protection. Um, I don’t know whether they’re held up in legal challenges like we’ll leave that they were able to get registrations for them.

Stephen:                             [27:35]                     Well, that, that makes an interesting point and I know we’re going to get the trademark next that just the fact that they made it through the first round and they got that trade dress protection doesn’t mean it’s going to stand right. It, that means it can be challenged, but they could send some nasty threatening letters that would scare away most sellers because of that. Correct?

Mark:                                    [27:54]                     Absolutely. Absolutely.

Stephen:                             [27:55]                     And do you see a lot of that? I mean, is that one of those things that cause it, you know, whenever I get one of those things, I’m always like, Yep, we’re done. I’m not, I’m not fighting anything. I’m out. You know what I mean? I don’t want to, you know, um, do most people or are you starting to see people push back and say, hey, wait a second. That’s not fair.

Mark:                                    [28:12]                     It just depends on the situation right now. I’ll look at it and you know, we’ll make a decision as to how strong it is and what the clients, you know, tolerance is for risk. And then you decide, you know, whether to push back. I mean, I, I think overall, you know, most of these types of letters are don’t have, you know, much behind them. Somebody tried to bully somebody else,

Stephen:                             [28:34]                     they’re pretty scary. So, and we’re going to talk about that, what to do when you get these letters, because when you read them, I mean, it’s filled with stuff. I don’t understand. I’m not that smart. And I, I’m sure they’re just standard paragraphs. They just drop in that say nothing. They talk to themselves. Right. And they just put it in there and it makes it look bigger and meter and scarier. Um, and so I guess we’ll, we’ll talk about that in a minute. Alright. Let’s do trademark. Right. And that is that, that’s an interesting one, especially today because man, I try to, you know, I’m always looking at, um, you know, domains. I’m a domain buyer and I’m always looking for a good domain. Insurers as soon as I find one, then I go out and search for a trading market. Sure enough is always there. A lot of them are inactive, but they’re still there. So can you talk us, talk to us about that,

Mark:                                    [29:16]                     right. So trademark is again, anything that can do, you know, source of the goods. So it can be a name, it can be a combination of colors, it could really be anything that you look at it and you say, okay, um, that’s made by a particular company that’s made by Apple. That’s like, that’s Nike. Um, and I think most people that are starting a business or they’re starting to sell on Amazon private labeling, I think trademark is sort the first exposure to intellectual property that they have. Um, that’s the first thing they need. They need a name for their brand. And um, you know, so some of the pitfalls that we see is people just not doing a proper search before they start using a name. It just pick a name that they like and they run with it.

Stephen:                             [29:56]                     So be dropping that name and trade marquee as not good enough.

Mark:                                    [30:00]                     No. So that, that might tell you whether there’s an exact hit or exact in the trademark database where if somebody already registered it, but what about all the different variations of a name you could have based on, you know, sight, sound, meaning all those things have to be considered and only a proper search is going to find those. And there’s more, there’s more, you know, to the world besides just what’s in the trademark database. There’s also something other people could have rights to a trademark. Even if they didn’t register it, they kept what’s called common law rights.

Stephen:                             [30:32]                     Well, what’s the risk? So let’s say I did my trademark UI and I went through and I didn’t find in a my goal, I’m a good to go and I go and I hit a home run. What’s the risk?

Mark:                                    [30:44]                     The risk is that you’re going to have to pull your products from the shelves and or from wherever you put them and you can have to pay damages to somebody

Stephen:                             [30:51]                     and damages, uh, gets scary, right? Because it’s their loss business in addition to your main business. Am I correct when I say that?

Mark:                                    [31:01]                     You have to pick one. So it’s either their, their lost profit, their lost profits or damage to their mark or your profits.

Stephen:                             [31:09]                     Oh really? And I’m assuming they always picked a higher one, don’t you? You look, of course. Yeah.

Mark:                                    [31:16]                     But, but the, the big issue is really having to rebrand yourself, right? You, what have you spent a fortune on, on product packaging and how all the products ready, um, you know, and now you can’t sell any of it. It’s all gonna go in the garbage. That’s usually the bigger issue.

Stephen:                             [31:29]                     Well, uh, I think, um, well then they sell it third part. That’s how you find this stuff at auctions. I mean I’ve been, no, I, it’s true story. I went to an auction and there was so much Amazon, third party private label stuff for sale that went for, I use the description of the meat clause. I paid, what did I pay for me clause, uh, 28 cents a pack and the auctioneer takes a third. So that poor guy who got those meet clause, you know, got 20 cents a pack, you know, who knows what he did. But it’s an item that, you know, uh, that people, that’s how that stuff happens. Correct?

Mark:                                    [32:05]                     Yes. But I can tell you that in most cases, you know, when a brand catches you, um, infringing that they’re not gonna let you sell it at auction. They’re gonna want you to, to destroy it.

Stephen:                             [32:13]                     Yeah. But that’s a, that’s all great. Yeah. Of course. Destroy. Yeah. I destroyed it. Yeah. Right. But there’s, again, you’re exposing yourself if you don’t,

Mark:                                    [32:22]                     if you don’t abide by the, what you’ve agreed to destroy it, you’re putting yourself at risk.

Stephen:                             [32:27]                     How strong are, are you seeing these things enforced now? I mean, or is there, uh, is it getting, uh, are are companies getting more aggressive brands getting more aggressive?

Mark:                                    [32:36]                     Definitely. Definitely.

Stephen:                             [32:38]                     And why is that?

Mark:                                    [32:40]                     I think that pretty much every brand sees where things are going. They’re seeing that more and more sales are being done over the internet, particularly on Amazon. Um, and they just want to be able to control those channels.

Stephen:                             [32:53]                     Well, their, their retailers are closing, right? All the retail outlet. I want to say all a lot of the retail stores are closing. And so they are saying, if we don’t control this, we have, we’re going to be out of business

Mark:                                    [33:04]                     essentially. I mean you think today, I believe more than 50% of every dollar spent online is spent on through Amazon. That alone is just, you know, it’s, it’s a gorilla. So if you can control that channel and um, you know, you’re controlling a big portion of your sales.

Stephen:                             [33:20]                     Well, the last one that’s on the list is unfair. And, um, I’m going to give people, you go to a r e law.com a r e law.com. That’s the law firm, um, where mark works. Amster Ross, Ross, Dean and Eben Steen. Got that right. Um, but it’s, are law.com and then a forward slash practice. Uh, you can see the areas they specialize and they describe these a heck of a lot better than I do. I’m just trying to make them understandable for myself. Unfair competition. Tell me how that, what you’ve seen out there in the, uh, e-commerce world with unfair competition

Mark:                                    [33:54]                     aren’t. Fair competition really covers a lot of things, including a lot of the things that we’ve covered today. Covers trademark, traditional trademark infringement, false advertising, the bait and switch type of, uh, tactics. Um, uh, it’s the, uh, those are where it really, where it comes up. Um,

Speaker 4:                           [34:14]                     it,

Mark:                                    [34:15]                     it really, it can be almost any sort of deceptive acts by one business or one competitor against another. Um, that’s, you know, causing harm to you. You know, tr, I, I, you know, one thing that pops up and you think about all the black hat tactics that take place on Amazon. Yes. Whether it’s overseas or, or here. Um, yeah, there’s a lot of people, um, trying to, you know, basically steal your, your name on Amazon, steal your, you know, uh, Ben, you know, the route review, manipulation. Um, we’ve had all kinds of weird things where, you know, let’s say a competitor would buy a whole bunch of products, you know, buy a hundred products, uh, remove a particular important component from them and then return them to Amazon so they get resolved to unsuspecting buyers who that leave bad reviews. Are you kidding? There’s all kinds of, you know, the black hat tactics really, that those would be, you know, unfair competition, um, things that you never imagined before.

Stephen:                             [35:10]                     I never even heard that one before. That’s a new one for me that people do that kind of thing. That’s crazy to me, aren’t they? I mean, I guess they obviously don’t care. They don’t have ethics and morals, but at some point in today’s day and age, especially with the Internet, this stuff you can be tracked. They’re finding these people, I’m assuming they’re enforcing these, uh, these, uh, these issues when it comes up. It seems like Amazon is doing a better job as best as they can, um, to try to deal with it.

Mark:                                    [35:37]                     It is, you know. Right. Well, we have a good case that we presented to Amazon. They usually do take action, um, and some sort of enforcement against the, these people. It, you’d be surprised that sometimes it’s not so easy to figure out who’s really behind it. Um, when there’s a bunch of competitors, um, you know, sometimes people will hide behind, you know, post office address is and you know, they get addresses and it’s, it’s not always so easy to track them down.

Stephen:                             [36:00]                     Have you been surprised by any of them? I mean, you know, without giving away names, I mean, but have you found, well, let me ask this, have you found a brand doing that to a real legitimate third party seller?

Mark:                                    [36:13]                     I found that, you know, we found brands and you know, mostly other Amazon type of Amazon based businesses. I haven’t set, you know, it hasn’t been like a fortune 500 company doing things like that.

Stephen:                             [36:23]                     Okay. Right. And you would think that they would have enough controls in place to prevent that kind of stuff. But I guess, you know, people get in a Wacko, they know they’re going to lose their job. I imagine, you know, there were some people at some of these large chains that went out of business that are probably doing anything they can to hold their jobs. So you never know, I guess.

Mark:                                    [36:41]                     Yeah. Even even within some larger companies, you see somebody that’s been tasked with doing, you know, the ecommerce side and the brand enforcement. And I think that somehow they, sometimes they do some of these tactics, you know, trying to get their numbers up or things like that. Um, and the company as a whole maybe not, doesn’t always realize what’s going on.

Stephen:                             [36:58]                     One of the ones that I see, because I’ve gotten some of these letters are those nasty letters that say, you know, um, you, you are selling a counterfeit item or you have no rights to sell my product. Steve, you know, uh, you’d be a cease and desist or else I’m coming after your kids. Um, how, how, how tooth lis or tooth, how to Thi are those things, are they strong? I guess. I mean, I, you’re gonna say it depends on, of course the qualify it. Right. But I mean, what about all right, well let me ask it this way. Let me say this, me sending out those letters, I’ve got to be cautious. Correct. Cause I see people advising people, send them that letter immediately tell them to get off your brand. You’ve got to be careful what your wording is. Correct.

Mark:                                    [37:39]                     Yeah, that would be my advice is you should word it carefully. Just you just start at, you know, not everybody, not everybody understands, you know, what they’re doing and whether what they’re doing is right or wrong. So sometimes a educational type of letter goes a long way and you know, less time to explain to somebody that you know what they’re doing isn’t right. And they’ll stop. They’ll, you’ll get an email right back from them saying, oh, I didn’t know. I’ll take it down. No problem. But there are those more diverse areas, actors that they more persuading.

Stephen:                             [38:07]                     I, I, I tell this story. Um, I remember getting a lawyer letter for seven cds and it was music. It was an old person, music I don’t even know. And they were used and they forced me to take them down and I actually talked to the attorney and he’s like, you know, I represent these clients and these are names you would know, but they’re all, well let me say this. Your grandparents would know mark. Um, those. But I mean it was, it was serious enough and it was like, Yep. But he was very respectful. He’s like, Yep, take them down. No problem. We’ll find. And I mean I had no rights. I mean I get it, that part I get, but he was reasonable and he was easy to work with. Uh, lots of times you get these just people spouting out this negative stuff and they’re a little aggressive. What do you do in that case?

Mark:                                    [38:51]                     Well, I think when you get one of these letters, if you don’t know enough about the law and don’t really understand what the letter says, you know, please consult with an attorney or somebody that does know because it’s very possible that you are breaking Yap. We just don’t know. You don’t know until you know, you don’t know how to, how to respond to it. When you get somebody that is a noxious or that’s making crazy demands. Yeah. The best bet is to let an attorney deal with them and from our, you know, we know what you can say. Can’t say

Stephen:                             [39:21]                     can’t ya? You can put, I bet you, yeah. Let me ask that. Out of 10 out of 10 letters, you see how many of them are legit and you have to tell your client, hey, stop selling that.

Mark:                                    [39:34]                     Uh, I would say a smaller percentage.

Stephen:                             [39:36]                     Wait, wait, so you’re saying out of 10, right? I’m going to say out of a 10, let’s go to a hundred. You got, you saw a hundred letters where people got these letters. They were sent to me and you know, my nephew and all the rest of us, we got these letters. What percentage of them would you say are, have no teeth and or none a lot. And they’re not legit.

Mark:                                    [39:56]                     I would say a majority. Really. The, I would say the, you know, if you want, look, the answer is always, if you want zero risk, stop selling the product and comply with their demands. Um, but you know, everybody has different risk level and you do your research and you advise the client, um, explain what can happen, what can happen. And

Stephen:                             [40:17]                     so majority of them are not legit. Majority of them, you don’t have to stop is what you just said. Correct. And you’re not giving advice and you’re not going to hold anybody. I mean,

Mark:                                    [40:26]                     no, no, I think, I think hers, everybody’s, everybody’s situation is different. Um, there’s a, there’s a lot of letters out there that really don’t have any, any teeth to them.

Stephen:                             [40:35]                     Okay. Okay. I’ve heard this phrase, the first cellar doctrine per sale doctrine. Right. That’s my, I got a shirt, I whipped that shirt out, take pictures, a selfie and send it to the guy with a smile. Is there teeth? Does that have some strength?

Mark:                                    [40:53]                     It has some, the problem, there’s, there’s a number of exceptions to the forced sale doctrine, um, depending on whether you alter the product. Um, and, uh, you know, whether it’s certain properties related to the product have changed. Um, this is one of the areas that’s, there’s a lot of gray.

Stephen:                             [41:10]                     Okay. So, so they changed their packaging. That could be, that’s a, that’s enough of a difference. I might not be able to use the first sale doctrine to sell it because they were selling a blue package and now it’s a pink package for whatever reason. I mean, no,

Mark:                                    [41:25]                     not if they change it. If you change, if you made that change, let’s say, let’s say you took the product and you repackaged it in some way that was, you know, harmful to the brand or to consumers. Um, it’s an adulterated product. Um, that would certainly, you know, that might invoke an exception to the first sale dock tray.

Stephen:                             [41:42]                     It might, you didn’t say it will, you said it might. That’s again subjective, right?

Mark:                                    [41:46]                     [inaudible] they’re all own all that’s very fact specific.

Stephen:                             [41:50]                     So, so if I took something out and it was a, it was a four pack and I opened it up and I put it into single packs for example. Um, and they only sold it in four packs and now I’m selling it in a single, and probably the other way round is a better example. I’m taking their single packs, putting four together, putting it in a box and sending it into Amazon. That’s done all the time. Right. Bundles as we call it, that. Is that potentially a problem?

Mark:                                    [42:14]                     I would say the people who made that argument. Yeah. I mean, is there a case that I can’t say, I can’t think of off the top of my head of your case that you know, directly says that. I could tell you there’s been, I’ve been involved in cases where that those arguments have been made. Um, where do they end? I can say that, you know, the cases I’ve been involved that have been resolved, um, know people made people even do those anymore details. It’s all really fact specific. Um,

Stephen:                             [42:39]                     so cause it’s probably fallen on both ways, right? You’re saying? Yeah. Sometimes they’d sell her has to stop or sometimes they don’t. Right. So I mean there is no, this is the way it’s done every time.

Mark:                                    [42:48]                     Right. Until it actually goes through trial and a jury makes a decision, which doesn’t happen very often.

Stephen:                             [42:54]                     Yeah. I was going to say this, this, most of this stuff ends here right? Most of it. How much of this stuff do you see go to trial?

Mark:                                    [43:02]                     Not a lot. Most things, you know, they go for a little bit and you know, this case is often settle.

Stephen:                             [43:07]                     Well, you know, you go out and you speak on this subject to e-commerce sellers. What, what’s the, the top three, five pieces of advice that you guys give out that, you know, kind of absolutes for sellers to really be cautious with? If they really want to build a business, not a brand, I don’t care about the brand or any of that crap. It’s, they’re trying to build a legit business that has, uh, that has a capacity to grow that has a future that might be a sustainable. What’s the top advice that you guys give?

Mark:                                    [43:39]                     I guess as as IP attorneys? Um, you know, we do sort of tied together the brand part and we encourage people to these we do to the work upfront. Um, you know, a lot of what a lot of businesses when they’re starting up, you know, they’re sort of strapped for cash and they don’t want to spend money on legal. Um, but it’s always better to try and do as much of what you can up front. So be some of the work, right? So, you know, for, for almost every company it’s, it’s getting your trademark, you know, picking a name, picking a good name, getting it cleared, making sure that you’re not infringing any other, anybody else’s trademark rights, uh, and getting it registered. That’s probably the number, the first step that you have to do. Again, as we said, you don’t want to go through the whole process and do all your marketing and stuff and find out.

Mark:                                    [44:25]                     You got to pull it, that that would be worst case. Um, and the same thing with the patents. Do you have a new product and your design, um, you know, get your patent on flout. It takes a long time to go through the process. You know, you’re talking about a year, year and a half, couple years, um, to get your patent. Um, you don’t want to be in, as you know, the situation. We always, you know, that always comes up. You can get the frantic call from, from somebody in ecommerce seller and Amazon sellers saying, somebody’s somebody all my listing. So somebody selling the same product, what can I do? And you know, I say to them, what do you have so far? What have you already done? And often the responses, well nothing. Um, and especially for, you know, for things like patents, you have a time limit in which you have to file. If you don’t file your your packet for a pattern within one year from when you first started selling it, um, you’re out of luck and somebody can go freely, you know.

Stephen:                             [45:18]                     Sure. I started selling Steve’s water bottle. It’s a beautiful design by the way. And that water bottle, I have one year to get it patented or I risk the ability of somebody else patenting it.

Mark:                                    [45:29]                     No, they won’t be third party. It wouldn’t be able to obtain their own pattern, but nobody would be able to pad.

Stephen:                             [45:35]                     So nobody and now kidding. So something that’s been around, no kidding. I was thinking about this as applies with the trademark with merge because one of the things that I see on on merge, I’m assuming you’ve dealt with these cases too on Amazon merge rights specifically. I have this great saying, cats love, you know, the rain, I don’t know. I’m making this up and I’m selling it, selling it, selling it, and then all of a sudden somebody applies for a trademark on it or you know, a copyright. Excuse me. Right.

Mark:                                    [46:05]                     Okay. Um, if it’s a, say a slogan, potentially could [inaudible].

Stephen:                             [46:08]                     Okay, so wait, wait, wait. So let’s say trademark and they apply for a trademark and then they send me a note. Steve, you’re not allowed to sell this. We have a trademark, uh, on this and I, I think in the past, from what I understand is Amazon would say, hey, whoa, you got to stop selling it. Steve. Uh, we had a complaint. You, they have a trademark. You’re out. But wait, I’ve been selling it for two years before they, and their trademark is this week. Do I have rights? You have you seen that, right? I’m assuming?

Mark:                                    [46:35]                     Yes, yes. Trademark is different. So trademark, um, it’s really, you know, whoever started using it first, um, has a priority. Um, if somebody came along after it registered it and it’s possible to challenge their trademark based on your prior, prior offensive to challenge that yes, you could, you know, there’s different everything, everything’s expensive. What’s unfortunately, what’s you start getting, you know, lawyers involved, you’re gonna have to even file a cancellation proceeding through the trademark office when you bring a legal action. Um, none of it’s, you know, you know,

Stephen:                             [47:12]                     or cheap. But this is happening a lot right now. Correct?

Mark:                                    [47:15]                     Yeah, we see some of that. Yes.

Stephen:                             [47:17]                     Oh, you only see some of it. All right. I thought it was much more prevalent than that. Okay. Alright. I cut you off on your giving advice. Um, after patent approved. Uh, right where there, okay, so we’re going to do the work up front. We’re going to get our trademark and register. Then we’re going to get a patent approved or pending, whatever it is related to it. Okay. Continue on.

Mark:                                    [47:35]                     Same thing with, with patterns. You know, whatever you do product is, before we get even think about getting your own pattern, you have to make sure that nobody else has a pattern, right? So you’re saying that you want to be clear. Um, you don’t want to get too far down the road where you’ve, you know, you’re working with manufacturers and you’re having, you know, molds made up and you find out that somebody already has a design pattern. If somebody asks utility patents, you’ve got to scrap the whole thing. It’s the same thing. It’s just a matter of being prepared. Um, you know, if you’re private label seller, join your own products, just do the work up front. It’ll, it’ll save you a lot of long term.

Stephen:                             [48:06]                     Well, how expensive, I mean when you, when you see a company, and this is I think, good piece of advice. So, you know, I’ve got this great water bottle. I’m going to start mark, it’s going to be amazing. Nobody’s ever seen water bottles like these. So I’m getting ready to start up my company and I, uh, I think of a name that I look and it’s probably pretty good. And I want to pet, uh, uh, the bottle. Right. I want to trademark and then I want to put it in writing. I want both. I want to do both. I got what, what’s a reasonable expectation for a company or a new Amazon seller to expect to spend on that kind of stuff, but to have it done by the specialist lawyers, the ones that actually know this stuff rather than just a general lawyer.

Mark:                                    [48:44]                     Right. I mean there’s a, there’s a big variation in pricing depending on where in the country you are, what particular specialties are. I think for a trademark, I think around a thousand dollars for some searching and forget your application on file. Um, that’s in that range,

Stephen:                             [49:03]                     you know? And that would be about where you guys would come in even as a big New York City law firm. I mean that’s, that that would be without complications assuming it was reasonably okay. All right, good. That’s helpful. Yeah, around 10, something like that, you had to get that 75 bucks on it.

Mark:                                    [49:20]                     Patents has, depending on what type it is. Um, you know, if it’s design patents, I can tell at least my, for him and I believe many other firms do that on a fixed fee type of basis, you’re gonna wind up spending altogether between it, you know, the legal fees, um, good, good drawings that we would pay in outside dress pants and you and the filing fees, you’d probably spend around $2,500. Okay.

Stephen:                             [49:45]                     Okay. So that’s not, I mean I was thinking it was going to be a lot worse than that. Thank God utility,

Mark:                                    [49:51]                     um, can be a much wider range. It can be anything from a few thousand dollars to tens of thousands of dollars. There’s a better chance

Stephen:                             [49:59]                     to have, aren’t they, the utility patents because then you get to potentially license it to other people. Right. I mean that opens up, you know, that, cause that’s, I came up with a process here, mark, you got to use my process. There’s a fee,

Mark:                                    [50:12]                     right? Yes. But W but I would not discount, um, design patents today. I think that they’ve become increased, you know, increasingly valuable. I mean, the story a couple of years ago with the, you know, apple, Samsung case, you know, the position of the button on the, the front end of the phone know it was worth hundreds of millions of dollars. So design patents, you know, are a lot of bang for your buck, for your buck. Uh, you know, really we pushed, you know, definitely push them a lot more that, you know, years ago.

Stephen:                             [50:40]                     So if I’m a new seller and I think I have a product and it looks like it could be a really good one, um, is there, so you’re saying to your practice up front, do you get the preparation, excuse me, uh, do the preparation upfront, right? Get that work, uh, that work done up front. Are there fees that your company or other companies charge just to do that consultation?

Mark:                                    [51:03]                     Uh, no. I’ve never charged anybody just to just to speak with them and give them an idea of what they should do and lay out a plan.

Stephen:                             [51:12]                     Okay. So, so that’s, that’s something that your company offers? Um, somewhat. Um, you know, I’m not gonna say you gotta get a million people calling you, but, but it’s, it is something that you guys do have that initial call because you guys have to feel out if I’m a real client too, right. I mean you don’t want to waste your time either.

Mark:                                    [51:28]                     Right? Right. I mean some of these things we would ask for some, you know, once we laid out a plan and we’ve agreed on it, we would ask for some money up front. You know, cause we’re going to be, we’re going to be laying out money on your behalf.

Stephen:                             [51:36]                     Okay. All right. So I guess the takeaways that I’m going to take away from this conversation is if we do our work up front, um, the value of having a trademark and the value of having a patent could make that company worth a heck of a lot more than I’m making selling water bottles on Amazon. Correct?

Mark:                                    [51:56]                     Absolutely. Absolutely.

Stephen:                             [51:57]                     And that’s an asset at intangible asset. That’s a, there’s value there that I can sell.

Mark:                                    [52:03]                     Yeah, you can license up, ultimately license your brand to somebody else and then just sit back and collect money.

Stephen:                             [52:09]                     Okay. All right. So, uh, before I ask my final question, uh, best way to get in touch with you. So the, the, the law firm is, are law.com [inaudible] the name of it again, it’s Amster Rothstein in Evanston and they’re in New York City. Is that the only place you guys are located or

Mark:                                    [52:24]                     it is,

Stephen:                             [52:24]                     it is. And you can practice all around the u s

Mark:                                    [52:28]                     um, we do practice, you know, all over the country and around the world. We have affiliates and you know, other attorneys we work with, yes.

Stephen:                             [52:34]                     All around and we covered a broad, a range of subjects, but they, you know, they’re all kind of related to e-commerce today and it’s going to become a bigger deal. These guys, uh, this is where the practice is moving and so, um, this is a great place. So best way to get in touch with you. If they have a followup questions, they want to talk, um, different things.

Mark:                                    [52:56]                     Um, my email is m berkowitz@arelaw.com or by phone. Generally. I’m here at my desk and most of the time and the number, and I’ll put it in here. Sure. It’s two, 1233368063.

Stephen:                             [53:14]                     It’s funny you still have the a two one, two. You guys still made it right? They haven’t raised you out yet. Uh, everybody knows that that’s New York, but it’s getting smaller and smaller, right?

Mark:                                    [53:23]                     Yeah. I froze. Been here for awhile.

Stephen:                             [53:25]                     That’s right. Okay. All right. So the, the final question I ask people is what I see and I talk to so many different people that they have some success there. They’re really, you know, everything’s rocking and rolling and then he hit a wall, right? They, they get stuck, right. That get stuck in design. They get stuck with trying to figure out trademark and they get stuck. They just can’t move forward. And it doesn’t have to be just IP related. What’s your advice? What’s the best or something that you’ve used to be able to push you past that point of stuck to be able to, to attain the success you looking for?

Mark:                                    [53:56]                     I always try s I would say just try something instead of sticking out, just staring at the page. You know what I mean? I do a lot of a lot of writing and type of, you know, brief writing and legal argument and I think, you know, when I get stuck is just, just puts it, just start, you know, pick a direction and go with it. You can always, you know, change things later, but that’s the best bet is just to, just to keep going, put yourself forward.

Stephen:                             [54:16]                     It’s funny you say that because my, when I got through Grad school, that was it. I would write something, it was poorly written poorly, you know, edit it. But then that was the basis and then you can build from there. And so I think that’s really strong advice. Very, very strong. Well, very, very cool. Mark Berkowitz, a, you made law fun today. Very interesting actually. It is interesting and you made it very interesting and relevant and relative to us in the ecommerce world. I really appreciate it. Thank you so much. I wish you nothing but success.

Mark:                                    [54:43]                     Appreciate it. Thank you so much.

Stephen:                             [54:46]                     What a great guy. It was funny afterwards I said to him, I said, are the old dudes meaning me coming to him asking for advice? He said every day and it’s just so cool that they’re in the position of power now because let’s face it, every company is staring down this Amazon thing saying, what do I do? What do I do? What I do? And uh, you know, all of a sudden him and his other young guy are the cool guys on the block for now. So take advantage of it, mark. Very cool. A great guy. Again, it’s are law.com are law.com. Go read some of that stuff because it might pertain to you. It might be worth, uh, finding out. Um, you heard how much a trademark and a patent, I mean, it’s not that much money if you’re really building a strong brand, do it right. Do the work up front, as mark said. I think that’s really good. Solid advice. E-Commerce, momentum.com e-commerce.

Cool voice guy:                  [55:33]                     Thanks for listening to the e-commerce momentum podcast. All the links mentioned today can be found@incomersmomentum.com under this episode number, please remember to subscribe and like us on iTunes.