Chris French here from Modern Midwest Entertainment! Last Tuesday, I had the opportunity to have a sit down chat with an attorney regarding Entertainment and IP law. Being fairly new to the world of IP, I found the chat fascinating! I knew a few things about working with IP, but I got a bit of an eye opener as to just how complex registering and protecting IP can be.
Matt Kendall is an associate attorney for the law firm of Gardner, Linn, Burkhart and Flory LLP. This law firm, located in Grand Rapids, Michigan, specializes in IP, Trademark and patent law. It was a real eye opener for me to talk with Mr. Kendall. Learning a bit about him and about IP and patent law was one of the highlights of my week this week!
The following is the jist of our conversation on Tuesday night, the questions I asked and the paraphrase of Mr. Kendall's answers. I hope you get as much out of this as I did with talking to Mr. Kendall.
What got you interested in IP Law?
What does the day of an IP Attorney consist of?
Either working on preparing a trademark registration or a patent application, or working on an opinion for a client about patent, trademark or copyright rights. Phone calls with clients working on meeting goals and thinking about other possibilities that may affect their marks, etc. Sending out letters to client about docutments and keeping clients informed. Filling documents with the Patent and Trade office. Discussing cases with the other attorneys.
What is the most interesting thing about being an IP Attorney?
It is the ability to work on a broad range of technologies, art, music, trade-mark matters. He enjoys the variety. Works on patents and trademarks for many types of various goods and services.
What is the hardest thing about being an IP Attorney?
“Not screwing up.” In the beginning he was very fearful of this. There are a lot of things that you can do that can muck things up but things are fixable. The most difficult part on a week to week basis is managing client’s reasonable expectations for the success of their applications. People have a lot of misconceptions on patents and trademarks, especially if they’ve never been through the process. It’s a balancing act in being TOO optimistic to not optimistic enough. Figuring out what the client’s goals are. Also getting clients to do their due diligence when they are new at IP is difficult. Spending 2 or 3 thousand dollars upfront at the start up of a business is difficult but it is worth it when you can end up saving tens or hundreds of thousands of dollars in the long run.
What is the most difficult form of IP to deal with, in your opinion?
Copyright is the most difficult. The basic rules are easy enough to master, the problem is there are so many exceptions, exceptions to exceptions, and so many fuzzy lines as to what is infringement. Basic questions even require a lot of research. There have been so many legislations passed to get certain things excepted that everything is vague and requires a LOT of research. Even the nature of the question can ilicit a fuzzy answer. It’s very difficult to be definitive in copyright law. It takes more effort to get to a reasonable answer to people’s questions. Detailed questions are trickier and a bit more difficult to answer.
If you have two different clients submitting nearly identical IP, such as a logo or a slogan, how do you work it to the advantage of both clients?
Typically they wouldn’t. Either the logo or slogan might be intended for use in a similar good or service, it would be a conflict. You can’t represent both clients, the conflict of interest would have to be cleared. If the logo or slogan were in different goods or services, there would be no conflict.
Having a background in Mechanical Engineering, do you find it difficult to work with IP of a non-tangible nature, such as logos, etc.?
No, not at all. It is different in the patent side of things, he's perfectly comfortable working in the aerospace and computer software and mechanical applications. As long as things are not complex, biotech he won’t touch, he will be able to handle them. If it’s outside of the scope of what he know, he will ask another attorney or pass it off to another attorney.
What advice would you give to someone who is starting a new business and wants to avoid a lawsuit based off of IP?
Reserve some starting capital for trademark and patent searching, make sure everything is there early on. It may cost a couple thousand dollars early on, but it will save you so much later on. If you have parters, you may all get along early on, but it’s very good to have proper agreements in place between the partners so as not to add cost. Spend the money using clearance searches, so you are free to develop that trademark or technology, so that way you also know who the other players are and you will not be infringing on other people’s work. Due diligence is majorly important. People don’t want to do it because they’re investing very little money in making things go.
The best thing to do for copyrighting is to file a copyright registration. Filing fee is 35.00 and nobody can argue with a copyright registration date. I believe there is a section on copyright.gov that deals with this issue.
Copyright registration allows you to bring forth litigation, allows for less costly litigation, and allows you to seek damages if you have the registration filed before the infringement.
There you have it gang. Hope you've enjoyed reading this as much as I enjoyed creating it!
SEEYA!
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