662 Francesca Witzburg:

The best entrepreneurs know that true innovation requires you to “build the plane as you fly it” …because there is so much you can never really know or learn until you make that leap into flight. But some things never change, and one of those immutable necessities early on is protecting your IP or intellectual property. My guest today – Francesca Witzburg – shares all the ways founders and go wrong, and what you can do to protect your brand.

MELINDA

Hi, I’m Melinda Wittstock, and welcome to Wings of Inspired Business. I’m a 5-time serial entrepreneur and founder-CEO of the social podcast app Podopolo, and here on Wings we share the inspiring entrepreneurial journeys, epiphanies, and practical advice from successful female founders … on every business topic across every industry across more than 660 episodes now … so you have everything you need at your fingertips to build the business and life of your dreams. Wings is all about women lifting as we climb, so share the love by sharing Wings with an entrepreneurial friend so they can accelerate their dreams!

Today we dig deep into legal strategy and what you need to protect your brand, your proprietary processes, even your own name … in the real world and beyond to the web 3.0 metaverse… with Francesca Witzburg, an award-winning legal strategist and intellectual property expert, representing top businesses, brands, entrepreneurs and celebrities. Inspired by her love of culture, fashion, music, art, tech, and entertainment, Francesca shares must-listen advice for your business so you can best monetize your IP and stay protected and profitable.

Francesca will be here in a moment, first:

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Have you trademarked your name? Your brand, your logo, and all of your products? Have you gotten copyrights for your proprietary processes or content? The biggest mistake a lot of founders make is neglecting to do trademark searches when they first pick their name and get the dotcom – and it is an expensive mistake when success comes and it turns out someone else owns all the rights to those names, or when your invention can be easily copied or reproduced by someone else without any legal remedy.

Francesca Witzburg is an award-winning legal strategist and intellectual property expert, representing top businesses, brands, entrepreneurs and celebrities, across fashion, music, art, tech, consumer products, and entertainment, she helps businesses monetize their IP and stay protected and profitable.

Francesca has worked with some of the top global brands including Prada and Tory Burch, and at the largest law firm in the world. She’s currently a partner at the nationally ranked IP law firm, Loza & Loza. Francesca’s practice centers on all aspects of trademark, copyright, and brand

protection matters, as well as commercial transactions. She helps entrepreneurs and businesses protect, enforce, and monetize their intellectual property assets. She reviews their current assets to see what protections already exist, sees where clients have major gaps and exposure, and then designs a personalized protection strategy which includes education and ongoing support.

She also advises an array of clients from Fortune 500 companies, and frequently writes, speaks, and teaches on the subject, with academically published pieces in The Trademark Reporter, Women’s Wear Daily, and Pepperdine Journal of Business. She has also been recognized as New York Super Lawyers Rising Stars and as Best Lawyers: Ones to Watch. She currently sits on the Board of Directors of venture capital firm Grant Barco Capital and is a legal advisor for the anti-Asian discrimination group AAP(IBELONG), founded by Elizabeth Kari, mother of the woman attacked in Times Square this year.

Today we dig deep into trademarks and copyrights in the real world, as well as the emerging web 3.0 metaverse from crypto currencies to NFTs.

So let’s put on our wings with the inspiring Francesca Witzburg.

Melinda Wittstock:

Francesca, welcome to Wings.

Francesca Witzburg:

Thank you so much, Melinda. I’m so excited to be here today.

Melinda Wittstock:

Oh, it’s great to have you. I think a lot of entrepreneurs can go wrong, especially in the early stages of their business, not really thinking about protecting their intellectual property. You’ve worked across so many different industries. Where do folks tend to go wrong at the early stages? And what should they be getting in place right from the get go?

Francesca Witzburg:

I think people make the biggest mistakes early on when they only go to a corporate attorney, or a tax attorney and they get their LLC set up and they do their dotcom, and they work with their branding person and get their website. All that stuff is very important, but one critical aspect gets missed and that’s legal. And if you are not doing the proper search and clearance to make sure that the name you’ve chosen is available, you can end up in a litigation, or it could end up costing you a lot of time and money if you somehow find out that someone else has the name and you have to change. And unfortunately this is an all too common situation. It does not matter how big or small you are. IP infringement is IP infringement. So the biggest mistake is for businesses to just launch without working with an intellectual property lawyer.

Melinda Wittstock:

And that can be a mess, because you spend all this time and effort building a brand, building brand awareness, and then if you suddenly had to change your name, or something like that, because you haven’t done those searches right at the beginning, that’s a costly mistake. Have you seen that happen a lot?

Francesca Witzburg:

It happens all of the time unfortunately. And that’s why I’m here, I want to educate and empower businesses to doing that due diligence upfront and looking at it as their insurance, doing the proper search, getting it on file, because as an entrepreneur myself, Melinda, I understand, you spend so much time coming up with a list of names and then narrowing that list of names down to a few that you like. And then the one that you love and you’re married to, and you just want to get it going, and you get the dotcom and you get the social media handles. Then you build your logos around it. Then you get a designer around it, you get your LLC. That’s already thousands of dollars you’ve spent. If you have physical product, you’re spending money on product packaging.

And with all of the online platforms, all of the integrations take time. And if you have to change that name, it could be emotionally costly, but also very, very expensive, and monetarily and fiscally detrimental. So rather than go through that and having your band spend all that money, it’s a very simple process to work with a trademark and copyright attorney very early to make sure that you’ve protected your names and that the name is okay. And also not only that with your name, but that your content is protected, especially with online businesses. A lot of people are in the coaching space, or they have services or programs online. All of that can actually be protected under copyright if you work with a good intellectual property lawyer.

Melinda Wittstock:

Yeah. It’s so, so important to do. And we don’t necessarily think about it. So there’s trademark, but there’s also copyright, and there’s other ways just in terms of contracts, beyond the trademark, beyond just making sure that you can use the name. What are some of the other traps, I guess, that folks fall into?

Francesca Witzburg:

I could name a bunch. Let me think what’s the most important. I think waiting. So what I’m seeing now is people come to me and they’ll listen to a talk I give and they’re all in, we have a consult, I do a 15 minute free strategy call. And then people decide, well, it’s not a priority right now for me, or I don’t have the budget. And what ends up happening is people wait. And even by waiting a few months, you’re marketing, you’re putting your name out there without any protection. And what I’m seeing more and more of unfortunately, is I have several our clients now who have come to me because someone has registered their name in that three to six month period where they delayed the trademark process. So I see people waiting, or not really recognizing the importance of it until it’s too late. And at that point then we have to file for the trademark, we have to send a demand letter. It just becomes really, really expensive when it could have been really affordable and easy at the beginning.

Melinda Wittstock:

Yes. So, it’s like the person who gets a bill in the mail, and if you ignore that bill, it just keeps getting bigger and bigger and bigger.

Francesca Witzburg:

Yeah.

Melinda Wittstock:

The problem doesn’t go away when you ignore it.

Melinda Wittstock:

So Francesca, you’ve represented so many major well-known brands, big companies, whether it’s in fashion space or technology or whatnot. So as a company gets bigger, are there more, I would imagine there are more things you need to be thinking of, but assuming you’ve laid the ground right, what are some of the things that founders as they grow and scale their businesses, and those businesses become well known, what are some of the traps or issues that they have to contend with?

Francesca Witzburg:

Sure. I like to think of the business because a lot of your listeners and a lot of my clients are founders and CEOs who now have built their businesses three to five years, and they’re starting to scale. They’re hiring more people, they’re building out their teams. And when it comes down to it, I really like to keep it simple. No matter what stage of business you are, there’s three major, major legal areas that have to be covered when it comes to IP. So there’s your trademarks, which are your names, your logos, your designs, your slogans. Your copyrights, which is your photos, videos, the content, any other programs, materials you’re putting out. And then the contracts to protect you, your business, the relationships, and all of that IP. So those three things are important at every single stage, whether you’re at the launch scale or amplify stage.

And for those founders that are starting to scale, it’s still those three pillars. And now it’s an assessment. And I work with a lot of clients on this. We look and see what else beyond your main brand name are you using as a trademark? Because as you grow, you start to acquire more and more trademarks, and more and more copyrights. And you build a business with all of your assets, but most people don’t really think about them as assets, but they are, your client `lists are also intellectual property. And the more and more you grow, the more relationships you’re going to have. So you’re going to hire new people. You’re going to have more clients. You’re going to do partnerships.

All of that involves and requires contracts to protect yourself and your intellectual property. So it’s really still those three basic foundational pillars. And we look at it and say, okay, what’s next? And at the end of the year, when I work with clients, we always do an assessment and say, what new trademarks should we protect? What new copyrights should we protect? And what new contracts, so that you’re constantly building out that asset protection and those contracts.

Melinda Wittstock:

So let’s get into the contract bit, so say for instance, you’re hiring employees and that employee leaves, it’s a simple fact that they can’t utilize your intellectual property, they’re going to have all kinds of knowledge about your business and say, they go to a competitor. So is that like we get into the territory of non-competes, or not being able to use the intellectual property? But then there’s another issue around enforcement of that. How do you even know?

Francesca Witzburg:

Yes.

Melinda Wittstock:

Whether they’re using your trade secrets or whatever?

Francesca Witzburg:

Yes. So the first step is just to have them, because a lot of businesses don’t. I understand it comes down to budgeting and you don’t need to have every single thing, but there are with those pillars in mind, there is a foundational trademark, a foundational copyright, and a foundational contract that you need. And then as you grow in scale, you start building those out. But with the foundational pieces, if you have employees, you need an employment agreement. And in that employment agreement, it’s going to have non-compete language likely, non-compete language if you desire, non-disparagement, meaning they can’t go and leave and badmouth you.

Francesca Witzburg:

There are certain provisions in there that really are set up to protect you, your reputation, the business, and the intellectual property. And it’s the same thing for independent contractors. And then as you grow and scale it’s just having the right contracts in place to protect you and that relationship. And unfortunately, at the launch stage, a lot of people don’t think about this until things go south. And what happens is at that point, it becomes expensive to hire lawyers. It’s emotionally draining if you have a falling out with a client, a former client, or a former employee, or a partner. And a lot of this could be prevented very early with cost effectiveness, with simple contracts and filings.

Melinda Wittstock:

So what about in the context of a fairly young company, or emerging growth company say in the technology space, doing a deal with a company much bigger than it, and protecting its unique innovation, because it’s unequal, I guess, in terms of the budgets, in terms of the knowledge, in terms of the power, in terms of all of those things? What do you advise a younger company to do in that context to protect their intellectual property?

Francesca Witzburg:

What most of the time happens is if you’re working with a big company, you’re going to do a branding, either a co-branding deal, you’re going to create content or some sort of collaboration. They’re going to hand you a piece of paper. They’re going to hand you a contract to sign. In that contract it literally says that you agree that you’ve hired your own attorney and that you understand every single sentence that’s in there, and that all the rights you’re transferring, that’s it, you’re transferring those rights and you have knowledge of that. What most people do is they’re so excited to get money, or to partner that they just sign. Which, if anyone who knows the bridal industry, there was a really high end designer, Haley Page, who did that. And she signed a contract when she was really young in her twenties. And now she got let go of the company. And she’s legally prevented from using her birth name, because she signed those rights away in her twenties.

Melinda Wittstock:

Oh my God. That sounds like what happened to Prince.

Francesca Witzburg:

Yeah. Whenever you’re dealing with personal names, exactly, or artist names, pseudo names, it’s very common in the creative industries because you’re getting investors to invest in you. And that’s the exchange that’s being made. They want to invest in you and they’re going to help bring you success, but a lot of the times they’re unfavorable terms. So if you don’t have an intellectual property specific lawyer, look at some of those provisions, you could be assigning, meaning transferring all of your rights to your actual names and your content and your copyrights and things that you’ve worked really hard to create if you don’t understand what you’re writing.

So for those small businesses, it’s absolutely worth, there’s lawyers all over. You can find very expensive lawyers. You can find very cheap lawyers. You can find lawyers somewhere in the middle, but no matter what the main takeaway is, you absolutely need a lawyer before signing anything, because going into court and saying, I’m sorry, I didn’t know, or I was young, is not an excuse. You are under a, there is a presumption that if you put your name on something, you’ve read it, you’ve hired a lawyer and you understand what you’re giving away.

Melinda Wittstock:

Ah, gosh, I just imagine there are so many people who’ve found themselves with contract regret, like in those sorts of partnerships. Gosh. And it presupposes, you have a good lawyer as well [crosstalk 00:15:11].

Francesca Witzburg:

Mm-hmm (affirmative).

Melinda Wittstock:

Do you see lawyers making mistakes in this area? Advising people poorly?

Francesca Witzburg:

I’m sure there’s the instances, and so it is important for people to ask, have you done these before? Have you done these types of deals? I think where I see a lot of things not go right, is when people just think that a lawyer’s a lawyer and it’s not true. When you’re doing a deal that involves your name or trademarks, copyrights, content, things like that, you really should be working with someone who is an intellectual property attorney, or at least has experience dealing with those types of agreements that they understand the IP provisions, because if you just hire someone from the internet who maybe only has a couple years’ experience, they don’t understand, you could end up in a mess. So it is important to really vet your lawyers.

Melinda Wittstock:

So back in that scenario where a younger company is negotiating with a giant, and you show up and say, no, look, I can’t sign this agreement. How does that usually go? And what’s the best way to stand your ground in that kind of a negotiation?

Francesca Witzburg:

Okay. So if you’re given a contract from a big brand, it’s presumed that you’re not just going to sign, that you’re going to get a lawyer, but a lot of people don’t. So what some companies actually do is to prevent legal battles. They will give the person signing a $10,000 credit to use a lawyer. So they’ll pay for the other person to go get their own lawyer, to get the contract reviewed properly and drafted so that there’s no issue at the end, and that if they even try to contest it, oh, well, I didn’t know, I was young, or so and so, that can get thrown out of court very quickly just by it being in the contract, saying that we paid you $10,000 to get your own lawyer, which you did. So I think the main takeaway is you just, you need lawyers. Whenever you’re signing anything, don’t let the money and the name and the prestige fool you. If things go south, you could really lose fundamental assets and your names. And it’s very important to work with lawyers.

Melinda Wittstock:

And so, and you say that they often offer that, they may not. So you need to know to ask. I think the biggest question is actually knowing what questions to even ask. People don’t even know what they don’t know. You know what I mean?

Francesca Witzburg:

Yeah. I think the main thing people should know is if you’re going to enter into a deal, just reach out to a lawyer, reach out to an entertainment lawyer, or an intellectual property lawyer, whatever space you’re in. If you’re about to do a collaboration or deal with someone there’s experts in this. Contracts are hard. There are a different language, took me years to understand them. And so for someone who’s a novice who doesn’t know really the contract terms, you should never sign anything blindly. It’s just important to get someone to help interpret that contract for you, so you understand. And then also, so that they can advocate for you. If there’s something that’s not favorable, which a lot of the times they’re not favorable, you don’t have to just sign something because they give it to you. You can push back and you should, and lawyers will help you do that.

Melinda Wittstock:

So, research it. So, there’s a lot of people who, the type of business, this is one that’s intriguing to me where someone starts an e-course business say, and their internet marketing. And it’s all built up around personal brand. How do you best protect a personal brand, and create an asset out of it, because often these are cash businesses. And then when the person gets tired of doing that business and they maybe want to sell it, there are no assets to sell. There’s just cash, and it’s completely dependent on that person. How do you advise people with personal brands in that realm? It’s really best protect themselves.

Francesca Witzburg:

You file your trademark. You file your name as a personal trademark. It’s really important. And you don’t it in name of a company that’s owned by other people. You do it in the name of either a company or yourself. So you own the rights and you could strategically license it to other people. There’s definitely strategies, but it’s very important to protect your name. And most people think, oh, it’s my name. There’s no inherent right for you to use your name. If you were born with the last name Kardashian, and you think you want to use your name for clothing or cosmetics, good luck. That’s not going to happen, because the Kardashians have built a brand around their last name. And it’s the same thing for anyone. If there’s someone using your name, or your name happens to be a big brand, a good example is me. I can’t create a clothing line called Francesca, because there is the Francesca very famous, well known store that’s across the country. So I’m not going to get that trademarked.

And if people really want to build a brand, yes, celebrities do this, but also a lot of my coaches and people who are consultants, they do file trademarks for their personal names.

Melinda Wittstock:

Yeah. Yeah. So, that’s important to do is to actually trademark your name.

Francesca Witzburg:

Yes. If you’re going to be devastated, you get a demand letter from some big company saying, oh, we own Melinda for this certain category and you can’t expand into it. It’s pretty devastating. And I’ve received a couple of calls about this. Recently I had a client who’s, he’s a well-known influencer, has a ton of followers online. And he received a demand letter from a very big company, telling him to stop using his name for a clothing launch that they wanted to do, which is devastating. What does that mean? If he settles with them, he can’t use his name at all for clothing? What happens if he partners with a fashion brand to show up to a runway show, or to do some sort of collaboration, his rights are going to be limited. So the way you get around it is you file early to protect your name and just be safe so that it’s a defensive play. And you also have an asset then in your name, you own the trademark to your name, which is pretty great.

Melinda Wittstock:

The pandemic has created so many solopreneurs, people just starting out, there’s so many people and gig workers so that personal brand protection for them, obviously is vital. Do you trademark and copyright a course say that you’ve created as well?

Francesca Witzburg:

Yes, I do that a lot with clients. The trick is you do it before that’s published, or else it’s very complicated and hard to do. So, before things were published.

Melinda Wittstock:

I remember though with my, the podcasting app, Podopolo, we had to prove that we were real before we could actually file the trademark, it was tricky to get it right, because you want to trademark something ahead of use, but you got to prove that it’s in use.

Francesca Witzburg:

Yeah. That’s why trademarks are not, they’re not easy, that’s why I have a whole profession around it, and there is a whole profession around it. There’s a lot of strategy that goes into it. The trademark office is unforgiving when it comes to mistakes, if you don’t file the right way, you really could be in a situation where you have to refile and you lose time and money, but also the use basis. There’s a lot of law behind it. You can’t just file for anything. You either file based on an intention to use. So you want to preserve rights early, you don’t have to show use, but you do need a real intention to use. You can’t just say, oh, I want to trademark this and file for random categories. There has to be a real bonafide, they call it bonafide, intent to use.

Francesca Witzburg:

And then if you are using, it has to be used and sold, or offered for sale to US customers in close association with the mark. Those are legal terms and there’s legal analysis that goes behind it. So if you don’t file the right way, you’re going to trigger what’s called an office action. The government’s going to reject it. It could trip you up and you could end up having to refile and spend more money and time.

Melinda Wittstock:

Well, what if you have an international, sorry, I’m going to pick up right there. What if you have an international product? Because by definition, anything on the internet is international. So you’ve got the US trademark office, but how do you protect yourself globally?

Francesca Witzburg:

From a legal perspective, just because something on the internet is international is not true, they’re going to want to see, because trademark rights are territorial. So just because you have a dotcom in the US does not mean that you have rights in every single country. The question is, are you actually using the mark in that country? So are you selling to customers in the UK from your dotcom in the US? Do you ship to those territories? Again, it’s a tricky area just because as we, these are laws that were created before international commerce was really this substantial and the digital markets obviously being built out. So they’re old laws that we have to apply and work within. And it gets really tricky, the way that you get around it really is you decide which countries you really want to protect your name in.

Francesca Witzburg:

People file a lot in the EU. You can file one EU trademark application that covers all of the EU, but since Brexit you’d have to file separately in the UK, also Canada and Mexico and China, because in China, it’s important, it’s a first to file regime, which means that if someone hears of your name and it’s a hot brand in the US, and if you don’t file in China right away, there’s people and companies that will file immediately and squat on your rights. And good luck trying to get that back. Michael Jordan’s been battling this. He didn’t have the rights to his name for a while in China. So it’s really important to have a strategy if you are an international brand, which most brands do, most global brands do have a strategy.

Melinda Wittstock:

So say for instance, you’ve got me thinking now because I think, oh my God, so like Podopolo, we have four and a half million podcasts on our app in every language, all over the world. We should be filing trademark applications everywhere right now.

Francesca Witzburg:

You wouldn’t do it everywhere because I’ve worked for some of the biggest brands in the world and they do not do it everywhere. It’s not feasible to spend millions of dollars unless you’re Facebook. But so it’s really, for smaller and mid-size businesses that still do well and that perform well, you should work with an IP lawyer to come up with a strategy and figure out which are the countries of most important. You could do rollouts. You could do it in certain phases, like phase one is the most important countries. Phase two is the next important. And then phase three. So you actually over time are getting the protection. And there are strategies where you can file an international application and check the box in certain countries to extend your rights there.

This is why it’s all important to work with an IP lawyer, because there’s a lot that goes into it and just work with someone who’s going to actually be more of a strategist and help you plan. That’s why I call myself a legal strategist because there’s just a lot of planning to budget accordingly, figure out what’s the most important IP I want to protect and where and when? So not doing it all at once. So you can use your money on other things like coaches and sales and ads, but you allocate a certain percentage to your legal so that you are getting protection.

Melinda Wittstock:

So what’s the step that takes you from the little TM mark next to your logo, to the registered, the little R symbol.

Francesca Witzburg:

You file a trademark application and you get it registered with the government. And so once the government issues a certificate of registration, you can then use that R.

Melinda Wittstock:

And so a lot of folks have a lot of business opportunities around licensing, but don’t necessarily understand, there’s a lot of ways to make some nice passive income that way around licensing. Is that something that you work with people on as well?

Francesca Witzburg:

Yes, of course, because you’re licensing your intellectual property. So the first step in that is determining that you actually own it. So, making sure you do the right searches with lawyers and then getting the filings in place to have the document from the government, the certificate of registration, you register them. So you have that document saying, I own it. And then you draft licensing agreements. Some licensing deals can be done by word of mouth, but imagine that you’re not having a contract memorialize is pretty detrimental when you’re dealing with your names and your copyrights that are so important to you because there’s still a contract if it meets certain requirements, and then if there is a falling out or something goes wrong, you have to spend again, that gray area of the law, which means expensive dollar bills, legal fees, legal battles, you have to fight over what the terms were.

So to get around that and to save money, you get a licensing agreement. They don’t have to be… A lot of licensing agreements are very detailed, because they’re long term relationships and very important assets, but some licensing, maybe short term and lower risk. And so getting something in writing is very important because there’s typically it’s the who, what, when, where, why? So who are you licensing your rights to? Who are you giving permission to use your IP for? What are you licensing? What are you giving away? Where, in what territories? Is it just US or worldwide, or et cetera?

And how, how are you going to formalize this agreement? What is it going to look like? What’s the marketing terms around it? There’s a lot that goes into that. How much? What’s the cost? And there’s a lot of ways you could structure the deal on payment. And I like to do the why too. What’s the purpose behind it? What’s the goal of the relationship with the parties? That’s very high level overview of licensing, but for businesses to understand it’s important, these are not crazy expensive contracts. They are a fraction of what it would cost if you have to litigate, or you have a falling out, or if someone’s violating your rights.

Melinda Wittstock:

Right. So there’s a theme emerging here. You need to get advice really, really early on. And even if you’re out now and you’re going and your business is growing, if you haven’t done this, go get advice from a great intellectual property lawyer, for sure. How did you get into this Francesca? What’s your backstory? Were you always interested in the law? How did you get into intellectual property law?

Francesca Witzburg:

I always loved art and culture and fashion. And in college I studied history and Spanish and then I did a study abroad in Madrid, and oh, I fell in love. I fell in love with the city. I fell in love with culture and other languages, and it’s a big fashion hub. And when I came back, I was in my junior year and I had to decide on whether or not I was going to go to law school or not? It was something I toyed around with my whole life. And I applied, I got into the Benjamin N. Cardozo School of Law in Manhattan, which is also in the center of another, if not the fashion capital of the world, where my school was literally next to Parsons and The New School and FIT was also close by. So I got this incredible experience working with fashion and art and entertainment clients really early on in my law school experience. And I just fell in love with it.

I thought it was a great way for me to help and give back to artists and creatives. And I just went for it. I met all the right people. I got really great internships. And then I was committed to being a really good IP lawyer. And I worked at a boutique firm where all we did was trademarks. I then moved to the biggest law firm in the world where we had, majority of our clients were fashion and entertainment. Some of the biggest brands in the world working on some really cutting edge topics. And then I decided to move and become a partner at an intellectual property only firm where I now service clients in a ton of different industries in, with really flexible and competitive of rates and billing so that I’m able to advise any size clients. And it’s been really rewarding for me because I love working with creatives and entrepreneurs and founders to give them high quality advice without them having to sacrifice their business and give an arm and leg.

Melinda Wittstock:

How wonderful is that? Of course, there’s so much changing in our world right now, as it goes more and more virtual with blockchain, metaverse, Web 3.0, all of these things, NFTs and whatnot. And it’s a brave new world. And so say for instance, if you’re one of those people that’s building, I don’t know, land on Ethereum or something, how do you protect that? Or is that inherent to the blockchain itself?

Francesca Witzburg:

No, I’m really glad you brought it up because I actually just launched a new platform called the Central Lawyer on Instagram, where I am nerding out on all things metaverse, Web3, crypto, NFTs and why they’re important, why they’re important for everyone, whether you’re a coach, or you’re building a community online, or you’re an individual and you want to learn more about it, or you are a global brand that, as we’ve seen with Adidas, they entered the metaverse in a really cool way by buying a very, very popular and expensive NFT called the Bored Ape Yacht Club, and they’re doing a entire collaboration around it. This is not going anywhere. It is just the beginning. We’re scratching the surface on it. So it’s really important for people to understand and play around with it. I’m committed to educating people on the legal issues that are involved with it, because really again, the same stuff applies. Those three pillars, it’s just in a new medium.

So if you have an NFT project, you have to trademark, make sure that the name is available. You trademark the project name. You make sure you have rights in the underlying work. So whatever where the NFT is, it’s typically a piece of art, or it’s an image. It could really be anything, but that’s a lot of what we’re seeing. So you make sure that you own the rights to that and you copy, file the copyright. And same thing you check to see if there’s any publicity rights. You can’t just take an image of Lady Gaga and create an NFT around it, although I feel like some it’s the Wild West right now. Some people are definitely violating copyright and rights of publicity laws.

And then the contract piece, which is also something that’s really up and coming, if you buy an NFT, there really isn’t much behind it besides saying that you own the artwork in this digital space. And it’s a really, just a link to the artwork that you’re getting. There’s no other rights to commercialize it, or do other things with it for the most part, unless there is a separate agreement that is associated with it in the form of a license, or other contract terms. So it really is, I feel like to tie it all back, it really is a lot of those three things. There’s definitely more, there’s compliance, there’s security issues involved. But from my perspective, to get my businesses and clients up and running with the IP protections in this new space, it’s still the same thing. It’s the trademarks, your copyrights and your contracts.

Melinda Wittstock:

Got it. So what is the best way to find you Francesca and work with you?

Francesca Witzburg:

Go to Instagram. I’m @thetrademarkattorney, it’s the hub, it’s the central hub. I’m always on there. I’m posting a ton of educational and fun content and you’ll see links to the central lawyer and to some other projects I’m working on, but that’s really the hub, is @thetrademarkattorney.

Melinda Wittstock:

Fantastic. Well, thank you so much for putting on your wings and flying with us today.

Francesca Witzburg:

Thank you, Melinda.