Guest Blog by Patrice N. Perkins

These days, it seems like everyone’s an entrepreneur. And, as the small business industry grows, the coaching industry grows also at rapid pace – life coaching, business coaching, wellness coaching. You name it, there’s a coach for it. Now, this isn’t a bad thing. The truth is, no one is born with all of the essential skills it takes to start and grow a business. Entrepreneurs need skills that surpass what can be learned in the classroom and in industry workshops, seminars and summits. We need coaches. However, the coaching industry faces unique challenges, and an unfair rep because its an unregulated industry. So, the way that you become the go-to pro is by helping your clients get results. Right?

Wrong. Kind of.

Your unique and compelling brand gets clients in the door. The quality of service will lead them to stay for dinner. The results that they achieve through working with you will lead them to invite their friends for a party.

But, the key is… they have to first knock at your door. A lot of people see the law as regulatory, red tape. Lawyers are the fun police, right? What if I told you that the law can actually help you leverage your uniqueness as a coach and supercharge your coaching business? What if I said that the law can be used as a strategy to help you impact more people and change more lives? It absolutely can and that’s what I love about it.

1. Building Your Brand + Protecting It

Your brand is everything about you that makes you stand out in the market. It includes your logo, brand name, tagline, hashtags, and social media images, but also the how behind your business. Yes. How you serve your customers and lead them to results is also a part of your brand. Your brand encompasses everything about how you show up in the world.

There are three types of intellectual property that work together to help you protect your brand. Typically, you will hear of two — copyrights and trademarks. But, I’m also going to give you the secret scoop that no one talks about.

When it comes to protecting a brand, there are two schools of thought. The first school – “Don’t worry about people stealing from you. It’s an energy drainer and after all, you are an original. No one can duplicate that.” The second school says, “You’ve worked hard to create that amazing [insert your thing]. Don’t let anyone steal that from you! Go after them and teach them a lesson.” I’m right in the middle. While I believe that you shouldn’t become obsessed with people brand jacking, I think it’s naive to not take the steps to protect it. After all, your brand is your moneymaker.

Let’s dig in.

The first part of your brand that people see is your brand name, logo and tagline. It’s what wows them, right? It separates you in the market and gets the virtual doorbell ringing (i.e. Facebook private messages, emails).

Trademarks can protect your brand names, slogans, and logos. However, not all things brand related can be protected with a trademark. The biggest mistake I see when people are developing a new brand is that it is too similar to a pre-existing brand. In order to protect your brand with a trademark it must be unique and cannot create a likelihood of confusion with another brand. In other words, if the public is likely to reasonably mistake your trademark as being associated with another company, then you cannot register yours as a trademark.

People ask me questions like, “Well, I found another person whose brand is The Millionaire Coach but mine will be The Millionaire Mindset Coach. Can I register?” The answer is, probably not. Why? Because whether there is a likelihood of confusion is not based on your personal opinion, but what the general public is likely to think. It’s fair to say that these two brands could easily be confused. Right? This part of the trademark equation is not always black and white, but I am showing you how to make the initial determination on your own.

So, why worry about protecting your brand with a federal trademark? How does that supersize your coaching business. In a few ways:

• It gives you exclusivity over the use of the trademark in your industry. Remember, you are building a strong brand to set yourself apart from everyone else. And shine. You need to be the only lady (or guy) with access to it.
• It is the first step to laying the foundation for a licensing model, which is how you can eventually scale your coaching business.

Now, I know you’re thinking, “Well my brand is my name. Why do I need to register the trademark for that? Don’t I own it?” True, you were born with it. But, do you own it for commercial use? Nah. In fact, it’s even harder to get a trademark for your surname than other brand names. Before you can register your name as a trademark, you have to prove that you’ve been using it for commercial purposes, openly and consistently. It’s only fair to the million and one other people who you might share a name with.

My advice is each time you post an advertisement to Facebook, whether it’s for a clarity call, webinar, Google hangout Q&A or 1:1 coaching, screenshot it. And, save your files. Submit that documentation with your trademark application to strengthen it, showing why you should be granted exclusive use of [insert your name] for commercial use.

#GeniusTip… I want to dig deep into how trademarks can supercharge your business. Each service that you deliver can and should have a branded name. For example, your consultation call, shouldn’t just be called a consultation. Your strategy session, shouldn’t just be called a strategy session. Name it something unique. Once you do that, you can trademark each aspect of the service that you deliver. You can take this same method and apply it to the processes in your business. Regardless of whether you recognize it or not, everything you do has a process behind it. Give each process a name.

Branding each aspect of your service allows you to stand out in the market, but also, own a trademark associated with how you deliver a service. Think about it. Your way of coaching can’t be completely original. But as soon as you insert your authenticity and personal experience into it, formulate a consistent way to deliver it, and give it a name… it becomes original. Your original and branded methodologies, processes and systems can be protected with a trademark.

2. Protecting your Imagery, Content, Packages and Other Written What Not’s

Original photos, branded graphics, blog posts and pretty much anything that you use to promote your brand is protected by copyright law. Your podcasts, webinar recordings, presentations, worksheets, workbooks, e-books are also covered under copyright law – it’s pretty darn extensive. The moment you create, and publish the work (i.e. shared it) you own the copyright to it.

However, if you didn’t DIY and hired someone else to produce your visual or written work – they own the copyright. It doesn’t matter that you paid an invoice. Unless you signed a contract that specifically has a work-for-hire clause in it (meaning that by contract you became the original owner of the copyright) or an assignment clause (meaning that they are transferring ownership to you), then they own the work. Ideally, you should ask them to assign ownership of it to you. What if you’ve already had tons of shit created? You’ll have to weigh how important each piece of work is to your overall big picture. Was it a piece of work that you’ll only use one time, or a core part of your promotional message or branding?

A lot of people go to Fiverr for graphic design work. But, who owns the final designs? You or the seller? As of today, Fiverr’s Terms of Use states,

“Unless clearly stated otherwise on the sellers Gig page/description, when the work is delivered, and subject to payment, the buyer is granted all intellectual property rights, including but not limited to, copyrights for the work delivered from the seller, and the seller waives any and all moral rights therein. The delivered work shall be considered work-for-hire under the U.S. Copyright Act. In the event the delivered work does not meet the requirements of work-for-hire or when US Copyright Act does not apply, the seller expressly agrees to assign to buyer the copyright in the delivered work. All transfer and assignment of intellectual property to buyer shall be subject to full payment for the Gig and the delivery may not be used if payment is cancelled for any reason. For removal of doubt, in custom created work (such as art work, design work, report generation etc.), the delivered work shall be the exclusive property of buyer, and seller assigns all rights, title and interest in the delivered work. Note: some Gigs (including for custom created work) charge additional payments (through Gig Extras) for commercial use. This means that if you purchase the Gig for personal use, you will own all rights to the delivered work without purchasing the Extra. If you intend to use it for business purposes, you will need to buy the Extra.”

Unless the seller specifically states that they retain copyright ownership, then you’re all good. Triple check the details on their page. Is there an upcharge to transfer the copyright ownership? Pay it.

Copyright is a term that is thrown around rather loosely. But, what does it mean to own the copyright in your work? It means that you own these exclusive rights:

• The right to reproduce your creative work;
• The right to distribute or sell your creative work;
• The right to grant a license for others to distribute or sell your creative work;
• The right to modify your original work, or create a derivative (i.e. worksheets or illustrations based on an original blog post that you wrote);
• The right to perform or display the copyrighted work.

Now remember, if someone created the work for you and they didn’t sign over ownership in a contract…they own these rights. Not you.

The next question I’m usually asked is, “If I already own the copyright. Why do I need to pay to register it?” Great question, I’d be asking the same thing if I weren’t a lawyer. By registering the copyright you have the following benefits:

• Registration is proof in itself that you are the legit owner (if you registered within five years of publishing the work);
• You can sue for infringement in federal court if someone jacks your stuff;
• You are automatically entitled to a minimum amount of damages each time someone jacks your stuff (because the law says so). U.S. Copyright Law provides $750-$30,000 per each case of infringement, and up to $150,000 in extreme cases. **This applies if you’ve registered within 3 months of publishing your work, or before infringement. Whichever comes first.

Lastly, it supercharges your coaching business.

Copyright ownership creates an undisputed record that you are the owner of your shit. So, when you are ready to scale, teach other women your methodologies, make more profit and impact more people. You can. If someone steals your shit and claims it as theirs, then you’re already registered, can deal with it and keep legal costs low(er) because there is an official record – not a battle of he said, she said.

In addition to registering your copyright you should:

• Put a copyright notice on all of your written work: Sample: © 2015 Jane Doe. All Rights Reserved.
• Add a watermark on your images. I know, I know. Watermarks are hideous. But minimally, post all imagery with your logo.
• Include a copyright policy with all programs that explains that the content should not be redistributed to others, copied or modified for any purposes. It should also provide an email for people to contact you should they have questions about the policy.

3. Protecting Your Other Coaching Powers with Trade Secret 

Trade secrets are a powerful, yet rarely discussed form of intellectual property. Trade secret law is one of my faves (self-proclaimed nerd and I’m okay with that). Generally, a trade secret includes everything that gives your business an economic or competitive advantage and is not generally available to the public.  You can find the specific law in your state by Googling “ABC State Trade Secret Statute”.

In other words, a trade secret is your secret power. Examples of trade secrets include:

• The process you use to lead clients to breakthroughs or any other technique, method or process;
• Data/statistics on what works and what doesn’t;
• Operations or training manuals;
• Strategic plans;
• Marketing strategy;
• Strategic partner lists and databases;
• Prospective client lists.

There is no formal registration required to protect your trade secrets. You simply have to take reasonable efforts to treat it as a secret. For example, if you are explaining the detail of your process in a promotional video, step by step, you’ve ruined the secret. Identifying your trade secrets and having a standard policy in place to protect them can take your coaching business to the next level, and allow you to leverage it through licensing strategies. 

The concept of protecting your secret power as a trade secret sounds so simple, right?

Yet, when most people inquire about ways to protect inventions and methodologies they immediately think of patents. What if I told you that a trade secret is more powerful than a patent? Well, it is. A trade secret lasts the lifetime of the secret, while a patent only lasts for 20 years and then it’s up for grabs. Powerful stuff, right? Coca-Cola has protected its world famous formula for more than 100 years. The formula was originally developed by a pharmacist and it’s only known to a few employees and stored in a vault at their headquarters in Atlanta, Georgia. Peeps like Nisha Moodley, Rebecca Dickson and  Rosetta Thurman are sitting on a stack of trade secrets. You are too. 

Now that you have insight on the massive power behind the trade secret game let’s talk about how this applies to you and your coaching business. First, review your state’s trade secret statute so that you have a good idea of how the law will apply to your business. Next, make a list of everything in your business that you consider a trade secret. Don’t forget that it must give you a competitive edge or economic advantage over your competitors.  Or, it must have the potential to give you an edge. Once you’ve identified your company’s trade secrets, then decide on a trade secret protection strategy for each.

You can protect your trade secrets in the following ways:

• Password protect or encrypt the sensitive files;
• Make the information available to a limited number employees on a need to know basis;
• Implement a print and shred policy for the sensitive files;
• Provide team members with a non-disclosure/confidentiality agreement before they receive access to the trade secret information;
• Label all trade secret information as confidential;
• Store the physical files in a vault or lockbox and limit access to the key;
• Most importantly, all of your policies need to be written so that there is clear evidence of your effort to protect your trade secrets.

As you can see, implementing a trade secret strategy is a low cost way to protect your secret powers that otherwise cannot be protected by copyright or trademark law.

4. Putting it All Together + Scaling Your Coaching Business

This is where you really get to enjoy the rewards that come along with laying the legal foundation for your coaching business. At some point, you will want to expand your business in a way that allows you to impact more lives and make more cash. Sure, you can launch evergreen products and programs. But, what if your coaching centers around high touch, 1:1 personal interaction? What if that is part of your success factor, and why people get results from working with you? Do you just throw your hands up and plateau at the point when you’ve maxed out time and energy? Maybe. But, you don’t have to. You can license elements of your business model to supercharge your work as a coach.

Now, you have insight on how to identify and start to protect your intellectual property. As you work your business, build buzz, get results for your clients your intellectual property will increase in value in cash and through its brand recognition.

What does licensing mean?

Licensing happens when you loan, or lease, the right to use your proprietary methods and brand assets to other people for a specific purpose. The great thing about licensing is that you have creative control over what it looks like. Two examples that I love in the coaching/consultancy world right now are Tara Gentile and Danielle LaPorte.

Tara has coined a phrase Quiet Power^TM, the title of her latest book as well as her coaching system and methodology. She has industry peers who she trained under her Quiet Power^TM methodologies who are now Quiet Power^TM certified coaches. They work with Tara in her flagship program to coach her clients. Tara’s current licensing model allows a few, selected coaches to use all of her Quiet Power^TM intellectual property so she can serve more clients than she could alone. But, she keeps the high touch coaching that is now a cornerstone of her methodology. It will be interesting to see how she expands this in the future.

Danielle’s licensing model is at the opposite end of the spectrum. The Desire Map^TM licensees pay a fee for access to The Desire Map^TM intellectual property, and in exchange they can offer The Desire Map^TM workshops and independently teach her methodologies anywhere in the world. It allows Danielle’s teaching to reach more women, provides an additional revenue stream, and arms the women who are licensees the opportunity to expand their business under her methodologies.

Both approaches are genius. Licensing arrangements are set in stone by a licensing agreement providing the terms and conditions of the relationship. There also needs to be training workshops and/or a handbook teaching licensees the lay of the land.

How do you set your business up now, so that you can license it in the future? I’m going to give you five ways:

1. Do everything in this post. Protect your work and brand with trademarks, copyrights and trade secrets.
2. Keep an ongoing inventory (this can be a simple excel spreadsheet) of your intellectual property. Whenever you create something, or give it a name…list it.
3. Journal everyday. Keep a journal of what works, what isn’t and your methods and processes. It will be much easier for you to prepare valuable, training material for your licensees down the road.  Also, if you do this as you go along you’ll have a clearer picture of where you tend to shine and get results for clients. Remember, that will be a part of your branded methodology.
4. Think about your end game. How would you want a licensing model to look for your business? How do you see it adding value to your peeps? Start paying more attention to how licensing is being worked in your industry.
5. Set up a six month or annual system to review all of the above. You’ll be surprised at the gold mine that you are developing.

My goal is for you to think about the possibility in your coaching business, and how the law can be your friend (not your annoying sidekick). You don’t have to be in business for a gazillion years to begin licensing your work. It can happen after a few short years, if you’ve laid a solid foundation. It’s time to work smarter. You in? 

 

Patrice N. Perkins is the Creative ESQ. behind Creative Genius Law, a law firm serving creative entrepreneurs + innovative brands doing major impact work; game changers, innovators, change agents. Recognized by the American Bar Association as a “Legal Rebel”, she encourages clients to leverage their intellectual property + abandon the starving artist mentality. She provides legal counsel on business start-up and maintenance matters, transactional law, intellectual property (copyrights and trademarks), social media, advertising and marketing law. Patrice blogs regularly at Creative Genius Society.