341: How To Fight Back Against Chinese Counterfeits With Steven Weigler

00:00
You’re listening to the My Wife, Quit Her Job podcast, the place where I bring on successful bootstrap business owners and delve deeply into the strategies they use to grow their businesses. And today I have my favorite IP lawyer on the show, Steven Weigler. Now Steven is someone who I consult whenever I have a trademark or an IP protection problem, and he’s helped me with some trademarks in the past as well. Now I always feel racist and awkward when I say this since I’m Chinese, but today Steve is going to teach us what we can do to fight back against factories in China.

00:28
from stealing our designs and outright copying our products on Amazon. But before I begin, I want to thank Postscript for sponsoring this episode. Postscript is my SMS or text messaging provider that I use for e-commerce, and it is crushing it for me. I never thought that people would want marketing text messages, but it works. In fact, my tiny SMS list is performing on par with my email list, which is easily 10x bigger. Anyway, Postscript specializes in text message marketing for e-commerce, and you can segment your audience just like email. It’s an inexpensive solution,

00:57
converts like crazy, and you can try it for free over at postscript.io slash Steve. That’s P-O-S-T-S-E-R-I-P-T dot I-O slash Steve. I also want to thank Klaviyo, who’s also a sponsor of the show. Businesses are always most successful when they own their own data, customer relationships, and their growth. And that’s why more than 50,000 e-commerce brands like Living Proof, Solo, Stove, and Nomad trust Klaviyo to deliver their ideal customer experience. Now, having used Klaviyo for many years now,

01:23
I can wholeheartedly say that Klaviyo is the best email automation platform in the world for ecommerce, and you’ll get everything you need to build strong relationships that keep your customers coming back. Now with advertising getting harder and more expensive, it’s time to take back control of the customer experience with email and SMS. So if you’re ready to drive future sales and hire customer lifetime value with a marketing platform built for your long-term growth, get a free trial at klaviyo.com slash my wife. That’s K-L-A-V-I-Y-O dot com slash my wife. Now on to the show.

01:53
Welcome to the My Wife, Quit Her Job podcast, where we’ll teach you how to create a business that suits your lifestyle so you can spend more time with your family and focus on doing the things that you love. Here’s your host, Steve Chu.

02:10
Welcome to the My Wife Quitter Job podcast. Today I’m thrilled to have Stephen Weigler on the show. Now Stephen is someone who I met back in 2016, I think, through an attendee from the Seller Summit. And I’ve actually used his legal services on a number of occasions. He’s spoken at the Seller Summit several times. And today he is my go-to guy when it comes to intellectual property protection, copyrights, trademarks, you name it. He is the founder of EmergeCouncil.com where he helps e-commerce entrepreneurs protect their IP.

02:37
Anyway, the reason why I brought him on the podcast today is because Amazon copycats and IP theft is getting worse and worse. Furthermore, factories in China are also stealing designs and selling them in the US and Steve is going to teach us what we can do to fight back. And with that, welcome to the show, Steve, how are doing today? Good, good to hear from you, Steve, as always. And I’m glad everything’s going well. Under the circumstances. Yeah, seriously. Give us the quick background because I’m sure some of the listeners don’t know who you are. What you specialize in?

03:07
when it comes to your practice? Sure. So just as a little bit of background, I was an attorney for AT &T Corporation a long time ago. And that’s really where I learned about the importance of IP assets. And after that, I started my own company. It was focused on predictive analytics for school districts. But through that experience, have been an entrepreneur. I’ve to raise a lot of funding and deal with issues like boards.

03:35
But one big thing is I started a brand from nothing. The product and the goods and services didn’t exist. And so through that experience, I really learned a tremendous amount about the value of intangible assets, is in literally speaking means things you can’t touch. But figuratively speaking, it’s intellectual property. what I learned is that, and I did that for eight years and then started my own law firm. What I learned is that intellectual property,

04:05
especially how you brand yourself or how you brand your good or services is extraordinarily important and can be easily protected at a relatively low cost point. And so Emerge Console, our whole focus is really doing kind of the same work as large comprehensive law firms that really focus on enterprise businesses like AT &T and taking that and working with markets that are early stage or could be solo paniers or

04:34
or growing companies and using those same strategies and helping them on their IP strategy. And we know the first, the biggest thing and certainly the biggest thing for Amazon is trademark and how you brand and how you protect that brand. Yeah, I mean, this is what I like about you. You’re used to dealing with smaller businesses and that sort of thing as opposed to these large law firms that they usually charge on the leg actually. Won’t work with you or if they work with you it’s

05:04
It’s kind of on a, well, it’s not on a fast track. That’s for sure. You’re not going to get a senior partner unless it’s your father or something or your mother. All right. Well, let’s, let’s talk about Amazon. Let’s say I have a new invention and no one’s making it just yet. And I want to sell it on Amazon, but I’m worried about knockoffs. What would you recommend? And I kind of want to compare the different options here. So I think there’s patents, copyrights, trade secrets. What

05:32
What would you recommend if I was selling an invention? Sure. and the question is a good one in the fact that you identified that you haven’t started yet. So and you haven’t brought it to market yet. That is an excellent time to kind of put your stake in the sand and say, all right, how important, how big is this invention? Because at that point, because you haven’t published it, you haven’t put it up.

06:01
issued it to market, you can actually, if it’s an invention, you could patent that. And a patent means it’s something that’s, it basically protects inventions. And so it either has to be absolutely brand new invention, or it has to be a significant improvement on an existing invention. For example, if the invention were dental floss, you would have to figure out a whole new way that someone could floss their teeth. If you could do that, you could get the patent. Now,

06:30
So if you haven’t gone to market yet, it’s a crucial time to say, do I really have an invention? Now in the patent world, and as Steve knows, I discourage, not actively discourage, and I’m not a patent attorney, but I actively discourage the pursuing of patents because it’s very, very expensive and difficult to enforce. And generally a good patent strategy involves a plethora, a number of patents as opposed to just going and getting one patent.

07:00
And so a good patent strategy usually, you gotta look at any IP strategy as like a little thread. A good IP strategy takes the thread and it’s a sweater, multiple threads going in between each other. So if you really feel like you have an invention, you should certainly pursue patent expertise. And how I work is I’m not a patent attorney. I certainly can talk about patent strategy. And if it kind of passes,

07:29
the initial discussion like, that’s a good idea. I have a number of patent attorneys in various fields. Like right now we’re working on a, for one client we’re working on a hemp plant patent. On another one we’re working on an electrical design. The third we’re working on something to do with chemicals. And so you’re not going to use the same patent attorney for those three because they come usually from the science that they’re, that we’re trying to protect. So that’s, that’s number one.

07:58
For most of your students and for most of the general public, you’re not gonna have an idea or an invention that’s particularly patentable. And so we look at the other IP strategies, which I can walk through. Hold up, before we jump past the patents. So number one, you can’t have gone to market yet, right, with a patent. Otherwise you can’t follow one. Yeah, mean, the answer is generally yes. You cannot have.

08:24
But for example, if Apple has a new design for their iPhone, because that would be a design patent and maybe have a utility patent for that, that new design could be patented. But generally speaking, for your audience, yes, the moment the cat’s out of the bag, the patent goes out the window. Okay. And can you just give me a ballpark of how much it would cost to get a patent? Yeah.

08:53
Quotes I’ve been getting around 6,000 per patent application. the strategies.

09:02
vary from, all right, file a provisional patent and some of this themselves, they file a provisional patent, which isn’t reviewed by the patent office, the USPTO, but, some inventors go for it and go and get the full patent. I don’t really have advice on that because I’m not a patent attorney. I’ve been told provisional patents are pretty worth. So let me ask you this. If someone on Amazon is violating your patent, is that

09:31
Is it straight? I know you’ve probably worked with clients that have had this happen. Is it pretty straightforward to get them kicked off or is a lot more money required to enforce this pattern? That’s a really good question, Steve. Here’s the problem with a patent in general and dealing with patents on Amazon. And I do do a lot of that kind of work is somebody will come to me and say, I have a patent. And so you read the patent. It doesn’t say that it’s a patent. So for example, I’m just trying to think.

10:00
Maybe it’s a shoe-hider. Well, you read the patent and it talks about how if you put polyurethane and I’m just making this up and rubber together, galvanize it, it’s gonna make a better shoe-hider. That’s what the patent says. Well, Amazon doesn’t, they’re looking at a good, they’re looking at an actual good. So proving that that good that you’re saying is infringing violates your invention is not something that.

10:29
they’re really geared towards understanding or wanting to understand. So it’s relatively complicated to make a patent argument to Amazon. And they tend to, my experience is they tend to ignore those types of arguments because it’s not the same as saying, and we can go into some of this, it’s not the same as saying, I have a trademark called Adidas, which is a trademark is a brand of a good or service.

10:58
and my Adidas shoes have this look and feel. And if we all close our eyes, we know the look and feel of Adidas is the three stripes. That’s the Adidas trademark. Coming to Amazon and saying, my brand name is Adidas and my look and feel, which is called trade dress, is the look and feel of a product. And it’s very obvious to Amazon when something like that is happening. And you can protect all of

11:27
So that type of argument tends to be much easier to make than the argument that you violated a patent. Right. I understand that. Yeah. And violating a patent. mean, if you do have to pursue infringement through the courts, patent infringement, it is one hugely expensive, complicated battle that seems to be going on and on. You can just Google the

11:56
Apple versus Samsung cases and see how much that battle costs and how it keeps on going on. Well, sure, you’re not going to maybe have that battle in district court, in federal district court, but you’re going to have a battle that’s relatively similar in price and complexity. And so it is kind of like you really have to think out if you’re thinking about patenting something.

12:23
and going to market or what the other IP strategies you can use. Okay. So from what I’m hearing here, if I can just summarize is that the patent is probably not going to be very useful for protecting your IP on Amazon, right? And if it does, it’s going to cost a of money. It costs a lot of money and you better have something that not only is patentable, but that that patent really means something and think about a strategy as opposed to one and a

12:52
Well, let me ask you this. So why would anyone get a patent then in the first place? If you’re a small business that doesn’t have a lot of resources? Well, because patents give you exclusivity for that, for that invention in the marketplace for 20 years. So you can’t enforce, if you don’t have the money to enforce it, what’s the point of the money and you don’t plan on partnering up, it’s going to be a tough battle. Okay. Also, I’ve just seen it many times.

13:22
If I can poke holes through it, and I’m not even a patent attorney, just wait till what a patent litigator does to your patent. So you better have a bulletproof strategy. But if you do, you know, it could be, it could be a serious money for you. Right. Like I’m not just disparaging the right play for patents. But I think that there’s other alternatives. And I think most of your, your students and most of my clients, that’s not their strategy. Okay. So let’s move on to what a good strategy to

13:52
ticked like a product that you might sell on Amazon? Sure. so if you look at and Steve, you and I have worked or I’ve worked with a lot of your successful clients, some of your power sellers included. And if you look at their success, it is a combination of potentially the uniqueness of products in the marketplace, in the Amazon marketplace.

14:21
meaning the dogs want to eat, the dogs meaning the consumer wants to eat the dog food. But it’s also a combination of other things they’re doing in their business planning, such as that makes them successful. So one big thing they do, I’ve noticed a successful Amazon seller does, is they really have a good handle on their brand. So a brand is how you hold yourself out to goods, I’m sorry, to consumers.

14:50
So how you look on Amazon is basically what it is, what the name of your product is, what the customer experience, but not only that, what the customer experience is going to be. And so a good, and protecting all of that is through trademark. And as I said in the Adidas example, it’s also through something called trade dress where you protect the look and feel. And so that is really,

15:19
If you’re start somewhere, it’s having a discussion either with your brand or with someone like you, Steve, and I know a lot of people talk to you about brand, a lot of your students. And the third, and then, or someone like me, because I just have a lot of experience in identifying brand, and then really mapping out what your brand and brand protection strategy are. So how are you going to protect the uniqueness of not only the name of the product,

15:48
but the look and feel of your product and the look and feel of the customer experience. For example, that’s not so important for Amazon, but it’s important when you move to your own Shopify site or something where you’re have a complete customer experience. let me ask you this. What are some pitfalls of registering your trademark yourself? Well, there’s a number. Number one is when you have to sit and strategize, if you have no strategy, you have no game.

16:18
And that’s true in basketball, it’s true in trademark. So really stepping back and figuring out what the, the categorization of the product, meaning there’s 45 different categories. The first 35 are goods. second, um, fifth, the second 10 are, are services and you have to put it in the right category. Otherwise your trademark is worthless. Then you can’t describe it to, you can’t take too much real estate in your description. You can’t take too little real estate.

16:46
There’s tons of technical issues involved. Most importantly, if you don’t nail that brand and explain what the brand is to Amazon, I’m sorry, to the USPTO, there’s a chance that you might infringe on someone else’s trademark and not only get rejected by the USPTO, but set a record that you’re infringing on someone else’s trademark, which if it’s a big company, chances are…

17:13
you’re going to get a cease and desist letter and potential lawsuit just by filing your trademark. Okay. Yeah. So, so a lot of times, um, larger companies and frankly, a lot of my smaller successful companies are starting to monitor everyone. The filings coming into the USPTO and we do that all the time. And if we see something that’s infringing, we will threaten to, you know, the client has to be okay with it, but we will threaten to, to, um, seize the goods and enforce our trademark against them.

17:44
So if you don’t do this right, not only are you, you’re ruining your offense, you’re creating a situation where you’re gonna need an attorney because you’re gonna potentially get a cease and desist letter. So where it’s a very low cost and of low expense. And for example, we do the initial consult where we map out the brand, help map out the brand for free. But we have to have those discussions and figure out what you’re trying to protect and making sure that we don’t hit any landmines when we’re trying to.

18:13
What’s an example of a landmine?

18:17
Yeah, go ahead, Steve. Yeah, what’s an example of a landmine? A landmine is one is what I just talked about. Number two is where you file the trademark and you you get denied because the market itself is could be descriptive or considered generic. It has to have some originality to it to be to be able to be protected by the USPTO. So we get sometimes a descriptiveness refusal, which is terrible because of clon.

18:47
the Amazon seller’s already in the market and then their trademark gets denied for being descriptive or the kind of the kiss of death one is where USPTO determines that your mark has caused confusion with other models. There’s situations also where you think you got the trademark and you actually get the certificate and then you figure out that you filed it wrong. For example,

19:16
I’m just trying to think of an Amazon example, but you file for a services mark, like your online store. If you’re going to go Shopify, you file, say the name is Seller Summit and it’s it’s an online store. But, and you file as an online store, but you don’t file to protect the goods. And then someone takes the trademark for the goods. So there’s a whole bunch of, whole bunch of things that happen in our world. And,

19:45
The best strategy again is if you, I just look to use, cause the NBA finals are on, is I keep on using a basketball example, which is if you don’t come out, like all the players are good and you have to figure out all your competitors are, you know, good enough to get to the market. So you got to come out with a strategy. And if you don’t have a strategy, chances are that you are going to get killed, which no one wants to happen to you, or that you’re going to come back and have to pay more money to undo

20:15
the lack of strategy you have and put together this. Actually, that was what I was just about to ask you. Some people just want to just kind of rush through the trademark so they can get Amazon brand registry. Can you undo like, what does it take to undo something if you screwed up the first time? Well, a lot of times you have to abandon it. Sometimes the worst case scenarios is that you have to abandon the brand, meaning you have to re rebrand, relabel and like, file the trademark or well, sometimes you have to refile the trademark and start all over.

20:45
But sometimes you have to rebrand meaning whatever you were doing isn’t going to work because you, you, you set off burglar alarms or you hit stepped into the bear trap. And so it’s, it’s, there’s huge peril to it. And so what Amazon’s doing, by the way, Steve on the brand registry is they have a new pilot program that, and your students have had success with this. Whereas we filed a trademark and the moment we file.

21:13
we can fill out this form and it’s considered to be placed immediately on the bread right. Yeah. Yeah. So they’re, they’re aware, they’re aware of what the situation is. And, um, but at the same time, uh, Amazon, Amazon cares about Amazon and I guess they should. So they’re not necessarily looking out for you and your brand. All right. So the trademark, think most people out there understand, mean,

21:41
A lot of people have talked about it already for getting brand registry and it’s pretty easy to get a listing taken down for trademark infringement. Like if they’re using either your mark in their listing and whatnot. But what if it’s not a trademark infringement? What if someone is literally copying your design and there’s one of my students in my class who’s very successful and I think they’ve gone to you. Obviously what she has isn’t patentable but you suggested a copyright. Can you just kind of talk about what

22:11
Cause I was told a long time ago that if you just put copyright somewhere on there, that protects you. But then, uh, in the past, we’ve talked about registered copyrights. Can you kind of just define what all these things are? So again, just walking back to the kind of the main branch of the tree or the main trunk of the tree is you have to, it’s a good idea when you, when you’re going to start this whole process is to have a strategy. And so I look at, I look at copyright as one of the, like, if you are a painter,

22:41
or a artist, or even a handy person, it’s one of the tools you have in your tool chest. So trademark is one tool and it protects brand. Copyright protects original works of art. And it’s protected by the constitution of the United States and it’s really cheap and really easy to register. so you have to look at, when you’re looking at, you’re about to paint a canvas,

23:11
sure you’re looking at the brush that’s gonna get 90 % of the canvas painted, which is your broad brush, which is your trademarks. You also have to look at a copyright strategy, which is another brush. so copyrights, again, protect original works of art. Well, original works of art can be logos, they can be websites, they can be songs, they can be logos, they can be almost…

23:37
that can definitely be web copy, that can be how you describe your product, as long as it’s original. you’re not saying it’s a hamburger, like that’s not gonna be copyrightable. But if you’re explaining what the hamburger is or what your product is, all that wording can be copyrighted. And so when we’re looking at copyrights, we’re looking at what can we do to keep a competitor out?

24:06
And also this is, and so a lot of times it is kind of the description of the product or it is a picture of the product packaging. So if you look at good copyrighted product packaging, um, to Blaron, the chocolate that’s in the triangle, that’s an example of original product packaging. Um, even how M and M’s are packaged or how M and M’s look, that’s an example of something that could be copyrighted.

24:36
So, and it’s, so that’s really what copyright strategy does. Now copyright, Steve, you’re right. Copyright can be protected just by putting a C, but it’s not enforced. then, so it’s putting a C, the year, and who protected it. So for example, my company is called Emerge Console. If it were my copyright on my website, I put the C, the year,

25:05
Emerge Consul LLC that would protect it. However, copyright protection is not enforceable unless you file a registration for the copyright at the United States Copyright Office. So if it’s not enforceable, what’s the point of even? It is like it’s almost like reading philosophy. It’s like you read it and you’re like, I can’t believe someone wouldn’t want to file it for registration the way they courts interpret enforceability.

25:34
And the cool thing about copyright is, unlike trademark, there’s statutory damages. So if someone infringes on your copyright, you can threaten to sue them, and the damages can go up to $100,000 per incident if you register it. But you can enforce it if you don’t. OK, so basically it’s worthless to just write copyright down, essentially. It’s close to it. I mean, I don’t see any value in doing that. Or it’s better than not doing it, I guess is the point.

26:04
But if you want, know, copyright is, it is about $50 a filing is the cost and you can, you can take collections so you don’t have to file one copyright for each, each of the, so for example, if you had five product designs, well, you take, could have one application for those five product designs for, I think the price just went up, but it’s like $65. Okay. So what would you recommend to protect an Amazon listing?

26:33
So an Amazon listing, the problem with an Amazon listing is part of it is, of the listing is owned by Amazon, right? Their website is owned by Amazon. So you’re gonna take the part of your product description and also another one of the product packaging. And then potentially the logo. Logos are hard to get through because again, they have to be original works of art. Your writing of the description is original.

27:02
Logos, a lot of times it’s like, like I just got one and it’s a CMG put together. Well, the copyright office isn’t going to see and G has been invented by someone else’s. It’s part of the English language. They don’t care that it’s put together. Like that part can be a little tricky. And then Steve, but that’s again, if we’re looking at a strategy, we’re going to put this all on a spreadsheet. So we’re going to say, all right, well, here’s your trademarks. And it might be one or two or two or three.

27:31
And then we’re just going to say, all right, here’s the elements of your copyright that have been protected. So that’s another, I would look at it as another branch of the tree, but you put it all in a spreadsheet. So with different tabs, so you can see how you’re strategizing, just like we talked about patent. You don’t want to just have one patent to be done. You need a strategy. And so this shows a strategy. So let’s say you file a copyright on your design, like your packaging and maybe your copy.

27:59
And let’s say someone comes around and just makes like a tiny little change. Technically, the copyright isn’t enforceable then, right? At that point? Well, I have one right now. It’s an interesting question. And it’s a loaded question that if you took copyright in law school and sat through a whole semester, you still want to have the question answered. But but the point is, is if there is no surefire test on whether that’s a copyright violation,

28:28
But if you can take a look, it’s almost like a long time ago, the Supreme Court of the United States defined what pornography is. And they said, can identify it when you see it. so, know, porn compared to art. The same holds true with copyright. If there’s a multi-factor test to determine if there’s been infringement, but one of the ways to do it is if you look at it and it looks pretty similar and it looks like they copied original.

28:58
elements of your art, you can claim copyright violation. that’s, generally speaking, it’s not, it doesn’t have to be a direct counterfeit. It just has to be, it has to look damn close to it. So you could convince a finder of fact that they took your stuff. Like I’ll give you an example. Right now we’re working on an animation copyright case where somebody took some huge publishing company, like a

29:27
I don’t think it’s universal, but it’s one of those companies took one of my clients pieces of art and put it in an animated cartoon. And you can see where the piece of art is. The rest of that cartoon doesn’t look anything like it, but the background is there’s his art sitting in the background. And that is clear copyright violation. it’s a loaded question, it doesn’t have to be any changes still might violate copyright.

29:58
A good way to think about it is listen to all the music copyright violation cases. Like there’s one where the Temptations, I think, said that George Harrison ripped off their music. Well, you listen to it and it doesn’t sound like George Harrison did anything of the sort, but a musicologist compared the notes or the way the notes were going and claimed and successfully claimed copyright infringement.

30:26
It is a loaded question. It’s not sure. But that doesn’t mean you shouldn’t do it. But again, you have to be smart, like just like trademark. You don’t just do it to do or, you know, buy. would suggest not buying a book about trademark for dummies. Like it’s just not your time is better spent doing something else and leaving it to somebody that this is all we do. And you recommend copyrights because it’s cheap to file. But in the in the event that you have to enforce it, then you

30:56
then it becomes kind of like the patent situation then, right? Honestly, think it’s easier to, my personal view is, and what I’ve noticed in my practice, it is easier to enforce and more threatening to enforce than a patent infringement because there’s statutory damages and no one wants to screw around. And definitely easier to enforce than a, unless the trademark violation is over. Because the trademark is difficult to sometimes enforce in the court.

31:26
Okay. So I think, I think it’s like, I think it’s, it’s really an underappreciated area of law. And for those of you guys that do your own code, for example, like you have your own Spotify site, you do your own code, you can also protect code through copyright. And a lot of that can be trade secret. You don’t even have to show the copyright office, the trade secret elements of the code. So it just, there’s a huge amount of value in copyright and it’s huge, hugely

31:56
Well, it’s underappreciated and underpriced really is where we are on copyright. And then if I could cover one more thing, Steve is the, so we’re looking at again, trunks on the tree and our branches off the trunks of the tree. The fourth branch is trade secret. You guys, can’t emphasize enough as when you grow as an Amazon brand or a e-commerce brand,

32:23
that a lot of times you’re starting with, it’s just you, or it’s just you and maybe someone that is a trustworthy source. But a lot of times as you grow, you’re not paying attention or there’s a tendency not to pay attention to the fact that your secret sauce is being distributed freely inside your company. And chances are, just from my experience in business, that the people you started your business with

32:51
aren’t necessarily going to be the people you end your business with. And so you have to, there are certain elements of how you get successful that are called trade secret. For example, what are you doing with how you answering Amazon questions? How are you getting to the top of the list on Amazon? How are you pricing your product? How, what’s your map pricing if you’re using multiple sources to sell your product?

33:19
All those things can be considered trade secret and you have to sign an agreement inside your company on what those are and that you’ll sue if necessary. No one wants to sue anyone. I mean, most people don’t, but that you’ll, you’re going to take strong action to make sure that these remain trade secret. So those are things inside the company that you can do. A great example is Coca-Cola. They never patented their formula because they didn’t want anyone to know it.

33:48
The patent you have to publish. But the formula is trade secret and only few people in the company know it. And if those people ever leaked it, they’d be in serious trouble. They’d be facing huge damages because the Coca-Cola secret formula would be out. The same holds true and I see this time and time again with a lot of our Amazon clients is that they’re not taking the steps as they grow to protect their…

34:16
the elements of intellectual property inside the company. Well, if you can’t do it inside the company, how are you going to do it outside the company? So does that involve filing someone or getting the employees to sign something or it’s getting the employees because the employees are independent contractors to sign something. Okay, got it. But it is mapping out what it is. Right. Okay. Let’s switch gears a little bit and talk about a common problem that I common question I get asked is

34:44
If I’m designing something and I’m sending it over to a Chinese factory, how do I stop them from taking that design and selling it on their own?

34:54
Sure. Well, let’s go back to again, you always need a strategy. if you’re, so the first, if a, if a client called me, the first thing I’d ask is, right, where are you manufacturing? Are you manufacturing in outside the United States? The answer is yes. Then it’s like, all right, have you done any due diligence or is this someone you found on, on, on Alibaba express or like, how did you, how did you find this, this manufacturer? And the answer is like,

35:21
Well, I found them on Alibaba and I have no prior experience with them. There’s two things I would suggest you do. The first is ask if you can do it outside the platform. Ask for what their terms and conditions are of the sale and how they’re protecting intellectual property rights. You can even ask for it if they don’t speak English. You can ask for them to send it in Mandarin. So you want to see how they even suggest that they would handle some.

35:51
The second thing is for the intellectual property rights is you can protect the trademarks and the copyright in China. And China is really good at, probably better than the United States, and Alibaba’s really good at this, is if they see that there’s intellectual property protected in China, they will take down the listing. So it’s notorious.

36:21
Chinese factories are notorious for copying, selling goods and then maybe manufacturing double that amount and using it on Alibaba. Or the second thing is if you have a unique good, well again, have to, it’s no different than printing. They have to ink the press. They have to get the molds ready. So again, it’s in their, it’s their advantage to print more or to manufacture more.

36:50
And so again, the best way to deal with that is if you have the intellectual property rights, it’s going to be much easier to enforce at that point. So how do you get the intellectual property rights? Can you just kind of walk through it? of times there’s two ways to do it. We can, we can get the intellectual property rights through something called the Madrid protocol for trademark. And there’s something called the burn convention for, for copyright. And there’s, there’s something in patent too. So that’s, that’s a strategy that originally we were doing, but

37:19
In my opinion, it’s better to it to talk to someone like me and someone like me has a connection in with a Chinese law firm and the Chinese law firm. We work in concert to make sure that the, mark is filed, the marker, the copyright or if it’s a bad, is filed in China through and that you have protection in China. Surprisingly, it’s very, very inexpensive to do that, especially if we’ve worked up the strategy.

37:49
meaning that we know what category to put it in. We know what the goods and services are. We know what the mark is. And then we just send it over to them to file it in China. The filing fees are really low. Can you give me a ballpark? Sure. It’s less than a thousand dollars for everything. Right. Okay. That’s reasonable. And then does copyright work the same way over there that that it does in the U.S.? Yes. Okay. But there are arguably it works more efficiently. Really? Yeah. Okay.

38:18
What about trade marks? thing. It’s a one party government. If it’s their stuff, I mean, the connotation, it’s an interesting connotation because we have issues. mean, it’s no secret that the United States and China are in kind of a crosshairs right now. And so we always think, well, you know, and we see all these knockoffs or counterfeits and we think, oh, well, things must be crazy over there. Well, they enforce their law very well.

38:46
So certainly we have to look at customs, how, again, Chinese manufacturers, it’s in a, they’re not into small orders. It’s not lucrative. And so you have to look at it from their perspective, but at the same time, you’re protecting yourself. And if they see that you’re really taking steps to protect yourself, well, then they’re gonna find someone else to prey on.

39:13
So you recommend getting the copyright and trademark in China as well as whatever market that you’re selling. Yes, if that’s your strategy. So like, for example, Steve, I just had a person say, well, I’m manufacturing in Michigan. Well, then no. Right, But for most, yes, most Amazon sellers have some access to the Chinese. That’s where the manufacturing is coming from. The other

39:42
aspect of that is think about if you all of sudden see your product being knocked off on the Marketplace or or that there’s counterfeits of your listing or your product Well think about how hard it is to stop it once it hits the American border Because you got to look at it like I look at it like you know when you turn on the faucet how at the beginning the water all kind of comes in the same direction, but when it hits the backsplash for the

40:09
you know, the sink, it splatters in many different directions. The same holds true when you see an Amazon counterfeit listing. It’s not usually just one, it’s many, many. And so that’s because once the goods hit the American market, they’re gonna try and market it in many different ways. If we can, I know it sounds hard, but it’s not. If we can stop those goods at the Chinese border, where before the ship leaves the bay, then you’re not gonna have that, then the water is gonna be

40:39
closer to the beginning of the faucet and not when it’s hitting the sink and you gotta clean up the whole bathroom. So walk me through this process. Let’s say I see knockoffs on Amazon. First of all, how do I find out who’s responsible and then how do I go after them? Sure. So when you see knockoffs on Amazon, there’s many different ways to figure out who’s knocking them off. One way is to subpoena, you can see actually subpoena Amazon and get the

41:08
the names of the actual manufacturer, you can do some, and sometimes our Chinese consul does this because they’re very inexpensive, is they can do research in China to see where the goods are actually emulating out of by looking at the customs orders, because the goods have to leave China. So that has never been a huge issue to find out who’s actually manufacturing the goods, or you can work through, again, through Chinese consul that they call

41:37
the manufacturing you’re working with and either find out it’s them or it’s their brother or it’s, and you get the notes both back in Mandarin and English. So anyway, that has never been a huge issue that we’ve encountered finding out who the infringer actually is. Then the next thing you would do is you would make sure you have some intellectual property rights and you would have Chinese console, usually through telephone calls, although they have offices in pretty much

42:07
every major city, but they virtually door knock and kind of read them the riot act. And that usually does a trick. Again, if you never, from a Chinese manufacturer perspective, and I’m not a Chinese manufacturer, but I think general human instinct is why would I continue trying to knock off this person if

42:36
if there’s resistance. Like generally it’s a wake up call. And knowing that they could be sued in China and really, I mean, we’re not telling them what the budget of our client is, but that they really might see legal ramifications in China is enough to scare them away. I see. So this sounds really intimidating to me actually. let’s say I would contact you and you…

43:02
You have connections with the Chinese console and you’ve actually had factories stop manufacturing and knockoffs. Yeah, a lot. Okay, interesting. But you know what also happens Steve is, is on the opposite side, China is a first to file country. So what Chinese manufacturers or agents will do is sometimes when they’re going to knock off the product and they’re serious, they’ll file the trademark or the copyright first.

43:31
So they’ll file it before you ever thought about it. And then you don’t have those rights. I see. So since it’s that way, it seems like if I have a design in mind before I even give it to a potential manufacturer, and I’m pretty sure I’m going to sell it, I would get the copyright and trademark for it. Is that what you’re suggesting? I think that’s an excellent idea, yes. OK.

43:55
But can I do it even if I don’t have the actual product in hand? Can it be like a drawing? know, like, okay. So the idea is it’s not that different than anything else is if you wait and then it becomes a problem. Well, it’s a very expensive process and it’s very, it’s very uncertain. If you look at it like, all right, I’m thinking about bringing this product to market or

44:21
I’m in market and it’s successful, but I want to protect it. And you call someone like me, we’re going to walk. I can look at what marks have been filed. I have the software to look at what’s been filed in China. And so I can tell you, you know, we can start working on a strategy and it’s extremely well-cost almost. It’s part of the initial console, but, but, um, once again, the cat is out of the bag. becomes really difficult. And if you see someone’s,

44:51
take in your trademark, well, you know, even if you haven’t seen any action so far, you might want to kind of bat down the hatches because you might be seeing something coming in in near future.

45:06
So guess it’s real. I’m not saying everyone has to do this. I’d say it’s a case by case basis. again, ultimately you have to, your students have to ask themselves, what kind of Amazon seller do I ultimately want to be? Is this a, don’t want to my day job and I just want to sell a few dozen a day and maybe take a vacation? Then maybe,

45:36
that’s not important. Do you want to grow your brand and potentially even sell it to a larger conglomerate? Well, this is all the stuff that you better be doing because otherwise you’re not going to be able to do. Right. Yeah. And I would imagine that most people want to start their own brand and not just make, I mean, maybe their initial goal is to make a couple bucks here and there, but the end goal is always to create something that’s large. So I mean, I, that’s, that’s generally.

46:05
you know, got to be in it to win. So let’s wrap things up here. So I’m going to try to summarize and you just correct me if I’m wrong. It sounds like patents for inventions might not necessarily be the way to go. If you have a very low budget, right? Because it’s expensive to file and it’s expensive to enforce and it’s more complicated to enforce, right? Because I imagine there’s all these intricacies to it. Trademark is a must have.

46:34
just for Amazon brand registry, and it’s generally easier to enforce. And in terms of designs, copyright is the way to go because it’s cheap. You said it was like 60 bucks. And it’s much easier to enforce a design than it is a patent. it should be cheaper in theory if you ever go to litigation, right? Yes. mean, I think the threat of litigation is daunting. Like if you’re on the other side of that, it’s going to put up someone’s antenna. OK.

47:04
And then finally, if you want to stop copycats or knockoffs in China, we just talked about China here. At the source, you should get the intellectual property rights in China. And I guess we’d have to go through a lawyer like you who has some connections with the Chinese consulate to get them shut down or threatened. Is that? Absolutely. Okay, it’s always good to have. Again, I started by doing it myself, through some protocols or some treaties we have. But I quickly realized it’s important to have

47:34
relationships in China, and that you as the Amazon seller client have the relationship with the consul in China, who is on their base out of San Francisco. It’s not like it’s daunting to talk to them or intimidating. Okay. And then cost wise, I think you quoted something like at least $6,000 for patent copyright is in the hundreds of dollars, I should say. And then intellectual property rights in China, you said like under $1,000.

48:04
Under $1,000 per filing. Yeah, of course. And our total TM package for trademark runs about $1,000 per trademark. But that’s the entire process. Right. And that includes monitoring also, right? It includes monitoring through the process. Okay. Well, Steve, that was kind of eye opening. I didn’t realize you could shut people down in China. If anyone needs to protect their rights, where can they contact you?

48:34
Sure. You can contact me at SWEIGLER at EmergeEMERGEconsole.com or just go to my website, EmergeConsole.com or I always forget my telephone number. You can always call me at 720-480-8204 or 1888-EMERGE0.

49:03
That’s 1-888-EMERGE-0. We always offer a free consult. I love to learn about you and your businesses. Sometimes it might be like, let’s wait and hold, potentially because you’re too early stage or there might be a better fit for you. But I love if you ever think that you wanna grow a brand or grow an Amazon business, please give me a call. Awesome. Well, thanks a lot, Steve. Thank you, Steve.

49:35
Hope you enjoyed that episode. Now, before I met Steve, I was under the impression that not much could be done to prevent a factory from stealing your idea unless you spend an ungodly amount of money. But it’s good to know that there are ways to fight back directly in China with the right connections. For more information about this episode, go to mywebcoderjob.com slash episode 341. And once again, I want to thank Clavio, which is my email marketing platform of choice for e-commerce merchants. You can easily put together automated flows like an abandoned card sequence, a post purchase flow, a win back campaign.

50:03
Basically all these sequences that will make you money on autopilot. So head on over to mywifequitterjob.com slash KLAVIYO. Once again, that’s mywifequitterjob.com slash KLAVIYO. I also want to thank Postscript, which is my SMS marketing platform of choice for e-commerce. With a few clicks of a button, you can easily segment and send targeted text messages to your client base. SMS is the next big own marketing platform, and you can sign up for free over at postscript.io slash dv.

50:30
That’s P-O-S-T-S-C-R-I-P-T.I-O slash Steve. Now we talk about how I use these tools on my blog. If you are interested in starting your own eCommerce store, head on over to mywifequitterjob.com and sign up for my free six day mini course. Just type in your email and I’ll send you the course right away. Thanks for listening. Thanks for listening to the My Wife Quitter Job.

50:51
where we’re giving the courage people need to start their own online business. more information, visit Steve’s blog at www.mywifequitterjob.com.