July 16, 2020
If you struggle with the legal side of your business and terms like “trademarks, copyrights, intellectual property, DBA, LLC, contracts” freak you out, then keep listening!
Today we’re talking to the incredible Rachel Brenke.
Rachel is a lawyer, MBA & Business Consultant, and entrepreneur. She helps entrepreneurs succeed in their business by being efficient, strategic, and legally protecting themselves. Her legal focus is on small business law including contracts, business formation and intellectual property such as copyright and trademarks. As an entrepreneur herself, with multiple successful brands under her, she wants to help others by spreading her philosophy of life over business.
This conversation is a GOLD MINE of information. It has taken us YEARS and THOUSANDS of dollars (and lots of mistakes) to learn what she drops in today’s show. We polled our podcast Facebook group (aka YOU!) to see what questions you wanted Rachel to answer and she dove DEEP on each one.
We dive into why and how contracts are set up, if you should have different contracts for different projects, and if contracts are state specific. Rachel also talks about intellectual property, copyrights, and trademarks. We even tackle questions about business formation, changing your business name, DBA’s, LLCs, and all that jazz.
If you’re an entrepreneur (and not a lawyer) this episode is SOLID GOLD information. Rachel’s such a joy and we’re so excited for you to learn from her today.
Rachel is a mother of 5 children as well as the mother of many brands. She has been an entrepreneur for over a decade and started in the fitness and online apparel industry. Rachel realized at the time that there was both a need and lack of premium information. She began to develop blog and social media posts of what she was researching and learning to help herself and others. It spiraled from there!
She ended up going to law school to add on to her arsenal of tools to help entrepreneurs and now has multiple online legal brands with one being very specific to photographers, one for fitness entrepreneurship, her own website for general entrepreneurship, as well as a podcast. In addition, she owns a law firm and is an intellectual property and contracts attorney.
Every action Rachel take in business, she wants there to be a benefit for her. She would rather prevent issues on the front end rather than playing clean up later on.
Contracts are the key corner piece of helping to protect you from liability, avoid talking to lawyers, and keep resources such as time, money, and energy into your business as opposed to into a lawyer’s pocket.
There are three major things that every entrepreneur needs to have, no matter what industry you are in. The first is liability insurance. The second is a business formation, whether it is an LLC or an S-Corp. The third is contracts.
Visualize these three things as hurdles between you and a potential issue. We want to insulate ourselves from liability as much as possible. Each of these helps protect your business, but it doesn’t protect in the way that you think.
Contracts can be looked at in a variety of ways. First, it will create a legal relationship between you and the client. Second, it is going to provide communication and put you both on the same page. The majority of legal issues that come into Rachel’s inbox often arise out of miscommunication. Contracts can help minimize miscommunications. Contracts work to provide a central meeting point where everyone can make sure you are literally on the same page. Think of it as an insurance policy in case there is a legal issue, but also as a way for you to communicate in one central point to your client what they are going to receive, what they have to do, and how the relationship is going to go. Third, contracts can work to be the “no man” for you. Often as entrepreneurs, we may want to tell a client or customer no because they are pushing beyond what was already agreed to. They want to say no, but they are scared too. We are scared of negative publicity, rejection, or not getting paid. A contract can be the bad guy for you, while you are still a fun business owner.
A contract is a key thing that we can look to prevent issues and to also take down the fire a bit so the issue doesn’t become an engulfing flame.
When conflict or issues arise, start with what you are legally entitled, then discuss what you want to do as a human being. You are the business owner, and at the end of the day, you can put some humanity into your business. The only way you can do that is if you understand your contracts.
Contracts are state specific. There are very specific provisions in contracts that can be heavily regulated by state. One that is pretty common across all industries is late payments. If you have a staggering payment schedule and your client hasn’t paid that installment, that percentage or amount that you can apply as a late fee is heavily regulated by state. This is just one example of why your contracts have to be state specific.
A more timely example is force Majeure clauses. These are also very regulated by state.
Should you have different contracts for different projects? This depends on the context. Are you working with one person on multiple projects or are you working with different people on the same project? What is the status of the person you are working with? Are you hiring a team member such as an independent contractor to come on for multiple projects? You may be able to get away with just one contract for an independent contractor and have it written so it covers multiple projects. It really depends on the situation you are in!
If the projects are not closely related, you are probably going to want to break it out into multiple contracts.
If you buy a contract template, you still want to have an attorney review it. There are state specific things that they will be able to fine tune.
Buying a contract template online and then taking it to a local attorney can be cheaper in the long run and result in a more comprehensive and in-depth contract.
Rachel strongly encourages that no matter whether you are starting from scratch or buying a contract template form to take to an attorney, look for somebody that has worked as an entrepreneur or has actively worked with folks in your industry and has proper intellectual property knowledge. No matter what you do for a business, you have a brand to protect. Intellectual property needs to be contemplated when drawing up contracts.
Intellectual property, or IP, is the intangibles that you have in your business such as your business name, logo, and branding graphics. Rachel really focuses her practice on copyrights and trademarks.
Within the intellectual property realm, you are looking to protect either your brand and/or your intellectual property. It could be your trade secrets, marketing assets, and content. It’s intangible because you can’t see it unless it is manifested in text.
Copyrights protect things such as your marketing assets, a book if you are an author, episodes of your podcast, music you put out, and photographs. It can also include your logo. Trademarks don’t inherently protect the actual artwork, but rather the connection of the artwork to a specific product or service. For example, when you hear “Just Do It” or see the Nike swoosh, you automatically think of athletic shoes. This isn’t protecting the swoosh but instead protects from someone else taking the swoosh and putting it on a non-Nike produced product. Trademarks help protect your brand and keep other people from benefitting from your brand or imparting a negative reputation on your brand. Trademarks are so important!
Entrepreneurs get so overwhelmed because trademarks are such a nuanced area of law. Once you get your feet under you as an entrepreneur and you are putting your product or service out into the marketplace, it is really important, especially in this day of technology, to trademark your business. You want to be the only one of you!
To recap, copyright protects the actual intellectual property assets, and trademarks protect it as a source indicator. It indicates where the source of product or services is coming from. This can be your business name, logo, or slogan.
Don’t blindly hand your stuff off to an attorney and be removed from the situation. You are the CEO of your business. This is your brand and this is what you are pouring all of your resources into. You need to be in tune with what is going on. Be empowered to make decisions. Don’t just blindly follow attorneys.
Contracts are a living, breathing document. As your business grows, you are going to change and your success is going to change. As you start making more money, your liability grows. Your contracts need to evolve and grow with you. This is why it is so important to have a good relationship with a good attorney.
Don’t DIY and be sure you are continually updating your contract as you grow because your business is going to change and so are laws. It’s not a one and done.
One of the downfalls of many entrepreneurs is that they pick a business name because they are excited about it and fail to do the proper research to see if it is already actively being used, a registered federal trademarked, and a registered state trademarked.
Before you even file for anything, identify the name you want and the product and service it will be connected to. Do the research not only in your state but federally as well. Just because your name is not taken at the state level, that is not enough! You need to search federally as well.
Before you fall in love with a name, do your research! Attorneys can also do this for you.
Once you have your name you can pick whether you are going to be an LLC or a Corporation. Do this as soon as possible! When you don’t take the steps to register your business as an LLC or a Corporation, you are personally liable for every action you take in your business.
You can amend your business name if you need to!
Rachel has one main LLC and has multiple DBAs under that brand. They are all connected to that one LLC but using different names on the frontward facing and marketing. If at any time she wants to add on, she can file or a new DBA.
You really have to stop and open your eyes and ears to what those that are more successful than you have done or are doing. Look to those around you that you look up to. Research and learn from them!
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Free checklist: https://rachelbrenke.com/freechecklist/
WASSUP FRIENDS. We’re Evie + Lindsey, co-founders of this wild partayyy called The Heart University. Our goal is to empower entrepreneurs to kick freaking BUTT in their businesses, dive down into the heart of their why and how, and serve you with all possible tools you’ll need to up-level your business game and CRUSH those goals of yours.
Whether you’re coming to an in-person workshop, joining our online course, or soaking up all the strategies via this blog or our podcast, we’re STOKED you’re here + can’t wait to see you out there kicking butt.
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