Welcome to the Ultimate Business Owner’s Handbook: Legal Strategies for Success from a Business Lawyer, your comprehensive guide to legal strategies for business formation, compliance, and growth.
As a business owner, it’s crucial to understand the legal aspects of running a successful company.
In this handbook, we’ll share our expertise as lawyers and business owners to help you navigate the complexities of business law and intellectual property rights, while also introducing you to the concept of a fractional general counsel.
In this section, we will introduce the purpose of the Ultimate Business Owner’s Handbook and explain what kind of businesses will benefit most from the information it contains.
Additionally, we will introduce the concept of fractional general counsel, what it is, and how it can benefit your business.
Our goal with the Ultimate Business Owner’s Handbook is to share our knowledge and experience as business lawyers, business owners, and entrepreneurs. By addressing the unique needs of growing businesses and startups, this guide empowers entrepreneurs to navigate the legal landscape with confidence, ensuring the success and longevity of their companies.
This guide will cover a variety of topics such as business formation, protecting intellectual property (trademarks and copyrights), contracts, recommendations on tools to help businesses meet legal and compliance needs, and the benefits of engaging with transactional and litigation services.
As you explore the handbook, you’ll gain a deeper understanding of the legal aspects of running a business, empowering you to make informed decisions that protect your company and support its growth.
With the right guidance from an intellectual property lawyer or business lawyer, you can confidently tackle challenges and seize opportunities in today’s business environment.
Dive in and discover the expert strategies that will help you build a thriving, legally compliant business!
The types of businesses that will benefit from our guide include:
These businesses are in the growth phase and need expert guidance on various legal and compliance matters to ensure their continued success.
If you fall into these categories, the Ultimate Business Owner’s Handbook is tailored to meet your unique needs. We’ll help you navigate the legal landscape, address pressing concerns, and outline strategies to safeguard your business’s future.
While the core content is geared towards businesses with $1 million to $5 million in annual revenue and funded startups, the Ultimate Business Owner’s Handbook can also benefit other businesses such as:
For new businesses and startups without secured funding, you’ll find valuable information here that can guide your initial steps and set you up for long-term success as you lay the groundwork for your company.
Businesses with annual revenues between $5 million and $20 million can also find valuable insights in this handbook as they grow and expand.
Businesses with annual revenues more than $20 million should consider hiring an in-house legal professional. This option will not only be more practical, but it will be better suited for addressing the needs of a company that size.
If this is you, we’re still happy to work with your inside team when you have overflow work or other specific tasks our firm might be best suited for.
The Ultimate Business Owner’s Handbook not only covers essential legal topics but also introduces you to the benefits of working with a fractional general counsel.
Many business owners are familiar with the concept of a fractional CFO (a part-time financial expert who offers financial management and business consulting services).
A fractional general counsel is a similar idea applied to the legal industry. These professionals provide ongoing legal services and consultancy, helping businesses navigate the legal landscape without the need for a full-time, in-house legal expert.
Benefits of fractional general counsel include:
By partnering with a business lawyer who understands your industry and your company’s unique needs, you’ll gain a valuable ally in your quest for success.
As a business owner, identifying and addressing legal issues is crucial to safeguarding and growing your business. However, working with traditional legal services can present challenges that may hinder your business’s progress. These challenges include, but are not limited to:
In this section, we discuss these common challenges business owners face when working with traditional legal services.
Many business owners are hesitant to work with and hire a business lawyer (or any kind of lawyer) due to potentially high legal fees, particularly if they have never worked with one before.
This unpredictability can deter some business owners from seeking legal assistance, which could expose their business to various risks.
One possible solution to this issue is to choose legal service providers that offer clear pricing and billing.
For example, some law firms provide flat fees, capped fees, or subscription-based services, allowing you to better manage your legal expenses and receive continuous legal support tailored to your business’s needs.
When running a business, “time is money”.
Slow response times from traditional legal professionals can hinder your ability to make crucial decisions and move forward with your business operations. It is vital to work with a legal expert who understands the importance of timely communication and is committed and able to provide the support you need promptly.
To overcome this challenge, consider establishing clear communication guidelines and expectations with your legal service provider from the onset of your engagement.
This includes defining response times for different types of inquiries, setting regular update meetings, and agreeing on communication channels. By fostering a strong attorney-client relationship, you can ensure greater responsiveness and regular communication, allowing you to make well-informed decisions without unnecessary delays.
Traditional legal services can sometimes be inflexible and reactive, with lawyers providing advice after problems emerge. This approach can be detrimental to your business, as it does not allow for proactive planning and risk mitigation. Ideally, your legal counsel should be proactive in identifying potential legal issues and addressing them before they escalate into significant problems.
Additionally, when you engage with a traditional lawyer, you might find that they offer a one-size-fits-all approach to legal services without considering the unique needs and goals of your business. This inflexibility can lead to poor outcomes and missed opportunities for growth.
To tackle this issue, look for legal professionals who are willing to understand your business’s specific needs and customize their services based on those needs. By working closely with you to comprehend your business and its unique challenges, a flexible legal counsel can offer proactive solutions that align with your objectives and support your long-term success.
In the evolving landscape of legal services, Fractional General Counsel has emerged as an innovative solution that offers a variety of benefits including:
This service model not only addresses the common problems associated with traditional legal services but also provides additional advantages that align with the strategic growth of your business.
Fractional General Counsel services are typically offered on a subscription basis. This model not only provides predictability in terms of legal expenses, but it also ensures you have continuous access to legal expertise. Depending on the needs of your business, the subscription can be customized to include a range of services, from contract review and negotiation, to compliance management and strategic legal advice.
Additionally, a subscription-based model provides the flexibility to adapt to your changing business needs. As your business grows and evolves, your Fractional General Counsel can adjust the scope of services to ensure your legal requirements are always met. This model ensures you have the necessary legal support at every stage of your business journey.
Another key benefit of engaging a Fractional General Counsel is the opportunity to develop a strong attorney-client relationship. This relationship is built on trust, regular communication, and a deep understanding of your business.
When you Strong Attorney-Client Relationship work with a Fractional General Counsel, you have a dedicated legal advisor who becomes an integral part of your team. They take the time to understand your business, its goals, and its unique challenges. This relationship allows for a more personalized service, tailored to the specific needs of your business.
The strong attorney-client relationship also fosters enhanced communication. Your Fractional General Counsel is always accessible, providing you with the advice and information you need when you need it. This level of responsiveness can help you navigate complex legal issues with confidence and ease.
Unlike traditional reactive legal services, Fractional General Counsel operates on a proactive basis. This approach allows businesses to avoid potential legal issues, mitigate risks, and make informed strategic decisions.
Proactive legal services involve continuous monitoring and assessment of your business environment, allowing for timely identification and management of potential legal risks. Instead of waiting for a problem to arise, a Fractional General Counsel is consistently engaged with your business, providing ongoing advice and guidance.
This approach can lead to significant cost savings, as it can prevent expensive legal disputes and compliance issues from developing in the first place.
To understand the varied legal needs of businesses and how fractional general counsel can help, let’s take a look at some examples using three different client avatars. Each of these businesses, Sarah’s e-commerce business, John’s manufacturing company, and Emily’s tech startup, have unique challenges and requirements in the legal landscape.
Operating in the digital marketplace, Sarah’s e-commerce business faces a unique set of legal challenges. With the evolving legal landscape of online commerce, her business must navigate issues such as online contracts, data privacy, cybersecurity, intellectual property rights, and consumer protection laws.
John’s manufacturing company faces legal challenges including regulatory compliance, labor and employment issues, and contracts with suppliers, distributors, and customers. He must also ensure his business complies with a wide variety of regulations, including environmental standards and safety laws.
Emily’s tech startup, and its technology, has its own unique legal needs. Her legal needs are vast and complex from protecting her intellectual property to securing venture capital, as well as navigating technology licensing agreements. Like Sarah, she has to navigate and manage data and privacy concerns.
We’ve designed each chapter in the Ultimate Business Owner’s Handbook to serve as a roadmap for navigating the complex legal landscape of running a business. Let’s take a sneak peek at what lies ahead, and how our client avatars, Sarah, John, and Emily, will illustrate the key points in each chapter.
Chapter 2: Business Formation 101 focuses on the legalities of starting a business. We’ll delve into topics such as choosing the right business structure, registering a business, and the legal requirements that come with these decisions.
Chapter 3: Essential Contract Strategies for Small Businesses provides insight into the world of contracts. From drafting and negotiating agreements to managing contractual disputes, this chapter covers essential strategies that can protect your business and its interests.
Chapter 4: Building a Legally Strong Brand explores the importance of safeguarding your business’s identity. We’ll discuss intellectual property rights, including trademarks and copyrights, and how these can protect your brand’s unique elements.
Chapter 5: Mastering Compliance: Recommended Tools and Practices aims to help you navigate the landscape of regulatory compliance. This chapter will guide you through the necessary tools and practices that can ensure your business meets its legal obligations.
Chapter 6: Litigation & Enforcement Services provides an overview of what to expect if your business faces litigation or needs to enforce its rights. This chapter offers strategies on how to handle these situations effectively and protect your business.
Chapter 7: Subscription Legal Services & Working with Tingen Law provides an overview of our unique legal service offerings and how we can assist your business in its legal journey.
Our client avatars Sarah, John, and Emily will serve as guiding characters throughout these chapters. Each business owner will illustrate the unique legal challenges their businesses face, and how the strategies discussed can be applied in a real-world context.
In Business Formation 101, we will use Sarah’s e-commerce business as a case study to demonstrate the steps involved in starting a business. John’s manufacturing company will help illustrate the intricacies of contract negotiation in Essential Contract Strategies for Small Businesses. Emily’s tech startup will serve as a prime example of the importance of protecting intellectual property rights in Building a Legally Strong Brand.
Mastering Compliance will use all three avatars to highlight the importance of regulatory compliance in diverse business sectors. In Litigation & Enforcement Services, we will delve into potential legal disputes each business owner could face and how they could navigate such situations.
Finally, Subscription Legal Services & Working with Tingen Law will use each avatar to demonstrate how our services can be tailored to meet unique business needs, ensuring a strong and proactive legal support system.
When launching a new venture, one of the most critical steps is choosing the right structure for your business.
This decision determines not only how your business will be run, but also the kind of legal protection you’ll have and the way your business will be taxed.
This section will act as your guide through the essentials of business formation, providing insights into legal structures, tax designations, and more.
A basic understanding of business formation is key to ensuring the successful launch and operation of your business.
It serves as the foundation of your entire operation and directly influences every other aspect, from taxation to the level of personal liability you’ll assume.
In fact, choosing the right business structure may even help your business qualify for certain funding opportunities that are specifically designed for specific business entities.
There are several types of legal structures, each with its own advantages and disadvantages.
The decision will impact your personal liability, taxation, and the cost and complexity of running your business.
Choosing the appropriate one for your business requires understanding each structure and how it aligns with your business needs.
When setting up your business, another critical decision is selecting the right tax designation. NOTE: your legal structure and tax designation do not always match.
While this section provides helpful information, we recommend you speak with an accountant to ensure you select the appropriate tax designation.
Limited Liability Company (LLC) is considered the most popular business structure for small to medium sized businesses. This hybrid structure offers the operational simplicity of a partnership or sole proprietorship and the personal liability protection of a corporation.
Here is a detailed look at what comes with an LLC:
Corporations are unique with their clear separation of ownership and control, which results in limited liability for shareholders. This legal structure is designed to exist perpetually, independent of its shareholders, making it a great choice for businesses aiming to attract investors.
To help you understand how the business legal structure can influence the operations, growth strategies, and legal obligations of your venture, let’s consider two client avatars: Sarah and Emily.
In both examples, the choice of business structure is influenced by the nature of the business, the plans for growth, and the degree of formality the owner is prepared to undertake.
Sarah is an entrepreneur looking to establish a home décor business. She wants to run her business without partners and aims to sell her unique creations at local markets and online.
In Sarah’s case, an LLC would be an ideal business structure.
Sarah’s business model is straightforward. She’s not looking to attract investors, and her growth plan is organic, rather than ambitious scaling.
An LLC would be a perfect fit for Sarah’s business needs. It provides her with personal liability protection, meaning her personal assets would be protected from any business-related debts or lawsuits. It also offers her the ability to run her business without the formalities and complex requirements of a corporation.
Sarah would also have the option to choose how her LLC is taxed. For instance, she could elect to be taxed as a sole proprietor, allowing business profits to flow directly to her personal income, avoiding the double taxation scenario faced by corporations. Another option she has is to be taxed as an S Corporation, potentially saving on self-employment taxes.
Emily is planning to launch a tech startup and envisions growing her business with the help of external investors. She expects her company will need substantial capital investments and plans to issue shares in exchange for funding.
For Emily’s needs, a corporation would be the most appropriate business structure.
Incorporating allows Emily to sell shares and raise the capital needed for rapid scaling. It also provides a strong layer of personal liability protection and allow for unlimited growth potential. The clear distinction between personal and business assets offered by a corporate structure safeguards Emily’s personal assets from business liabilities.
Emily must also decide whether to form a C Corporation or an S Corporation. While an S Corp can provide tax advantages, it has restrictions on ownership that might not align with her venture capital objectives. A C Corp, while subject to double taxation, provides more flexibility for attracting a diverse range of investors.
When it comes to running a business, compliance is not just a recommendation—it’s a necessity. Each business structure, from sole proprietorships to corporations, carries specific legal and tax obligations.
While this section highlights key compliance requirements for different business structures, we recommend partnering with a fractional general counsel or business lawyer. That way you can ensure your company meets the appropriate compliance requirements.
There are certain requirements that you will encounter no matter what business structure you have. Here are universal compliance requirements you will need to ensure you address:
In many ways, sole proprietorships and general partnerships enjoy relatively simple compliance requirements. These business types don’t have to hold annual meetings or record minutes. However, the owner(s) must report business income and expenses on their personal tax returns.
Though simpler in structure, these businesses can still encounter more challenging compliance requirements, especially regarding local licenses and permits or dealing with any business-related disputes. They can greatly benefit from a business lawyer’s guidance in these situations.
While the Limited Liability Company (LLC) offers a flexible business structure, but there are still compliance factors to consider. LLCs need to file an annual report in most states and should maintain a clear separation of personal and business finances to protect and maintain their limited liability status.
Moreover, if your LLC has multiple members, a well-drafted Operating Agreement is crucial. It provides clear guidance on how the company is run and outlines what happens if a member wants to leave the business.
Corporations face the most rigorous compliance requirements.
They must hold regular meetings, record minutes, issue stock and maintain stock transfer ledgers, and adhere to the bylaws. Moreover, corporations must file an annual report, pay annual fees, and ensure their financial activities are transparent to shareholders.
Corporate compliance can be complex. We highly recommend partnering with a fractional general counsel or business lawyer to ensure that your corporation not only meets its current obligations but also anticipates future legal and regulatory shifts.
Nonprofit corporations and B Corps also have specific compliance requirements. For instance, nonprofits must ensure they operate exclusively for charitable, scientific, religious, or other approved purposes to maintain tax-exempt status. B Corps, on the other hand, must consider their broader social and environmental impact.
While not as complex as the regulations facing corporations, expert legal advice can be invaluable to B Corps and Nonprofits. Having legal counsel will assist in navigating the specific compliance requirements and preventing issues that will result in you losing your tax status.
Understanding where to file your business is crucial in the formation process. It can have lasting implications on your tax liabilities, legal responsibilities, and even business opportunities.
Let’s dive in!
In short, yes, it absolutely does. Where you choose to file your business significantly impacts your legal and financial landscape. The chosen jurisdiction determines your tax obligations, filing fees, privacy protections, and even the corporate laws governing your business. Essentially, it shapes the legal framework within which your business operates.
A business typically has a registration state—the state where it’s legally incorporated—and a principal or headquarter state, where it conducts most of its operations. While these can be the same, businesses often operate across multiple states or have strategic reasons for incorporating outside their principal state.
To help illustrate how companies decide where to file, let’s look at our two client avatars, Sarah and Emily, again.
Sarah resides in Virginia. As the owner of an LLC, she’s not trying to raise capital from investors and doesn’t need the benefits of the Court of Chancery in Delaware.
Her requirements are straightforward – she wants an informal structure where she can quickly set up her business.
So, Sarah decides to register her business in Virginia, her home state.
In connection to this, she would put in her contracts, terms of use on her website, and all business interactions that any legal issues need to be addressed in Virginia, where she lives and her business is registered. This approach aligns perfectly with her strategy.
Emily also lives in Virginia but has a few more options.
She could file in Virginia, Delaware, or even Nevada. There could be various reasons to choose a state other than your home state.
Delaware is known for having a lot of benefits for corporations, as mentioned above.
Other states may have benefits as well.
For example, privacy benefits.
If Emily has an investor who values privacy and prefers a state like Nevada, that could be a good enough reason to file in Nevada.
It’s also possible that Emily or one of her investors has access to specific counsel or experts in a particular state.
Business isn’t just about legal strategies and compliance; it’s about the little, practical steps that keep the wheels turning. It’s these steps that often differentiate successful businesses from those that falter.
Whether you’re just starting out or have been around for a while, these practical tips will help keep your operation running smoothly.
While this sounds like a no-brainer, it’s crucial in any successful business and gets overlooked quite often. You may be surprised by the number of growing, profitable companies that can’t locate their legal documents or have neglected bookkeeping and taxes for years. Sure, your business might be ticking along fine for now, but these oversights can catch up with you and potentially jeopardize your operation.
In today’s digital age, there’s no excuse for disorganization. Services like Dropbox and Google Drive make it easy to keep all your essential documents organized in one place. Forget the shoebox—scan your documents and store them electronically. This not only ensures you can access them at any time, but it also simplifies sharing these documents with your lawyer, accountant, or banker. Not to mention all the space you’ll save in your office!
When starting a business, it’s common to hit the ground running, with structure taking a back seat to action.
However, as you grow and bring on more people, implementing formalities and standard operating procedures becomes vital. Not everyone can read your mind—having set processes in place makes it easier for your team to understand what needs to be done and how to do it without having to go to you for clarification or a giant mess.
For LLCs, consider at least an annual meeting to reflect on your operation, aligning with your operating agreement and ensuring your business continues on the right path.
For corporations, maintaining formalities is not just a recommendation, it’s a requirement to preserve your limited liability. Regular meetings, minute keeping, and clear record storage are all part of this.
Whether you have a business lawyer or fractional general counsel, regular or annual check-ins are essential.
For example, at our law firm, we have built regular check-ins into our fractional general counsel service. In these meetings, we discuss the significant legal and compliance issues you’re facing and plan for the next six months.
In between these semiannual meetings, we touch base to talk about these topics, assess progress, and adjust the course as needed. At the next six-month meeting, we evaluate where we’re at and prepare for the next stage. Our goal in this partnership is to organize your business for growth, setting you up to reach the next level.
We recommend using this structure, or something similar, in check-ins with your legal counsel.
An essential first step in starting a business is creating well-crafted, legally sound contracts.
Contracts are a critical part of everyday business, serving as the backbone of all business relationships.
They establish the rights, obligations, and expectations for all parties involved. This helps avoid misunderstandings that could lead to costly disputes in the future.
This section will walk you through common contract problems, contract types, and how to create a contract strategy that will set your business up for success.
As you read this chapter and determine what contracts and strategy your business needs, here are some questions you should consider:
While our recommendations below are a great resource for contract strategy, you should still consider involving a business lawyer or lawyer with business experience in this process.
You’re probably asking, “Why should I involve a lawyer? Is it really worth spending the money on that when I already have the contracts I need?
The short answer is, absolutely. But before we get into the details of contract strategy, let’s look at why working with a lawyer can be a necessary and strategic business move, rather than merely an option.
To provide a practical understanding of the importance of contracts, let’s look at one of our client avatars, a manufacturing CEO named John.
John comes to his lawyer with a clear set of needs:
John’s situation illustrates the varied contract needs of a typical small to mid-sized business owner. As we explore contract strategy further in this chapter, we’ll review John’s case again.
Why are contracts essential for your company? Contracts are the lifeblood of any business. They set expectations and create the rules of engagement between companies, customers, employees, and suppliers.
Contracts are tools and assets that should support your business’s needs and help streamline your sales process, not hinder them. In the busy world of business, you need several types of contracts to operate smoothly and protect your interests.
If you’re an agency, your contracts are vital for defining the scope of work, timelines, responsibilities, and importantly, the ownership of intellectual property. Agency-client contracts often include confidentiality and non-disclosure clauses to protect sensitive information shared during the collaboration.
In the construction industry, contracts take on a whole new level of complexity. You’ll deal with a wide array of agreements such as construction contracts with clients, subcontractor agreements, and supply contracts, among others. These contracts are critical for clarifying project specifications, setting quality standards, determining payment terms, and managing potential disputes.
Different industries have different contractual needs:
Tech companies need to prioritize contracts focusing on intellectual property rights, software licensing, and user agreements.
In retail, agreements related to supply, distribution, and returns are critical.
Consulting firms need detailed service agreements outlining the specifics of the consultation services provided, payment, and confidentiality.
Remember, it’s not about having a contract; it’s about having the right contracts. Your contracts should be as unique as your business, reflecting your specific needs, and addressing industry standards. Crafting these essential contracts ensures you’re not just going with the flow but actively protecting and steering your business towards success.
When it comes to contracts, an variety of potential issues can cause issues.
Below, we list some of the most common problems and concerns business owner’s have shared with us regarding contracts as well as our answers to those concerns.
A: Yes, we believe it is worth it (and not because we are business lawyers who need to make a living). Business owners often question the return on investment when hiring a lawyer, especially when things appear to be running smoothly. However, being proactive with legal matters is key and can save you money.
The money spent on a lawyer today can save you significant costs down the line by preventing and properly handling expensive legal disputes. A good business lawyer can help you understand potential legal risks, update your contracts, and create a contract strategy that meets your needs.
A: This is a common concern among business owners. No one wants to slow down the process that makes them money.
However, with a solid contract strategy in place, legal oversight does not have to slow down your sales process. In fact, it can facilitate sales by ensuring that your contracts cover everything you need, when you need it. This prevents last-minute scrambling for a new contract when something comes up which delays and complicates your sales process.
This preemptive planning can make negotiations more efficient and help you avoid potential obstacles.
A: Some business owners worry that incorporating contracts might damage existing client relationships. Contrary to this belief, a well-drafted contract can actually enhance client relationships. It helps set clear expectations, fosters transparency, and provides a framework for resolving disputes.
A: Businesses often use a variety of contracts for the same purpose for years, but with different language. This can lead to confusion and potential legal risks.
Start by standardizing your contracts. Without standardizing and organizing them effectively, it is extremely difficult to understand what your liability risk is. A lawyer can help with that process and provide guidance.
Standardizing your contracts also simplifies future consultations with your lawyer and reduces costs associated with getting a legal opinion on individual contracts. This means more money saved for you and less meetings on your schedule.
A: Liability issues often arise when businesses use outdated or poorly drafted contracts.
The best way to address this is to update your contracts regularly to reflect changes in laws, regulations, and business needs.
A business lawyer, or lawyer with business knowledge, can assist you with this. Working with them will help ensure your contracts are legally sound and protect your business interests as time goes on.
A: The best way is by being proactive and establishing a strategic plan with your lawyer.
By being proactive, you can overcome most contract problems. Remember, your contract strategy should consider your business’s needs and help streamline your sales process.
Additionally, by planning in advance how to negotiate, sign, and store your contracts, you can remove potential obstacles that could harm your relationships with clients.
Let’s visit our client avatar, John. This example will help to illustrate some common contract challenges and how they can be effectively addressed.
John wants to avoid legal complications, gain more control over contracts and client relationships, delegate sales tasks, and protect his intellectual property. However, he faces problems like urgent legal needs, delays in the client sales process, and concerns about protecting his intellectual property rights.
John’s first step in tackling these issues is proactive planning. Instead of waiting for an urgent legal need to arise, John consults with his lawyer ahead of time, laying out a plan to streamline the client sales process.
This approach allows him to prepare for large-scale business deals, reducing potential delays and ensuring that he’s ready for any legal challenges that might come his way. This kind of strategic planning can transform once-in-a-lifetime opportunities into more frequent occurrences.
Next, John decides to implement a standard operating procedure (SOP) for handling contracts. This SOP ensures that his company always initiates the contract process, thus setting the terms of the agreement right from the start. This approach accelerates the sales process, reducing back-and-forth discussions about whose contract to use.
The final part of John’s contract strategy is educating his sales leadership about the critical provisions in their contracts. By understanding which elements are non-negotiable, like protecting the company’s intellectual property, the sales team can negotiate more effectively and safeguard the company’s vital interests.
John’s strategic approach to contracts not only expedites his sales process but also fortifies his intellectual property protection, minimizes liability through standardization, and enhances clarity in client relationships.
This strategy fosters trust, as clients see that John’s company is well-organized and thorough in its legal processes. By taking the time to plan out his contract strategy, John is better prepared for the legal challenges that his company might face, and his business relationships are stronger because of it.
Creating a practical contract strategy is a multi-faceted process. It’s about proactively identifying your business needs, understanding essential legal issues, and establishing a streamlined, organized approach to contracts. This not only safeguards your interests but also fosters trust among your clients and business associates.
The first step in forming a practical contract strategy is identifying your business’s contract needs. You should consider which contracts your business requires in advance and reassess if you already have the necessary contracts in place. This proactive approach allows you to address any gaps and retool your current contract process.
Different businesses have different legal priorities. While some may focus on the choice of law and venue, others may focus more on protecting intellectual property (IP).
On the other hand, reducing liability is a common concern among all businesses. Identifying your legal priorities helps you draft contracts that cater to your business needs without deviating from the industry norms.
When it comes to drafting contracts, the goal should always be to fortify your priorities while still fitting within the norms of your industry. This doesn’t mean there is no room for negotiation. On the contrary, being organized can often help you find terms that are favorable to both you and your client.
Having a Standard Operating Procedure (SOP) in place for contract execution is vital for a smooth, efficient process. An effective SOP might include training sales about the business priorities embedded in your contracts, providing clear communication about important contract terms, and establishing protocols for potential modifications to the scope of work.
Your contract SOP could be complex, but it should not be less comprehensive than the simple example shown below.
It should take into account all relevant factors, including utilizing efficient contract tools like e-signature services such as DocuSign, and having a system to track, manage, and store contracts after they’re signed.
Whether you’re launching a new business or growing your current business, your brand and intellectual property (IP) are the cornerstone of your company’s value.
Understanding the basics of IP is crucial for safeguarding your business assets, nurturing growth, and creating long-term value.
In this section, we’ll review and discuss how you can create, identify, and protect your company’s IP. We will also review how you can get the most value from your IP.
Intellectual Property (IP) refers to intangible assets that can be legally protected. They are typically organized under one of 4 categories: copyright, patents, trademarks, and trade secrets.
IP includes anything non-physical that you’ve conceived and created, such as your business name, logo, written content, business processes, proprietary technology, or your “secret sauce.”
In today’s digital age, intangible assets make up most of a business’s value. In 2020, 90% of the asset value of companies in the S&P 500 was considered “intangible.” The S&P 500 has a value of around $35 Trillion. This means that approximately $31.5 Trillion of the value of those companies didn’t physically exist.
IP can be notoriously challenging to figure out and quantify. The easiest way to determine your IP is this: when you strip away all the tangible assets like office furniture and computers, what you have left is your IP.
Your brand name, your website, your products or services, your business processes, all these are your intellectual property. They are the value add you bring to your customers. They are what set you apart from the competition. And as such, they are worth protecting.
The only real way to create significant value through intellectual property is to have a strategy in place. It may sound like more work, but having a strategy in place will ensure your IP is used and protected properly. As Winston Churchill said, “He who fails to plan is planning to fail.”
While there are many ways to structure an IP strategy, we recommend the four following steps:
We discuss these steps in greater detail in the sections below.
Creating an IP strategy is vital to building long-term value for your business. An effective IP strategy not only identifies and protects your intellectual property, but it also helps you make money.
Without a strategy, you lose or waste money due to other companies using your IP or because of missed opportunities to leverage your IP to make your company money.
Understanding the value of your intellectual property and how to protect it should be high on your priority list. Whether you’re a tech startup or a long-standing business, your IP is worth safeguarding and leveraging for your success.
Understanding and recognizing your intellectual property (IP) is the first step towards establishing your brand and business value. IP is more than just an idea or concept, it’s an asset you create and nurture as your business grows.
Creating IP is a process that goes hand in hand with the development of your business. IP is created when you take your unique business ideas and transform them into protectable assets.
This could be in the form of a unique product design that you’ve developed, the innovative software you’ve written, the engaging content you’ve created, the distinctive logo or brand name that identifies your business, or even the unique customer service method that sets your business apart from the competition.
Creating IP is not a one-time event, it’s a process. It’s about more than just inventing a product or service. It’s about creating value for your customers, value that can be protected and monetized for the benefit of your business.
Recognizing your IP can sometimes be challenging, especially since IP comes in many forms. These can include copyrights, trademarks, patents, and trade secrets, to name a few.
Identifying your IP involves recognizing the unique features or assets your business possesses and then classifying them under the correct type of IP protection.
For instance, a logo or business name can be protected as a trademark, a written piece of work or digital content can be copyrighted, an invention or unique product design can be patented, and a proprietary process or method can be protected as a trade secret.
Here is a framework to help you identify your IP:
Do you invent or innovate?
Original Works:
Your Brand Identity:
Guarded Processes:
Creating IP isn’t a one-time event; it’s a continuous process of identifying, nurturing, and protecting what’s uniquely yours. Your business is full of potential IP; it’s all about recognizing it and taking strategic steps to safeguard and use it.
In the digital age, where ideas float freely and imitations pop up like daisies, protecting your intellectual property is critical.
So, how do you protect your intellectual property?
You’re likely aware that in order to protect your IP, it needs to be registered. Some forms of IP have copyright and some limited protections as soon as they are created.
For example, the moment you begin to type on your computer or click record on a camera, you have copyright. Some trademark rights also begin with use. However, without registration, you only have limited rights and protections.
So, in order to get the most value from and the most protection for your IP they need to be registered. Registration is used for things such as patents, trademarks, and copyrights.
Other types of IP need to be protected through contracts and processes. A common example of this would be trade secrets that are protected through non-disclosure agreements (NDAs).
Before you spill the beans on your innovative tech, processes, or other trade secrets, ensure everyone signs an NDA.
It’s your first line of defense against potential idea theft.
Registering might feel like an additional and unnecessary chore on an already hefty to-do list, but in the long run, yes, it is worth it.
Consider this: in an age where every second sees the launch of a new startup, and where competition is fiercer than ever, do you want to risk your unique ideas?
By registering, you’re not just placing a “Do Not Copy” sign; you’re actively positioning yourself to take legal action if someone tries to infringe upon your rights. So, it’s not just worth it—it’s critical.
Yes. Imagine having a vault of gold but leaving the door open. That’s what it’s like having unregistered IP in a world that’s always watching and always waiting for the next big thing.
Contracts, especially those that deal with confidentiality and non-disclosure, ensure that the people you work with recognize and respect the value of your intellectual property.
Processes, on the other hand, provide a roadmap. They are there to guide your team on how to handle, use, and share the IP. This ensures that everyone understands how to handle and safeguard the company’s assets.
Additionally, if you run into any legal disputes, having well-documented processes (and contracts) can act as evidence, proving that you’ve done your due diligence in IP protection.
Every business is unique, and so are their IP protection needs. The kind of IP you possess, the industry you’re in, and the scope of your operations all play a crucial role in determining the best protection strategy.
For a software company, patents might be the way to go, while a media house would lean more towards copyrights.
If your brand name is what sets you apart, trademarks should be your focus.
And if you’ve got a groundbreaking process that’s your USP, consider locking it down as a trade secret.
Engage with professionals, preferably a law firm specializing in intellectual property, to evaluate and understand your specific needs. Listen to the experts, but also trust your intuition. It’s a combination of these that will guide you to the best IP protection for your enterprise.
Your IP strategy needs to include more than just identification and protection. You need to also use and leverage your intellectual property to make your company money.
Some ways to make money may be obvious or familiar to you:
Others may not be so obvious, but just as important:
When it comes to the protection of intellectual property, a crucial and often overlooked aspect is enforcement. Having IP rights is one thing, but actively defending and asserting those rights is a whole different arena.
In the world of IP, enforcement should not be an after-thought or reaction to infringement—it should be an integral part of your intellectual property strategy from the beginning. You need to be prepared.
Let’s take a look at what you can do to enforce your intellectual property claims.
While it might seem like a silly joke, there genuinely aren’t any designated “IP Police” constantly on the lookout for violations.
Yes, institutions like Customs and Border Patrol do monitor imported goods for counterfeit products and unauthorized use of trademarks. However, knockoffs can still be found on platforms like Amazon.
Here’s the hard truth: nobody is going to enforce your intellectual property rights for you. It’s a responsibility that you must take ownership of. Fortunately, there are tools and services to help support you, described below in the next section.
Now that we’ve talked about your intellectual property and how to protect it, let’s review some basic steps to creating a strategy for your brand and IP. These steps reflect the sections above and are a good place to start but are not a comprehensive list.
Step 1: Create & Identify
Creating IP is a process that goes hand in hand with the development of your business. IP is created when you take your unique business ideas and transform them into protectable assets.
Step 2: Protection
Once you’ve identified your IP, it’s imperative to shield it. Protection can span across processes, contracts, and formal registration. The big question: Which to choose? Well, why not all? While each business’s needs differ, a combination of these mechanisms often provides the most robust defense.
Step 3: Licensing & Monetization
Here’s where things get particularly interesting. IP isn’t just about safeguarding your business assets; it’s also about leveraging them for further growth. Think of your IP as potential revenue streams. Can you license out that patented tech? Can you monetize a unique process? The opportunities might be richer than you think.
Step 4: Enforcement
The reality of the IP world is stark. If you’re not going to defend your IP, no one will. It’s integral to be proactive in enforcing your rights, ensuring that the value you’ve cultivated remains yours alone.
Step 5: Legal Support
And here’s a little tidbit from the trenches: Having a legal ally can be a game-changer. While it may sound like a sales pitch to say, “you need a lawyer,” the depth and intricacies of IP often require expert guidance. As your business contemplates long-term value creation through IP, forging a relationship with a legal professional isn’t just recommended—it’s essential.
Step 6: Evaluation & Assessment
Building and maintaining an IP strategy isn’t a one-time task; it’s an ongoing investment. Just as a castle’s defenses need regular checks and updates, your IP strategy needs consistent attention.
Let’s look at two examples of IP protection with our client avatars: Emily and John. In the examples below we will look at their IP needs and what kind of strategy they should implement.
Efficient breach is a situation where people see your patents or contracts and use your technology or intellectual property anyways.
If you consult a trademark attorney and they suggest a name change, it’s worth considering. It’s a common recommendation that could unlock significant IP value.
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