November 2018 eNewsletter

Scott McGohan, CEO, McGohan Brabender

I am reading an interesting book named "Split-Second Persuasion: The Ancient Art and New Science of Changing Minds" by Kevin Dutton. It is slightly edgy, but has some really interesting concepts, especially regarding brevity. Walking people down a decision path with a truckload of information can actually educate them beyond a level of making an accurate, timely decision. In many cases we give people too much information, and they become numb and unable to make a decision.

There is a difference between persuasion and split-second persuasion. I heard a funny story about boxer Muhammad Ali. In 1975 on a flight in first class, a flight attendant asked him to fasten his seat belt. He refused, saying, “Superman don’t need no seatbelt.” The flight attendant replied, “Superman don’t need no airplane.” End of discussion.

The concept of persuasion depends on four key factors: simplicity (brevity), self-interest, confidence and empathy. All of these have to be executed swiftly and, if done correctly, can be very effective.

The simplicity component makes sense. The self-interest element does not mean it is selfish or self-serving. It means it’s easier to persuade someone to do something if they perceive it to be in their self-interest.

Confidence is easier said than done. You must know your stuff. Be clear with your agenda during a meeting. Know your audience and have empathy for each person in the room, and really listen. There is a reason why we have two ears and one mouth.

I learned this lesson the hard way. Several years ago I was meeting with a client. The CFO was important to the equation, but unfortunately I focused the entire meeting on him. I was proud of my attention to the numbers and my financial discipline. I was accurate and on target. I was right. I was dead right, and I lost the client. I completely overwhelmed the others with my proliferation of information and isolated a complete team of people. I didn't mean to come off as arrogant, but they are not clients anymore and I learned a lethal lesson.

Split-second persuasion is simply a clear consolidation of technology, ideas, culture and passion for what you do. Once that is strong in your message, you must tightly manage this into the discussion. Just like the flight attendant. Her answer was simple. It was self-serving for him and her role. She was confident. She had to be confident, it was Muhammad Ali. And lastly, she had empathy. His safety was important to her, her company and to the other passengers. She didn't need a binder or a brochure to move things.

Simplicity, self-interest, confidence and empathy; all of those things add up to solid preparation. It doesn't matter if you’re in sales or not. We all want people to do things, whether it’s important to us or to them. It is clear, and I mean very clear, that it is not “stuff” that people buy; it is knowledge. It’s much easier for people to see your knowledge through the words you say, not the words printed in a brochure.

Chose to move through the headwinds with a new discipline. If we do this right, there is a tailwind on the other side!

Joseph Robinette, Attorney, Wood + Lamping

One of the most important issues faced by business start-ups is choosing a name for the business that isn’t confusingly similar to another company’s name. The same is true for the names that are chosen for the start-up’s products and services. Infringing on another company’s trademarks can force you to change the names you have chosen, forfeit the goodwill you may have built up in those names, and possibly pay money damages.

A trademark is any word, phrase, logo, or other device used to identify products or services in the marketplace. It can be a brand name (Kleenex brand tissues), a slogan (“Got Milk?” owned by the California Milk Processor Board), a symbol (the famous Nike swoosh logo) or the name of a business itself (McDonald’s, Microsoft).

In many jurisdictions around the world, trademark rights exist only after a registration has been granted by the government to recognize those rights. China is the best example of this sort of trademark jurisdiction. In the United States, however, trademark rights arise from the date a mark is first used in commerce. No registration is required for the rights to attach. In other words, a business has legally enforceable rights in its trademarks as soon as it begins to sell products or services using those marks. These rights are referred to as “common law rights.”

Because the party who first uses a mark is generally in a stronger position in any later dispute, it is part of the due diligence of any start-up to conduct preliminary “knock-out” searches and more comprehensive clearance searches of all existing marks and URLs before it starts using any of its proposed marks. Failure to complete this step can result in cease and desist letters from other companies complaining of infringement, and the rejection of your trademark registration applications by the United States Patent and Trademark Office (“USPTO”).

Although common law rights alone are enforceable against later users, registering your trademark on the USPTO Principal Register will enhance your ability to enforce your trademarks in court. The registration also puts the rest of the country on notice that your mark is taken as to a particular class of goods or services. Registered marks and certain well-known marks widely recognized by the general public as a designation of source for certain goods or services (referred to as “famous” marks) provide their owners with more brand protection and have much greater significance in court than common law rights. Examples of famous marks include Google for internet search services and Walmart for retail services.

A trademark owner can sue in federal court to stop another business from using the same or similar trademark if the owner’s mark is famous, or if the use by the other business would cause potential customers to confuse one business or product with another. If the court finds that one business deliberately used a famous or distinctive mark belonging to another business, the infringer can be ordered to pay substantial money damages to the trademark owner. The court will usually find that a mark was deliberately copied if the mark was listed on the USPTO Principal Register at the time it was copied.              

One should bear in mind that while trademark law is the primary body of law governing the use of product and service names in the economy, other laws and rules come into play. Unfair competition law may also prevent a business from using a name that is confusingly similar or which creates a false impression as to the origin of a product or service. Your state’s corporation office will also disallow any business entity name that is too similar to one already being used by another corporation or LLC in the state.

In conclusion, start-up businesses should take sufficient time to carefully review all existing trademarks and URLs before using any proposed trademark. If the business has plans to distribute its goods and services broadly, pursuing federal trademark registrations to protect your brands is the best approach.