Josh Green has been offering his legal services for the last 10 years. He has seen a lot when it comes to business. In this episode, Josh talks about three of the most common issues he comes across with business owners. There is a lot that goes into starting a business. A lot of issues can be mitigated long before they become potential problems with the right planning.
This is In Your Business with Michael Sayre, a production of CUI Wealth Management. In this episode, we interviewed Josh Green with Green Legal Group. He went over three items he believes are important for every business owner to consider. Josh, go ahead and introduce yourself.
Josh Green. I started the law firm Green Legal Group. I started in 2013. It’s been the greatest decision I ever made, to be totally honest. We do a lot of things, but primarily what I do is I focus on small businesses and related issues. Really anything from starting a business to closing it down and everything in between. Just some background about me. I did my undergrad at BYU and got a degree in English. I went to Gonzaga, got a degree in law.
So, what drove you to start in law?
When I was still getting my undergraduate degree, I really loved reading and writing and persuasive writing. But as a career path, I needed to find a way to support myself and my family, so I started taking classes. There was a development class I took, and they kind of go through tests and different ways of determining what your strengths are. At the end of the day, I settled on law. I realized the things that I really love had to do with business, entrepreneurship, and intellectual property. Making business and helping businesses thrive. I am focused on helping others realize whatever dream they're having. That is the exciting thing; having someone come and tell me about their business and how excited they are, whether it is a food truck or a software or a service based. It's interesting because I may not be passionate about these things, but I'm glad other people are. All these different, diverse people doing diverse types of businesses, it is so inspiring. It really is the American dream kind of unfolding in front of me.
That is awesome. So, what would you say really drives you? What are the values that get you up in the morning and get you excited?
Yeah. So, there’s two things. My family. Like a lot of people, my family is my main reason I went out and into business for myself, right? Because if you know many attorneys most attorneys that work for big firms, they work long hours and they burn themselves out, in my opinion. And so, in starting my own business as an attorney. Legal service is businesses I realized I could do it differently. I could create an environment for those people who don't want to do the 90-hour weeks. They want to work 60, maybe you know, which is probably my average workweek and work hard. But go home and enjoy a quality of life. The life-work balance for me is really, important.
But the other thing is to create an environment where other people can come into my business and, whether it's a client or an employee, they could do the same thing for themselves. And so for my employees, I give them very much the same type of options that I've created for myself, so they can make it into whatever they want. Another thing that brings me to the office is making sure those people are taking care of. I mean, I really believe the way that I could make the world a better place is very locally. I'm not going to have any influence on the whole United States or even the whole state of Utah until I can make a difference in my community and here at my workplace.
If I could make a difference in the eight people that work for me and make a difference in their lives and then they pay it forward in the lives of my client's and help them get their business off the ground, they can then, In turn, do that for their employees and teaching them the same things that I've learned over the years over the last 10 years of doing this. How best to run businesses, what things work, what things do not work. And its things that I use in my own business. Things that I have seen others do in their businesses. I really do believe that business can it when done correctly and when run right can make a difference in people's lives and in the community.
Thanks for sharing that. Let me ask you, what do you think are some of the main things that are important for businesses to know and understand when they go into business?
There are three main things when a new person comes into my office, we touch on three main points, usually in the beginning. Most of my clients, business clients, the new ones that come to me. They come for my free audit. I tell people, "Hey, you can come in, I'll go through your entire business and I'll just audit everything. And I will say, “Here are some of the things that I would change or things the use of things that you should be doing"
When they come in, I talk about three things. The three things are the way you structure business especially if you have partners, making sure that contracts govern your relationships and
So, we will talk about number one. It can't tell you how many times I've had a person come in, and it's two years into this business agreement that they've got with some other person that's not in writing and they're trying to figure out how to get out. And there is a problem now, but there's nothing to protect them. There is nothing that governs the relationship. There is nothing that even tells a court or another third party what the ownership interest is. I would say sometimes it is people who are doing business with family. They think, "Oh, it's my brother. It's my dad" or, "it's my cousin. Someone I know and I like and we're never going to have a business disagreement." [It] doesn't usually work out that way on the back end, right? So, you know, for whatever reason. Obviously, there are some people they could be in business with their family or they could be in business and never have a problem.
Yeah, I have talked to a lot of people that are in handshake agreements with nothing in writing.
Well, for sure. The thing about Utah that is unique is there's a lot of good, trusting people here. What I honestly think happens is when problems arise. If the agreement is not in writing, it's human nature to have selective memory. We tend to remember the things that benefit us. We tend to forget the things that don't. When you're in a situation where now the business is struggling and we agreed to do this together and now I need you, business partner to come and put in some money that you don't have. Now, it becomes a hard thing, you know, or I took out this loan so that we could start this business. But now this business is not doing so hot, "I need your help paying the payment.”,” Well, that's not what we agreed.", "but we did."
I don't actually think that it's because people are inherently dishonest, that you need contracts, that governor a partnership arrangement. It's that people just over time forget, and they have selective memory about what the agreement actually was. So, when you're structuring your business, especially if you have a partner, get an operating agreement or a business agreement together. If you don't know the person, it's even more important. If you do know the person and it's your best friend or your family, I would say it's even more important than if it's just someone you don't know. And the reason for that is it bleeds into your personal life.
You got a partner, that you don't really know that well, and it was a partnership of convenience if that business relationship just sours. I mean, you don't have to see that person ever again if you don't want to. But it's really hard to do that dad. It is hard to do that with your brother. If you don't want to blow up everything else in your life, just get it in writing, get an agreement together, and it's really not that expensive. I typically don't advise people to just go online and grab something online that can have. There are things in there that sometimes don't apply to your business. Because most people don't have a background in the law, they'll go and agree to something that they didn't understand what it meant. But it was something that was written into this agreement that they just pulled off the Internet. Now that's what you're bound by.
Get what you want in the agreement put it in bullet points, and you could bring it to someone like me. You can have a partnership agreement that will govern that relationship moving forward so that if there is a dispute, you say, "OK, what does the agreement say? How do we figure this out?" In addition to looking at what you want that agreement to say, I'll go back, and I'll say, "What did you think about this? Did you think about that?" And I can help you put together an agreement that's going to protect both sides. It can doom your business from the beginning if you don't get it in place. Because once your business is running, it's hard to go back and now fill in the gaps with an agreement, people, especially if a dispute is already arisen
The second thing was I alluded to was just having contract govern your relationships? A lot of people, like you, said, we live in the handshake world. A lot of people believe "Hey, my word is my bond. That's how I do business" And there's nothing wrong with that. Like I said, most people here in Utah, especially have a lot of integrity. They wanted to right, they try to do right every day. They are very honest, but we have a short memory sometimes as people, and I think that's a human nature thing. But I think what contracts do, it keeps people honest. Anytime you are going into a relationship, you need to be thinking about, "How is this going to affect the rest of my business?"
I will just give you a quick example that will seem innocuous at first, but the implications are huge, and that relates to my third point, which is intellectual property. I had a client that came to me a few years ago and they said, "We're just trying to get things organized" so I started doing the audit. I just audited everything. And I said, "Who is this person?", "Oh, it is our web developer. They did do all our software and web development stuff." and I said, "OK, are they an employee or are they...", "No. They have their own business, but he's been with us since the beginning.", "Oh, where's the contract that governs that relationship? I mean, you know, it started a long time ago. He's just kind of always been around. There is no contract." And I said, "What exactly is he doing for you?" And what we came to realize is that he had done all of this work for them that was the backbone of their software product. And according to current copyright law, pretty much was a 50/50 owner of all their product.
The way that you protect yourself in that situation, when you're hiring an outside party to come in and do you work for you, is you have them signed a contract. At the very least, that says this is a work for hire so that anything that you produce for us belongs to us so Well, they never did that. And so we ended up having to spend a lot of money trying to get him to agree to basically assign over all the copyrights so that they could be the sole owner of their tech. Luckily in that situation, I was able to negotiate some kind of arrangement. It could have gone a lot differently if he had been maybe a little bit savvier or a little bit more dishonest or, thinking to himself, "Hey, I've been here for a long time. I deserve more. I want more" And there's still some wiggle room there it is, right that lawyers are good at parsing words, and making them try to meet means something else.
At the heart of it, the heart of the agreement should still be found in your in your contract. People always ask me, "Well, when should I be doing a contract? When is it overkill?" And I say, "look, any time you have a situation where you're not going to be able to function or your business is going to be severely impacted. If that person does not keep their obligations, then you probably need a contract." Let me give a couple of quick examples, and then we could move to the kind of the third point.
If you have a vendor agreement and this vendor supposed to supply 500 units a week of whatever so that you can keep up your current demand for your customers well, if they stop producing well, then you have to scramble to find another vendor. It causes delays. It makes customers angry. It's going to cause a lot of headaches and potentially thousands or more dollars. If there are delays in production. That is when you probably need a contract. You also need to talk about risk in that situation. Who bears the risk of loss once they ship the product? Who is responsible if that shipment gets destroyed or that shipment gets lost? Is your responsibility to pay on delivery or is it from the time that they ship? There are lots of those types of things in those types of arrangements that can really impact your business. You need to play that out and you need to have a contract that governs that.
Conversely, a customer transaction, you know, someone comes in and they are spending 20 bucks. Is it worth having a contract for the $20 transaction? Probably not, unless like a uh, I know all these trampoline parks were shut down right now. But all the trampoline parts, what is the first thing you do when you go into this trampoline park? You sign a waiver. You sign an agreement saying, If you don't get if you get hurt and it's not due to their gross negligence, you know their product is faulty or something. But you fall and you break your arm, you are acknowledging it's a dangerous activity and that that could happen and so you can't sue them. Even though people try, and then some of them were successful. But generally, that is what the waiver is for is to say, you're engaging in an inherently dangerous activity. It's because the resulting liability that could come from that activity is too high. And that's what I do with clients. I'll sit down and I'll say, "Okay, well, do you need a contract for this?" Well, maybe you do, but let's let's analyze it. Let's see what are you out if they don't keep their obligations or is there a liability reason why we need a contract? If no, then you probably don't need one. That's what I do in my audit.
Well, there's that saying, “you know what you know, and you know what you don't know, but you don't know that you don't know what you don't know”. And so sometimes it's a good thing to have another professional just take another set of eyes, take a look at things and experience can mean a lot.
There is a huge benefit to someone who is worked with businesses. They can open your eyes to a lot of different issues that, like you said, they are not even thinking about right now. They are not even thinking about it, right? My client, in the example before with the contractor who done all that software work for them. They have been in business for over 20 years. And this guy had been with them for 15 of that 20 years, and so, you know, they were not, new to the business. But once again, they just had no idea that that is what the laws were, and that's how the law plays out. There were things that we could have done, expensive things that maybe would have still protected them. But luckily, as I said, we were able to just settle out just to take care of that. But, I mean, who wants a big legal battle? Who wants a lawsuit? That's what you're avoiding. The contract is to avoid the expensive lawsuits somewhere down the road.
Yeah, that makes sense.
Yeah, so on and then just I know we're probably limited on time. So, let me just briefly touch on the third saying Intellectual property. One of the huge mistakes I see most business owners ignore is their intellectual property or doing it in a way that it doesn't really give him a lot of protection.
Intellectual property is kind of four main things, maybe a there, but really four main things that the first thing is patents. Everybody is familiar with patents. Apple probably has 1,000 patents pending right now as we speak. Trademarks are a common thing that most people know about, which is like a name or logo that you use to define your business, your products, your goods and services. And then copyrights, right? Those are the big three. Copyrights are pretty much artistic works, things that you render or create in a tangible medium. A lot of times we associate it with movies. That's probably the biggest association most people have with copyright. But it could be artwork can also be text that you put on your website. It's pictures you take, it's ah its advertisements that you create or have someone create on your behalf. The fourth thing that I talked about touch along with my clients is trade secrets. Those are things that don't really fit into those categories or not protectable by those kinds of big three the- patents, trademarks, and copyrights. But you still want to keep a secret. You do not want people to know. And so, you know. Let me just kind of touch on those.
Patents are important because there's a very short timeline from the time that you disclose it to when you can actually get patent protection. If it goes beyond a year, typically, you cannot get patent protection for the underlying inventions. Patents. Typically, we associate like I said, with devices, right electronics. But they could be medical. [You can get] pharmaceutical patents or design patents. It's an emerging area right now. The design of your product is something that can be protected. It becomes important that you move forward with getting those protected as soon as you even before you release the product. I mean, those is one of you if you're in product development, if you manufacture something, you're building something that's new and unique, and most with this is ours, right? Most new businesses, especially they're trying to solve a problem that's out there in the marketplace, right? And if you're solving it with a product, you may be able to get a patent on that. Especially if you're doing something different than everybody else is doing.
The other thing you need to be worrying about is whether you're violating somebody's patent. You want to make sure that what you're doing is not violating or infringing somebody else's pants. Talking to somebody about your intellectual property, especially in patent, is important because you want to make sure that one you get the protection if you can. At the very least, you're hopefully not violating somebody else's invention.
Trademarks are a little bit different. They are inherent in certain business activities. If someone comes up with a name of a business, and in doing that business, they start selling their products or offering their services, and over time people come to associate that name or logo or, you know, slogan or whatever it is with your business. As soon as that starts happening, you've established some pretty strong trademark rights.
The problem that I see in trademarks, some of the highlights is some people choose really, generic or descriptive names for their business. And so, for example, We Fix It Plumbing, right? I mean, that would be something that would probably not fly. People come, and they say, "Look, I just want people to know what I'm doing" and I always tell them, "Look, come up with a unique name, and then put the generic description of what you do or what you sell underneath it." The other thing with trademarks that often does it happen, is being able to go in and register them. That gives you certain rights and gives you a lot more protection. You still have those protections, even if you don't register them. But there are some advantages to registering.
I go through that with my clients is while it's so, you know, having a plan with regards to intellectual property and securing those rights that formerly it is securing them, meaning go get registrations. What people don't realize is that an asset? I mean, if you have a bunch of trademarks, but nobody else can use if they own the trademarks to a couple of different things logo and maybe the name, and maybe have a slogan that you use, that's something you could put in a package to say. Well, in addition to getting this business that generates X amount of dollars in revenue every year, you also get all these trademarks. That's where something, and it's something that makes people feel good when they're purchasing a business. It's another asset that could be including a visit.
I could imagine there may be an issue with, say, a business. It takes an idea and puts those protections on it where someone else maybe was there first but didn't put those protections in place,
Especially in trademarks. Patents, like I said, it's a little bit different. It's like a whole different scheme because the time limits that are on it. But trademarks, the main reason you want to go register is to put people on notice. And whether they go look it up or not. If you put it on, if you put them on notice by registering it, it doesn't really matter. It doesn't really matter that they didn't look. I mean, you can pretty much shut it down. But if you don't and let's say you're a local business now, that eventually I mean, I think it's the hope of every small business to grow into a big business, right?
You can have a situation where they didn't know because you didn't register and you were so small that you didn't have a following or any kind of presence, even in the same state. But you could have somebody who's doing the state business under the same name in, let's say Utah County and another person is doing it in Davis County. And they don't know about each other for years because none neither registered. And suddenly, they're crossing paths now because one of the businesses is growing into their market. And their saying, "Hey, you can't do that. You can't come into my market." How would they know? Then it becomes well, is it fair if there was no presence in this area? Because it's really about who's using, it's to avoid confusion among consumers, right?
The point of trademarks is to avoid consumer confusion. But if you don’t, that that influence fast enough, it's possible that someone could create a pocket within a community where they associate that name with another person's business. And if that's happened and it happened prior or even at the same time, it gets messy. And so now you're involved in a big battle and use now spent, I don't know, maybe not a $1,000,000 but maybe you spent $10k or $20k or $30k or $100,000 branding your business as you've grown. Do you want to rename your business now at this point?
And then finally, trade secrets? Trade secrets are probably the most important from this. I mean, we have a federal trade secrets Act that's been written into law. The big thing with trade secrets is you go in and you have things that you don't want people to know, in the general public. You don't want people to know your customer list. But your employees have access to that every day. What's to prevent them from going and just taking that list and sharing it with a competitor or leaving, taking this with them and then stealing your business? It happens all the time. They're certain ways that you do things that maybe your unique to your market, that aren't protectable by a patent, trademark, or copyright, but still very, very valuable. Business processes or manufacturing processes or, business methods, anything that gives you a leg up that nobody else is doing.
I had a person comes is that I have a unique way of doing eyebrow tattoos. They fill in your eyebrows with a tattoo, came to me saying, "I have this unique way of doing this so it doesn't hurt as bad", or "it's more comfortable for them, for the customer, and it's blown up my business because people come because it's more comfortable for them to be there. How do I protect that?" One, you don't tell anybody about it. And two, you put all the people that do work for you and used the process under contract, right? There are lots of things that you could do.
Like I said, when a customer comes to me when a client comes to me and is looking for either the free audit or is just looking for advice about their business, I usually touch on three. How is the structure? And do they have partners? And if they have partners, let's make sure that whatever your agreement is, whatever your arrangement, your business arrangements with this part is written down and formalized and signed by both parties so that we know going into this new business venture, what is it that you're going to have to do? And what are the obligations of both parties so that there's no disputing it later? There's no ambiguity. Then taking at once that further taking that idea of contracts and applying it to every business relationship that you have with your business.
Whether that's with a vendor, whether that's with a customer, whether that's with a service provider or a, contractor, an employee, anything. Looking at that and saying, "Do I need a contract for this relationship?" I would say a lot of times, Yes. The answer to that is yes, Sometimes no. We talked about if the liability isn't too high, or if the cost of them not fulfilling their obligations isn't too high, then maybe you don't need one. But I would say probably 75% of time, the answer to that is probably.
Then the third thing I go over with them is, what kind of intellectual property you have and how do we protect it? And let's create a plan for overtime because I realize, especially when you're a startup. A lot of people try to bootstrap a lot of people, just like costs are just... what we could spend money on is limited. But hey, let's put a plan [in place]. Even if we just say, "Hey, let's do a trademark this quarter, let's look and see if you have any patent stuff, let's actually start with happens because that's got a time frame on it, right?" If there are patents involved, let's get a patent attorney involved. And there are some things we can do to slow the process down a little bit and slow the costs from being incurred a little bit. So you can kind of generate some income first. But there are certain things you must do within a certain time frame. And if you don't you lose those rights forever. So, let's look at that. Let's come up with a plan to build your intellectual property portfolio that could then benefit you as you create assets for your business.
And then the final thing is, when we look at all of those things we look at, those of the total is really giving you the peace of mind to know. Hey, these are all things that you could do to protect you. It's all about protecting your business. You're going to spend a lot of time, a lot of money, a lot of sweat and tears and blood and other things. It's true, the business becomes your baby, right? It becomes this thing that becomes personal to you, spending the time to look at all those things and protect [them]. It's so crucial because it's so sad to see someone come into my office. And now there they haven't done these things, and we're trying to get them out of a mess. And they're spending oodles and oodles of money to just get themselves out of this mess. And just want the terror of that. That that this business may fail now because of mistake or this business may slip through their fingers and become something that they never wanted it to become. So once again, I'm you know, I'm very passionate about business. You know, some of these things can be done over time. Some of these things need to be really done at the outset. We go through all of that, but, um, really, you know, hopefully, this has been helpful.
Josh, thanks again for your time. I appreciate it. This is great information. Hopefully, we can have you on this podcast again sometime in the future.
Yeah, thank you very much. I really appreciate the opportunity. And like I said, anything I can do to help business owners get a leg up. I think it's very important.