When it comes to licensing, brand protection and IP ownership, what you don’t know can hurt your brand or business. “People don’t know what they don’t know,” says Stephanie Pottick (above), owner of Pottick Law. “It’s really important to understand what your place is in the negotiation or part of the deal. Identify what you have that’s protectable and protect it upfront to prevent someone from stealing it.”
Pottick grew up in the children’s toy industry and joined her father’s company, Sky Kids Inc. in Cresskill, N.J., before becoming an attorney. Sky Kids designed and manufactured arts and crafts toys, play food and kitchen sets, baby doll clothing, accessories and strollers, and licensed toys like Wizard of Oz dolls, Green Giant, Hostess, Burger King and Pizza Hut play food.
“I loved it and wound up staying at Sky Kids for 14 years, which is really where my experience comes in,” Pottick says. “I have extensive knowledge of sales, marketing, manufacturing, brand protection, logistics and licensing. Now I use that experience to help my clients stay out of trouble.”
Pottick Law focuses on helping its clients protect their brands and businesses, determining which contracts they need, what their licensing agreements should contain and providing the overall help they need to be successful. “I’m a cheerleader,” Pottick says. “I want my clients to succeed. I feel like I live vicariously through them because I can’t make my own toys anymore.”
Avoid Becoming a Cautionary Tale
Pottick held an education session during the recent Toy Fair New York 2020 that focused on brand protection. In May, she will be speaking at Licensing Expo 2020 in Las Vegas, asking attendees: “Is your brand ready for licensing?” “The more people learn, the more successful they are going to be,” she notes. “I’m very passionate about that and it’s so important someone knows what they are getting into before they do it.”
For example, a client hired Pottick when some concerns arose after she had signed a contract. “I reviewed it and asked her if she realized she signed away her IP rights,” Pottick remembers. “It was an option contract and once she deposited the funds, the IP went to the company she was contracting with. The client told me it was a licensing agreement and I explained it’s not a matter of what the contract is called, but what it says.”
The key takeaway is never to sign anything until you understand it. Some of Pottick’s clients want to know if their contract is legal, but again she says the bigger question is whether they want to agree to all the terms in the contract. “I’ll read it, explain it to the client and let them decide what they want to do,” she says. “One of the benefits of working with someone who comes with experience in the industry is I can tell you if a royalty rate is low or if something isn’t a normal provision. We can have a discussion and renegotiate the terms.”
Pottick says it is also important to know what your goals are and how to get there. For example, Pottick learned about someone who purchased a restaurant location because he loved the name and thought the trademark came with it. He wanted to use the name and go into frozen food, but the trademark was already taken by someone else making frozen food with that name. If he had been a client of Pottick Law, part of the due diligence performed would have been to search the name first to see if it was available.
Discovering New Opportunities
Pottick tries to connect her clients, when they’re open to it, to other third parties including other clients if there’s a chance they can benefit from that connection. “I help create opportunity for my clients,” she explains. “If I think I have a contact that may be able to help a client, I connect them, which is really unique.”
Co-branding and seizing unique opportunities are the future of licensing, Pottick says. “It’s so easy now to get on social, [but] how are you going to stand out?” she asks. “When two brands work together, that’s a license or co-brand; someone is using someone else’s intellectual property. I see that as the future as people really try to get outside of the normal licensed products and move towards services and unusual combinations.”
Best Practices in Licensing
“Whether it’s toys, food, beverages, a product or service, it’s important to follow best practices in licensing,” says Stephanie Pottick, owner of Pottick Law.
Pottick’s tips for best practices in licensing include:
• Identify what you have that’s protectable.
• Make sure you own IP or know whether you have permission to use IP.
• Protect what you can.
• Figure out which goods and services work best with your brand.
• Find reliable and trustworthy third-parties to work on your licensing deals.
• Understand your contracts before signing anything because one word can be the difference between keeping and losing your rights.
• Understand the importance of specific industry standards and definitions of contract terms and how they affect your license and business.
• Work with professionals who know and understand licensing — this is especially true for attorneys.
To Pottick’s last point, she explains that before hiring an attorney or any professional a client should ask questions and feel comfortable that the person understands their goals and wants to help them achieve those goals. “I’ve had clients who worked with other attorneys, and while I’m sure they know the law, they didn’t understand their business and help them get to the finish line,” Pottick says. “I want to get the deal done. Other attorneys may try to find problems in the contract and it can kill the deal. Let’s figure out how to make it work — that’s the goal.”
This guest blog post was written by Janice Hoppe-Spiers at Retail & Food Best Practices. If you have questions about licensing or brand protection, contact Stephanie Pottick at Pottick Law. Stephanie can be reached at 714-504-0526 or by email at stephanie@potticklaw.com.
