Episode 161: Steve Weigler, Founder of EmergeCounsel

Steve Weigler is a mastermind when it comes to protecting your brand. After many entrepreneurial pursuits of his own, he’s come to understand more than just the legal side of building a business, giving him a unique perspective in helping his clients keep their brands safe from knock offs and other legal woes. The EmergeCounsel Founder explains in this episode how a small investment at the start can garner big returns in the long run, and prevent future (expensive) issues.

If you’re a Founder, CEO or entrepreneur, the information in this episode is invaluable to building, growing and potentially selling your brand.

Dan Hodgdon
AnnouncerWelcome to WHERE BRAINS MEET BEAUTY® hosted by Jodi Katz, founder and creative director of Base Beauty Creative Agency.
Jodi KatzHey everybody, it's Jodi Katz, your host of WHERE BRAINS MEET BEAUTY® Podcast. Thank you so much for tuning in. This is a special episode, it features Steve Weigler, he's the founder of EmergeCounsel, so stay with me. He's a lawyer, but you need to hear this episode. And if you missed last week's episode, it featured Dara Levy, she's the founder of DERMAFLASH. Thanks for listening.

Hey, everybody. Welcome back to the show. I'm so excited to be sitting across the Zoom with Steve Weigler. He is the founder of EmergeCounsel and TotalTM. Welcome to WHERE BRAINS MEET BEAUTY®.
Steve WeiglerThanks, Jodi. It's really just nice to see your face. We've always spoken on the phone.
Jodi KatzYeah, it's cool to see your face, and I want to give full disclosure to our listeners here. So I met Steve because he was looking to start a skincare brand, and it's up to you, Steve, if you want to reveal the secret sauce for that.
Steve WeiglerSure, I will.
Jodi KatzAnd then we started talking again, and Steve might be a more unusual guest for us, because of the topics we're going to talk about, but I think this is so important. So Steve, tell us a little bit about your dabbling in skincare before we move on and say really what we're here to talk about.
Steve WeiglerSure. Well, like everyone I work with, we all have a lot of entrepreneurial ideas, and you can sense the personality the moment you meet an entrepreneur, and I definitely, through my career, although I've worked for large Fortune 50 organizations, and even large government organizations, in the back of my mind, I've always been an entrepreneur. I always thought I could do it better, and I have had some entrepreneurial pursuits, some that ended really well, and some that ended not so well. So through that, I was finishing an entrepreneurial pursuit and I said, God, I had time, and I was playing skiing a lot, and riding my mountain bike a lot, and my head was starting to get really red, and it was because I was getting older, and I started balding, and it was something that I've not looked forward to. I knew looking at my dad that it would be happening, but I thought I'd be bald by the time I was like 20, but I'm now over 50, and finally, it's really kicking in.

Anyway, the point is, is that I thought, "Hey, there's no skincare line just for bald guys," and so I went to conferences in Las Vegas, I got someone that would chemically manufacture it, and then I said, "Who's the best brander I could find?" and as an entrepreneur, you'll always go and try to find them the best, and the best is Jodi, from what I could tell. And so, I even was able to create a relationship with Jodi, had it all set up, and then the FDA started cracking down on sunscreens, and I said, "This is really not the right time to do this business plan." Deep down, with all those entrepreneurial pursuits that I've done, and I've done about 10 years of just straight entrepreneurism. Before that, again, I was working for large corporations, and law firms as a corporate consult.

But once I did that, my true calling is I'm an attorney, and I'm very acutely aware to brand, as being an entrepreneur, and really focus a lot on helping entrepreneurs build their brands and protect their brands. And so, I thought this was an excellent synergy. I don't think I will ever do the skincare line, again, just because I think I've really, in this last 10 years, I've found my true calling, which kind of took... I had to figure out what I was going to do. I had to take all my skills, because I exited an entrepreneurial endeavor and I'm like, "Well, what are your skills? What are you good at doing?" and I put them all down on a piece of paper, and what I do right now is what I'm really good at, and enjoy.
Jodi KatzThat's so cool. So full disclosure, also, Steve is a partner with our podcast, but I did not pay him to say those nice things about me and my agency's talents. Right?
Steve WeiglerWell, it's true. I mean, I did a lot of research, Jodi. It's not blowing smoke.
Jodi KatzSo I think this is so important, because there's a lot of entrepreneurs that are guests on our show, and a lot of our fans are either entrepreneurs or entrepreneurial, right? They might work in other companies, but they're just entrepreneurial. And this topic about how to actually protect a brand, not just from like, do we have great social media content, but actually protecting from a legal perspective is so important, and I've known so many founders who've not protected, or not really had the IP, even though they thought they did. And then years later when they try to monetize their brand by selling it or getting investors, they run into a lot of problems. So this is very, very important, and I think this is going to be an episode actually, that people keep coming back to, because you're going to give us some practical guidance here. So let's talk about this process. Why do entrepreneurs not make this a priority? What have you seen, kind of your war stories?
Steve WeiglerWell, I'm going to try and take it to your world. Your brand is everything, especially in beauty and skincare, and everything is brand, and Jodi wouldn't be the first person to say this, I wouldn't be the first person to say this. When you go and you make decisions in a store, be it Nordstrom, or Saks Fifth Avenue, or even Walgreens, the whole experience, while you're picking one over the other, has a lot to do with the brand and the brand experience.

There's two parts to brand. There's figuring out that it's more than just labeling and the entire customer experience, which is what Jodi helps with, and it comes from the mind and vision of the entrepreneur. Then there's kind of the boring part, which is, I went to a marketer when I started this practice and said, "God, I want to make this exciting and interesting." They're like, "Steve, you are marketing in the world of boring. Law, except to lawyers, is a very boring topic." And so, the exciting side of brand is the whole customer experience. What I focus on, where I understand what Jodi does, and I don't have really that talent, my talent is taking and dissecting what the elements of the brand that are protectable are, and protecting that.

And so, I think when an entrepreneur comes into the field, or even when we deal with large, because I have some large cosmetic type brands that are doing 20, $30 million of business, but it's the same thing. The exciting part is really creating that customer experience, is really creating the fun marketing parts. We're dissecting that, and really taking it into something that's not particularly interesting or makes someone's eyes glaze over, but at the same time, it becomes very interesting when someone is knocking off your brand, and you have to do something about it. So we try and make it interesting. We really try to incorporate the conversation on what is the brand, but again, a lot of times I think a lot of entrepreneurs don't really think about the most important aspects.

The other part about it, it's not that different than insurance, or anything where you buy it, you're like, "What a bummer I spent..." In our case, our entire trademark package runs about $875, and they're like, "God, if I had any money, I'd spend it on Jodi, or I'd spend it on packaging," and they don't really think about the part about, well, what happens if, and that $875 can become, one of my latest cases, $285,000, if someone knocks off your brand, and you're trying to take it down. So the risk tolerance for entrepreneurs, especially, or any business owner, or any corporation, frankly, is pretty high. And so, they don't really think about, "Well, gosh, this is an element of protection."

The third thing is protecting brand, is building value. So if you create a brand that's just a dynamite brand and you don't protect it, well, when it comes time for M&A, mergers and acquisitions, that's the first thing they're going to knock off the price, because you didn't take the time to protect it. So I just think it's not on a lot of people's minds until, just like everything else, until your car gets wrecked, or until you get the COVID virus. You're just like, it's not on your mind. It's more what you do, it's a lot more front of page, where it's kind of in the back row.
Jodi KatzSo I love how you actually used the best of marketing to sort of express your specialty, because you told me that you have the services of a large law firm, but at a fraction of the price, and I think it's just smart marketing, right? Because I think one of the reasons why entrepreneurs just want to skip over this, and insurance, and those other un-fun things, is because it seems like a deep hole that we don't understand the language, and we don't even know the questions to ask, and then there's this huge cost associated with it. So I think disarming people and letting them know that yeah, you can have the expertise, but you don't have to spend aggressively in the beginning, is really important. So kudos to law firm marketing, because I don't know that that happens very often.
Steve WeiglerYeah. It's all through my entrepreneurial experience. Most of my last business was a predictive analytics business, and we had to work with large law firms, because a lot of our biggest business was like in Singapore, and all these places. And so, what I realized was the quality of their practice was very high, but the bills were also like 900, $10,000 an hour, and again, our business was kind of like three million, $4 million of revenue. And it just was like, wow, there has to be something here for people that are trying to build a business with equal quality, that by using technology... Most of our clients are all over the world, all over the country, for sure. So the combination of using technology, and there's a lot of technology and trademark searching right now, that wasn't around at the time they built the large traditional law firm.

And so, using all that, I'm sure you're doing it in your practice too, Jodi, is by using all the technology that's out there, you can lower the price for the consumer entrepreneur, meaning the law consumer entrepreneur, without sacrificing quality. And then there's a ton of attorneys that have just had it with a large law firm business model, because I don't know, I hope that I'm not insulting any attorneys, but that's a lousy thing to do for your life. So, anyway, all of that together, we built a nice little law firm that's really focused on a lot of flat feeing, and really making it affordable, but we are not sacrificing quality. That is not something that we're willing to consider.
Jodi KatzSo, is it okay that you are in Colorado, and that your clients are in other states?
Steve WeiglerYeah, I have like a total of 10 clients in Colorado, and I have 500 clients. So most of my clients are all over the world. What in your industry, what is... I think what's important for a client to work with a lawyer in your industry, in particular, is that they understand what the brand is, what the elements of the brand are that they feel are special or protectable. And some thing you can protect are, for example, the name is definitely protectable, the logo is protectable. A huge thing that's coming up in your industry is the trade dress, which is the packaging, and how the packaging looks and feels, which, again, I've been reading a lot about what you're doing, Jodi, and again, the first generation was kind of like, "Well, come up with a creative name." The second generation is coming up with creative logo, and now it's not only the packaging, but how you're showing people unwrapping the packaging, including influencers. And if an entrepreneur can come to me and understand those brand elements, we can easily and effectively protect those very quickly, and cost effectively.

And so, either I have to spend the time unwrapping what the brand experience is, or it's fantastic if they come to me with it. If they do, a lot of it is done via Zoom, and we take pictures, we have our own photo studio, to make sure that we're getting it protected in the right place, and then we put it in a nice wrapper with spreadsheets that are branded, always get your brand out there, and to manage it. And then, it becomes a very low cost, highly effective process that you can do almost anywhere.

The second thing Jodi, is the question about... And I don't mean to ramble on, but the question about, can your clients be anywhere? Well, a lot of the knockoffs that are occurring here in your industry in particular, and almost every other one, are in China. And so, a lot of our law is international law, and so, and it's a combination of international law and federal law. And so, the Jurisdiction of Colorado really has no impact on intellectual property law. It's all protected either at the federal level, which is out of Washington, D.C., or internationally, and with a particular focus, and make sure whoever you work with, it could be me or someone else, that they have excellent relationships in China and other Asian countries, because a lot of our work is being done taking down infringers at that Chinese level, and protecting entrepreneurs in China. I mean, they're manufacturing in China, so we're protecting their brand in China.
Jodi KatzSo Steve, I can imagine someone listening and being like, "Well, I'll just go to LegalZoom," and I kind of love LegalZoom, just because I made my articles of whatever when I started my company there, right?
Steve WeiglerAnd corporation.
Jodi KatzMy own corporation, my articles of whatever. So I do know that it's not the best choice, because I don't know the questions to ask, right? So can you just sort of outline why it's really important to work with someone like you when we're starting these out, versus just incorporating on LegalZoom like I did?
Steve WeiglerSure. And we should talk about that Jodi, offline, but LegalZoom-
Jodi KatzI’ve very transparent and honest, I did it.
Steve WeiglerHere's the skinny, is you pay an attorney for strategy. And so, just like I could brand myself too, and probably, pull up some emojis put it on the top, and maybe that would even take off as a brand, chances are one out of 5,000, but it could, and the same holds true with using a service like LegalZoom. LegalZoom is a filing service. And so, nothing I've seen from LegalZoom... I get involved when somebody screws it up by getting that false sense of security that they filed a trademark on LegalZoom, and then they get sued for trademark infringement. Then I get involved, and I have to undo all this stuff.

So you guys, I would rather have you call me and say, "Steve, I can't afford you. You aren't particularly impressive, but you're willing to talk to me for free," I'd rather have them call me, or do it themselves. Go to the law library, go and find the legal clinic at your local law school to help you do it, as opposed to getting that false sense of security that LegalZoom's doing it. Sure, LegalZoom also has a service where they have attorneys. I don't mean I'm not here to disparage LegalZoom attorneys, but that's a model, you guys. They get paid per click. I wouldn't want to pay Jodi per click. That's not what you're looking for.

I hope I'm working with people that want to make more than like $2,000 on their brand. We're talking about building big brands. We're talking about big entrepreneurial endeavors, that maybe you're not there yet, or maybe you are, it's the same process. You go through the same strategy, because ultimately, you want to get to the M&A table, or you want to keep the brand forever, but most people don't. They get to the M&A table, and they work themselves out of the business, and they do quite well. And so, if that's your goal, LegalZoom is absolutely the worst place to start.
Jodi KatzOkay. You said something to me that I think is so cool. Make it, market it, protect it, all at the same time, and that's really the summary of what you're talking about, right?
Steve WeiglerYeah, absolutely.
Jodi KatzThe entrepreneur is so focused on the making it and then marketing it, and then protecting it really falls at the bottom of the list, but it sounds like that protecting it is what's going to make the difference when it is time to sell or really grow the business. Okay. So you listed three-
Steve WeiglerAnd it really is a lot less time working on the protecting side. This is not meant to be torture. I mean, listen, I'm no different than, than you guys when I have to go and talk to my attorneys, which, again, I don't use LegalZoom. I go and hire an attorney for whatever I have to do, on my corporate side, or wills and trusts, or whatever. It's like, you look at your calendar and you're like, "Oh no, not that today." Like, "Oh man, can I postpone that for six months?"
Jodi KatzYou're a lawyer and you feel like that?
Steve WeiglerSure. Again, it's like... So our TotalTM process, we make it really very, we're all really... Number one I hire for, you got to be nice, and you got to be empathetic and kind, and have some entrepreneurial experience, and then the other thing is, we just, we've spent years creating processes. So it's just really like, as long as we see your brand plan, we'll sit there and figure all the stuff you have to do. Make it really nice and easy, and usually, the entrepreneur or the business owner, or the board, if it's a larger company, sits down and has about an hour of questions and we answer the questions, we usually don't charge for that, because we just want everyone to be copacetic, and it just becomes like more of a conversation. That's how I get the number of clients I have too, because you don't have to talk to the attorney every day, whereas I think the brand, or your brand partner, is much more important. Your brand always has to be growing.

And that's kind of the vicious cycle though, a little bit, because your brand, you probably know the same point that I do, but if your brand, if you're not moving, you're dying. And so, you see that with every large brand, too, like Head & Shoulders might be Head & Shoulders, but now they have 80 kinds of Head & Shoulders. That's because brands always have to grow and evolve. And that's a terrible example, but the same holds true with then you have to notify the brand protection team that, "Hey, you're modifying this project."

Or for example, Jodi, again, I know packaging is a big deal in your industry right now. You have to notify like, "Hey, I hired this influencer," potentially this influencer is unpackaging it on YouTube. Well, there's a whole bunch of other intellectual property rights that are going to happen right at that moment. You want to make sure that it's a work for hire, that you're not giving up any of your copyright. And so, there's a whole bunch of decisions once in a while that you have to make with your brand protection team. One other thing is large organizations like L'Oreal, would have probably 50 attorneys doing this. So, the point is, is we have to then take those strategies and move them into a package that entrepreneurs can … Mm-hmm (affirmative)
Jodi KatzRight. So we're not talking just about like, I'm going to create the name of my brand, and I need to get that trademark, I'm going to create the logo for my brand and get that trademark. When you're talking about influencer marketing and packaging, it's another level of legal support that we need. Tell me a little bit more about that. Am I trademarking the packaging design?
Steve WeiglerSure. Let's go through just very briefly, the types of intellectual property that your listeners should be focused on. Trademark protects brand. So it protects goods, which is what most cosmetic brands do, is they bring out goods to the marketplace. They also protect services, so for example, a famous makeup artist that might have a brand, or start a bunch of salons that have a brand on makeup, putting on makeup, or dressing somebody, or hairstyle, the whole thing is it protects the name and the tagline, and the logo sometimes. For example, the AT&T logo is a trademark, the L'Oreal logo, those are all trademarks. So it protects the brand, the customer experience, so you know where that product is coming from.

Copyright protects the product, the art, the product packaging, the directions on how you put on the product. So for example, if there's a unique little brush that you brush something on, and you have to explain to the end user consumer how to do that, that would be through copyright. And so, we integrate those strategies really closely, to make it like a kind of a tight knit sweater.

The third thing is, everyone that's producing a product has a unique formulation, usually, or a spinoff of an established formulation, that is protected a lot of times through trade secret agreements. So you have to have trade secret agreements, or you should, you should explore that with your co-employees, your manufacturers, for sure. Then your manufacturer might be coming out of China, well, then you have international law. And so, it's great to explore that. So what we do in our first visit, a lot of times, is explore all those things, and then integrate it into a spreadsheet and determine how to do it.

The fourth thing is patent, which protects inventions. My experience, and I am not a patent attorney, my experience is I can evaluate if talking to a patent attorney is worth it. Most of the time, no one in the branding world is necessarily coming up with a unique invention. That's inventors. For example, my sunscreen product was not going to be something that I invented, it was going to be something that I bought from a factory, a cosmetic factory in Florida, that had sunscreen in it, that somebody, they invented it. So the whole idea is brand, and I'm coming back to the central theme in cosmetics and beauty, brand is everything, everything is brand. So we're really focused on the cheap and easy things to do, but you take those three forms of intellectual property, you put it together.

The last thing is the corporate stuff, like Jodi, you said you get LegalZoom, well, I don't know if you have co-founders, the whole thing is, you have to explore that, because who owns the form, who owns your templates, all those things? Sometimes it's a company, but then who makes a decision for the company? So we kind of explore all that in like 20 minutes, and then we can provide advice to the entrepreneur on mapping all that out. Usually, it's one to two trademarks, a few copyrights, and kind of talking about the trade secret, and you're in business for a while.
Jodi KatzJust as an aside, you said the word copyright is about what's written on the packaging, and I started my career as a copywriter, but it's creative writing, but maybe that's where it got its name from, like the people writing the legal copy on packaging, were called copywriters, maybe?
Steve WeiglerYeah, I think its spelling is off by one. But so, copyright is R-I-G-H-T, and copywrite is W-R-I-G-H-T.
Jodi KatzOh, oh.
Steve WeiglerBut it's very similar. So if you are a creative copywriter for ad copy, or for copy on packaging, so somebody is hiring you to write it. So we get into these disputes all the time, where the copywriter won't release copyright. So they'll say, "I wrote I, so I get half the royalties. You never worked that out with me." Well, that's a really lousy copywriter, don't work with... But you have to create what's called a work for hire agreement with the copywriter, to make sure that you have all the intellectual property.

And this only becomes important when someone knocks you off, or when you're at the M&A table, and they're going to go through all these checklists to try and drive the price down, because they're going to say, "Well, you never got that. Where's the work for hire agreement on the back of your... for the instructions? Oh, you didn't do that. Well, how do we know?" Number one, they know. But anyway, the point is, no one's brought it up for 20 years, but the point is, they're going to use that as leverage to drive the price of the M&A down. So-
Jodi KatzRight. And we want our founders to have the most value in their brands.
Steve WeiglerValue in their brand, and do the prophylactics, cheap prophylactics necessary to not run into the problems that drive up the legal cost, hundreds and hundreds of thousands of dollars, or make mistakes that sometimes are unsolvable, meaning we're still stuck in litigation on some of this stuff.
Jodi KatzSo I wrote down three things that you told me when we were on our call, like number one, that you give a free initial consult, so everyone should call you. Right?
Steve WeiglerAbsolutely.
Jodi KatzThat's just the rule. Anyone who's listening, just call Steve, just call him. Tell him I said, call him.
Steve WeiglerWell, and then any attorney, anyone that's like, "Oh, we charge $100 for our initial consult," it's like, all I want to do, I have to get to know my clients to do good legal services. And so, it's really a get to know you call, and just dive into your business plan. Mm-hmm (affirmative)
Jodi KatzRight. And then the second thing I wrote down is if you're already in the market, your team will help assess and evaluate the labels, the artwork, the customer testimonials, instruction manuals, formulas, what should be protected, so that they keep the value in their business. And then the other thing you told me was about knockoffs, which you talked about, right? Unless you do the work, it's really difficult to protect yourself, so that's something that all brands really need to be thinking about.
Steve WeiglerAbsolutely. Knockoffs are the hugest issue right now, especially in e-commerce.
Jodi KatzI mean, I saw, I told you on the street in New York City last summer, I passed by a table and usually, people are selling scarves, or hats, or whatever, and they were selling fake products, and beauty products, and brands that of course, everyone knows and loves. And it was amazing how many people were crowding around this table for their fake Urban Decay products or whatever other brands they had there, and it looked so real, right? And who knows what's inside those containers, what kind of gross formulas are in there, but that's a huge problem for a brand.
Steve WeiglerSo I'm from Wisconsin originally, but I've spent plenty of time in New York City, and I thought, you didn't see it in Milwaukee, Wisconsin, the tables, you saw barely anything. But in New York City, you'd see the tables, even when I was growing up in the '80s and '90s, you'd see that, but now with e-commerce, there's certain studies that say almost 50% of commerce on Amazon are knockoffs. And so, it's become exponential, and then you're seeing, especially with COVID, that maybe the retail sales model where you can control your channels, like Macy's can control their channels, Saks Fifth Avenue can pretty much control the channels. They know they have such sophisticated distribution channels, but Amazon, it's a different show.

And so, if two out of four are knockoffs, there are so many e-commerce strategies that you have to take into consideration when launching or managing a brand, because unless you have the tightest distribution channel, maybe Louis Vuitton, even they even have problems, but it's a tight distribution channel. They know exactly when that truck is leaving Paris with the goods. They know exactly how to track them, exactly how many they shipped to each store. Most of us don't have that luxury, and so, we really have to take the steps at the early stage. One thing we're being really effective with is taking down in Chin, on Alibaba. So a lot of these brands end up on wholesale on Alibaba at the Chinese... Never crosses American soil, but if you can't take down there, once it gets to the United States, it goes into this huge spider web, and it's very difficult to police your brand. So brand policing becomes a really big deal in your industry.

And so, and then when they're working with you, Jodi, creating aspects of authenticity, meaning how are you going to know that that's an authentic brand? Well, I can point that out on Louis Vuitton. I can point that out on some high level cosmetic brands, but packaging has to be it. In packaging, there has to be little tricks, secrets, on how you're packaging, who you're getting that tissue from, whatever you're doing, that has to be taken in consideration, and that has to be kind of work you're either going to do it yourself with me telling you it's protection, or work with someone like Jodi, who can see little elements that we can kind of protect them. Well, she's going to be more focused on what little elements that may create authenticity, and then I would protect them. So authenticity is huge in your industry right now.
Jodi KatzThat topic is so interesting. There is these little dolls that my daughter loved, I guess it was like last summer, called L.O.L Dolls, and she learned about them of course, on YouTube, and they're these little toys that come in really fun packaging. But my daughter, at eight years old, knew how to spot a genuine L.O.L Dolls from a fake, and that was kind of like the game, whenever we'd walk into a store, she'd be like, "That one's a fake, that one's real," and she got educated, because the influencers that were partnered with the brand did education videos around like, these are legitimate L.O.L Dolls, look for these details, versus the fakes that were wrapped differently, or the whole name wasn't there, right? And it became a really important part of understanding the value of the brand, that this eight year old was recognizing-
Steve WeiglerYeah, for sure.
Jodi Katz... exactly what you're talking about. Okay. This is so interesting. I just want to remind everybody that you just call Steve, really just don't worry about it. Just call Steve, see how nice he is and his team is, and they're going to listen to you, and they're going to tell you what has to happen now to protect yourself. So thank you so much, Steve, for your wisdom. I know this is an episode that our listeners will keep coming back to.
Steve WeiglerSure, a pleasure. And you guys are in a great industry. I love it.
Jodi KatzOh, thank you, Steve. And for our listeners, I hope you enjoyed this interview with Steve. Please subscribe to our series on iTunes and for updates about the show. Follow us on Instagram @wherebrainsmeetbeautypodcast.
AnnouncerThanks for listening to WHERE BRAINS MEET BEAUTY® with Jodi Katz. Tune in again for more authentic conversations with beauty leaders.

Want to sponsor the pod?

Available On:

Apple Podcasts