Op-ed: Treat Your Brand Like the Asset It Is, Lawyer Says

Revenue, hiring and growth come first. Intellectual property comes later, usually when something breaks. That’s the argument Francesca Witzburg makes in a new op-ed published by amNY, and her pitch to founders is blunt: your brand belongs on the balance sheet, and you should protect it like it does.

Witzburg is the founder and managing partner of ESCA Legal, a business, intellectual property and litigation law firm. She writes that her firm recently hosted Boardrooms & Brunch, a ladies’ luncheon at Pendry Natirar in Peapack, NJ, where more than 50 women showed up, among them founders scaling multimillion-dollar companies, executives and local business owners. She moderated a panel titled “$10M, $100M and Beyond: What the Most Successful Owners…”

Her core point is that a brand is not “a logo and a vibe.” Buyers, lenders and investors, she writes, pay for what a company actually owns, and that means registered trademarks, protected IP and clean contracts. “Just because you use it does not mean you own it,” she says in the piece.

She describes the failures she sees. Founders spend years building a name, a following and a product people love, and the trademark was never filed. Or it was filed in the wrong name. Or the contracts with the designer, the manufacturer or the co-founder never spelled out who owns what. None of that shows up on day one, Witzburg writes. All of it shows up in due diligence.

Sometimes what breaks is a copycat. Witzburg says brands have come to her firm with sales down 40% on Amazon because of knockoffs they already knew about. Someone was handling takedowns, but there was no strategy behind it. By the time they called a lawyer, she writes, it was a million-dollar problem.

She lays out three steps she says founders should take now. First, register early and strategically: file for the marks that actually drive the business, in the name of the right entity, and in the markets where you sell or plan to sell. Second, know what you own: make sure contracts with designers, manufacturers, freelancers and co-founders say who owns the work, and fix them before someone asks. Third, check in every six to 12 months, because the business changes with new products, new markets and new channels. Build protection alongside the business, she writes, so you aren’t scrambling to register in 20 tier-one markets while the fight is already happening.

Her closing argument is about the exit. Owners who reach $10 million, $100 million and beyond, she writes, think about the sale years ahead and about how the business will look to someone on the other side of the table. “Your IP is a big part of that picture,” she says. None of the steps are complicated, in her telling, and they cost a fraction of what the cleanup costs.

The piece is the first in a column in which Witzburg says she’ll tackle the IP questions she hears most from founders, brands and creators, from trademarks and copycats to AI and ownership, in plain English.