Imagineering Now Pty Ltd. – Part 1

SUMMARY

In one episode of Biz Bites, the host interviews Rondalyn, a chartered accountant and tax lawyer turned small business consultant. The discussion begins with Rondalyn introducing herself and her brand, ‘Financial Foreplay,’ a registered trademark she has protected over a number of years. The main topic is how another person was caught using Rondalyn’s ‘Financial Foreplay’ to build her brand without seeking any permission. Despite several cease and desist letters, the person claimed rights to the trademark and even sought to register her name in front of the same, leading to a legal showdown. The episode then details the tedious legal process Rondalyn had to undertake to stop the infringement of her trademark. The conversation concludes with the importance of trademark vigilance and protection.

00:00 Introduction and Welcome

00:52 Meet Rondalyn: The Financial Foreplay Expert

02:22 The Concept of Financial Foreplay

03:07 The Importance of Understanding Numbers in Business

04:44 The Role of Bookkeepers and Accountants in Business

07:23 Unlocking Trapped Cash in Business

08:44 The Shocking Story of Stolen Content

11:31 The Legal Battle Over Trademark Infringement

13:39 The Unfolding of the Legal Drama

20:32 The Final Verdict and Reflections

28:27 Conclusion and Closing Remarks

TRANSCRIPT:

Anthony Perl: Welcome to Biz Bites brought to you by CommTogether, helping businesses like yours build their brand through telling amazing stories to engage and grow audiences on multiple platforms.

Well, hello everyone, and welcome to what I’m going to classify as a very important episode of Biz bites. I know it’s important because I’ve traded a few messages with our, with our guests this afternoon, Rondalyn, because, let’s just say it’s been a precarious situation. It’s all to do with content. And I guess who owns the rights to the content once it’s been published and what happens if someone else decides to steal that content?

What, where do you stand on things? I guess the best thing to do is allow you to introduce yourself properly, Rondalyn, and tell us a little bit about, I guess, about you and, and your background. First of all, before we get into the, the meat of this story.

Rhondalynn Korolak: Yeah, fair enough. I hope I’m not disappointing anyone by showing up without my latex boots and my whip, but I am the author.

called Financial Foreplay, and I did trademark that brand quite a number of years ago. So I’ve got quite a few things that I have tried to protect over the years as my intellectual property, and that’s one of them. I am a formally qualified chartered accountant from Canada and tax lawyer. So I had a A career way back when with PWC, which is a large and well known firm, but I immigrated to Australia about 20 years ago.

And since I have eaten a pie and I have a footy team, I’m a full, you know, full blown fair day, fair dinkum Aussie. So I’m now. You know, making Australia my home, and that’s where I probably will, you know, live the rest of my life. So this is what I do. I, I work with small businesses. I basically use the background that I have, which is very much, you know, cash flow, tax numbers, all that stuff to help business owners make more money, which is really the lifeblood of any business.

I’m not in personal finance. I’m Pretty much solely focusing on people and their small businesses, in particular cash flow and capital.

Anthony Perl: So I definitely want to delve into that area, but I think we need to start by addressing, first of all, I guess, Financial Foreplay, what a fantastic name. So I can see why you would have copyrighted that name some time ago.

And, and, uh, I was going to say, how did you come up with that name? But I, I guess, you know, sense of a bit of fun in that as well. And, and it’s a good, I imagine it’s a good way of bringing people in and, uh, making something that I guess is normally when people talk about finances, you get into that very kind of focused, um, um, I guess accounting spreadsheet kind of mode.

Um, and by introducing the idea of foreplay, that’s kind of a little bit, not what you’d expect.

Rhondalynn Korolak: Yeah, look, I think we have to be careful. People that are in the accounting space, whether you’re a bookkeeper, an accountant, a financial planner, it doesn’t matter, we have to be very careful because we love numbers, but our clients do not.

People are terrified of their numbers. They’re overwhelmed by their numbers. They just hate dealing with their numbers. They’ve got a phobia about it or some kind of mental block. So when we’re trying to help people, we need to think differently about the way that we present the message. And what I see a lot of my colleagues doing, which I think is incorrect, is trying to teach people accounting.

You know, if people wanted to become accountants, they’d be in university studying accounting. And most people don’t. So it’s about, for me, how do I take brain friendly educational training techniques and use them in a way to make finance Fun and interesting and memorable and just a little bit unique.

And, you know, just for anybody that’s worried, there’s not really any sex in it, you know, even though you sort of see these latex boots and a whip and it’s conjuring up images, but what I try to do is I try to use a lot of visuals and a lot of stories. Sometimes I’ll have puppets or I’ll have a drawing of a bathtub and I’ll use these Ways to actually teach things rather than trying to show somebody will numerically.

This is how you calculate cash flow, you know, it takes thousands of hours for accountants to get really good at that sort of stuff. And most people don’t have 1000 hours to dedicate to learning it. So I’m going to teach them what they need to know in pictures. And in stories, and they’re going to be able to automatically like immediately implement it and make sense of it.

And I should get some results.

Anthony Perl: It’s such a critical area for business and, and often, you know, having been in small business sector for a number of years for myself and, and talk to many, many people over the years, the typical thing, of course, is that cash flow is about what’s in the bank account, which is.

Not the answer that any, um, um, would anyone with some knowledge would tell you, but that is the way that many businesses operate is effectively, what have I got available? It’s in the bank account, not withstanding what bills might be coming forward or anything like that. It’s just, okay, that’s there. I can spend it.

Um, and, uh, and, and it is, as you say, it is, uh, incredibly overwhelming for a lot of, a lot of businesses who may be fantastic at what they do, but that Often does not include the financial side of things. And I know I, you know, from my own point of view, uh, being a creative person, uh, financial side of things and keeping on top of that, not my, uh, not my friend.

Uh, I remember early on in the business, uh, you know, bringing my dad in who had retired recently and said, right. Can you take care of putting the books together as it, as it was, but, um, and then eventually migrated to bookkeepers and accountants and things that, uh, that helped me today. But I think that’s, uh, even when you’ve got that support.

Understanding things like what you’re talking about is not necessarily their domain either, is it? Because they’re there to do a job, to keep on top of your books and things, but not necessarily to be talking about specifically all the time about cash flow and making you understand that and the impact it can have on your business.

Rhondalynn Korolak: Yeah, look, I think that they should be. I think that their primary job is not just to be there and do the books. In my perfect world, it’s a blend. It’s a mix of those two things. Getting the basics done so that we have the right information. Because you can’t make good decisions if the core information you have isn’t even correct.

So it’s about getting that right, because it is easy, you know, I see all these people using Xero and QuickBooks and MYOB online. It’s too easy for people to think they can do their own books. And they don’t necessarily know. The ins and outs of accounting and they can easily make step missteps. They can read, misclassify things.

They can forget to charge DST. There’s all sorts of ways that people can go wrong. They can get their payroll incorrect. And, you know, you end up with situations like they did with 7 Eleven and some of those companies who got in a whole lot of trouble because they underpaid their staff. So it’s about sort of getting these things right, but it’s also about understanding.

How do you put the finger on the pulse of your business? You know, where’s the cash trapped? I mean, one of the reasons I hate doing forecasting and for people focusing on forecasting is when you do a forecast that might happen and it might not happen. It’s not set in stone. It’s very subjective. It’s very speculative, whereas cash flow when calculated correctly, if you understand sort of how it works, it actually shows you where cash is trapped in the business.

And if you know where it might be trapped, you can spend 100 percent of your time focusing in on those traps and areas and unlocking it and putting it in the bank account. The easiest way to fix your business might not be selling more stuff. It might just be unlocking trap cash. And getting that sort of freed up.

That’s a more immediate way sometimes of fixing a business. And that’s my bread and butter. It’s the stuff I love. And I’m probably putting people to sleep right now, which is

Anthony Perl: no, we won’t, we won’t do that. And I have, and I do have, I do have to say, um, my bookkeeper, Anna, if you’re listening, I know it’s not you.

I know, you know, all about cashflow and you do show, show me that on a regular basis. So, um, but I, I do, um, Uh, I do want to pick you up on, on, I guess, in the way that you teach this. And this goes back to your branding, um, that we, you know, started off by talking about, and then the whole systems and idol ideology that you’ve got in place.

So tell me the story about what’s happened to you in over the last, I think it’s the last three years, you said that this is, is that the period of time that it started happening, that you had, uh, content starting to be taken from you and, and other people claiming ownership of it. Yeah, so what

Rhondalynn Korolak: happened is it was about June of 2020.

So it was right after COVID hit in March of 2020. So there was a lot of lockdowns. There was, um, a lot of, like, you have to remember I’m a speaker, so I do a lot of coaching and speaking. Every one of us got, you know, basically stuck at home, particularly us Melbournians that were in 200 and 70 days or whatever it was of lockdowns.

A lot of this travel and speaking and stuff, you know, stopped and everything started to move online. And I sort of thought, geez, you know, wonder why I’m not getting as many inquiries as I normally do, because people find me online via my name and via this financial foreplay, even though I’ve written five books, that’s the one that seems to get, you know, most of the real interest in traffic and.

I just happened to look online and I noticed that Someone I’d never heard of. So I don’t know this person. So even though I think that the finance industry is being pretty small and, you know, me sort of knowing most of the people and running in the same circles, I’d never heard of this woman and she was online.

She had an Instagram channel, a YouTube channel, and she was running a podcast. That used my exact trademark term. So this wasn’t really a copyright issue because copyright’s automatic. It was a trademark issue. And so trademarks have to be registered. And once they’re registered for a certain type or class of goods and services, you own the exclusive rights to those.

And I trademark anything to do with financial books, financial advice, financial education, money matters, credit management, pretty much anything that had to do with money and finance. I had protected. So I was really shocked to see this thing being used. And so in my way of thinking, you know, crazy, naive me, I thought I could reach out to this person and just sort of, you know, get her on the telephone or get her to, you know, send me a note back.

And then we could just have a, you know, open chat about it. And that perhaps she didn’t realise that what she was doing was wrong or that there might be a trademark implication. And she refused to get on the telephone with me. Which was odd. And the person that I spoke to who was a talent manager insisted that I put everything in writing and that they were going to give it to their lawyers.

Now, right away I knew there was something that wasn’t quite right. So I, you know, talked to my lawyers because I have patent applications as well as trademarks and things, so I do have a dedicated IP person. And I went to him and he sent a cease and desist letter. And this was in about mid November of 2020.

And when I sent the cease and desist letter, nothing happened. So we gave her, you know, two weeks to respond, and we didn’t hear a single thing back. So I went, and this is another naive mistake of mine that I’m gonna, you know, tell you why it was not a good idea. I went to Podbean. And to some of these platforms, that’s where the podcast was hosted.

And I filled out, you know, the trademark infringement things that they always tell you to do. So I filled that out and said, these are my trademarks. You know, this is my trademark certificate. You know, can you please take this content down? Because I can’t get a hold of the person that is running this whole thing.

Now, a few days went by. And I got the nastiest letter I think I’ve ever seen, and I’ve seen a lot. I gotta be honest with you. I’ve seen a lot in my career, even though I don’t practice law anymore. I have seen some letters in my time, but this one really took the cake. Not only did they refuse to acknowledge the validity of my trademark.

So their original, you know, response was, you don’t have a valid trademark. And even if you do, we’re going to apply to have it struck from the register. And then there was this huge litany of why my trademark’s not valid. And, um, I shouldn’t be speaking to pod bean and they’re going to sue me for defamation and for tortious interference, which just means they’re going to suffer some losses if that content gets taken down.

And there was just these crazy, you know, allegations and threats of injunctions. And I thought. But hold on a second. I’m the trademark owner. So, you know, a week or so went by and my lawyer, you know, sort of responded to this thing saying, look, are you or are you not going to comply with the cease and desist?

Because the law is. If you’re not we’re going to take legal action. And again, you know, the inundation just came back of letters saying, you don’t have any right to tell Facebook and pod bean and iTunes about this you don’t have any rights we’re going to sue you, blah, blah, blah. And this was really shocking to me.

And then. As

Anthony Perl: it would be, by the way, it is a shocking thing to have happen to anyone. But

Rhondalynn Korolak: unbeknownst to me, and it actually is even worse, because what I didn’t know is behind the scenes. So I didn’t have visibility of this yet, but behind the scenes, as soon as I sent the cease and desist letter, they tried to put her name in front of financial foreplay and go and trademark that with IP Australia, right?

For the same class of goods and services, right? So not only did they, it’s kind of the equivalent of saying, you know, Rhondalyn’s Big Mac, and then I’m going to go to IP Australia, and I’m going to try to trademark that, right? So that stuff doesn’t fly. But you can’t put your name in front of someone else’s trademark and then go ahead and try to register it for the same classes of goods and services, financial advice, education, that sort of thing.

But I particularly after

Anthony Perl: that, particularly afterwards, I mean, yours has already been registered at this point. Like it’s one thing if it hadn’t been registered, but you know, again, you’ve been registered already. So this is, it’s crazy, crazy stuff.

Rhondalynn Korolak: And so all this, you know, this was happening behind the scenes, but I didn’t know that I didn’t know about it until much later because Um, once she had been rejected, so she received now, I told you that I, I cease and desisted her November the 17th, 2020 by no, by December the 2nd.

So, like, only two weeks or something later, she had already received her first. Adverse examination report from IP Australia. So IP Australia told her, you don’t, you can’t trademark this, you know, somebody else already has a trademark for the same type of thing. And financial foreplay is the memorable and dominant element of this phrase.

So she knew that and then a couple of weeks later, they gave her a final report. So she had tried it accelerated or try to get some early determination and they came back on the 12th of January, which is just a couple of weeks later saying, no, you cannot use this. And this is why. And so they, you know, the hammer came down.

12th of January 2021. Now, I was able to apply through the Freedom of Information Act because I knew that I could do it to get the examination reports and find out about all of this stuff. So that’s how I started unwinding that, you know, she’d been kicked back and she still kept using, I still was getting legal, you know, Legal letters from her threatening me with this, that, and the other if I dared to tell anybody about my rights, and then the real kicker, this one is the absolute cherry on top of the cake, right?

I get this email from Podbean, which is the podcasting host platform, and they tell me, literally in writing, That she’s provided some documents that prove her right to use my trademark. And I’m like, say what? How does this bird from, you know, Sydney think that she magically somehow has the right to use my trademark?

And how is she making these assertions? And what is, what is the documentation she’s provided? So in trademark land, the two things that you need are a certificate, Or a legal judgment, right? So if you have one of those things, you’ve proven you’re right. She had none of those things, right? She had none of those things and she had these adverse, you know, examination reports from IPS right that she didn’t tell anybody about.

So she’s making assertions to Facebook, to Podbean, to. You know, Apple iTunes that she had the legal rights to use this trademark and that I was, you know, had no legal rights and this when we subpoena the documentation, because I want to know what did she say? Because the bottom of the email, said, we’ve been told not to give you the documentation.

And the correspondence so they weren’t allowed to show me what she had magically used to prove all of this stuff and and all of the platforms were telling me so we subpoenaed the documents right so I get the document and I’m looking at them. And I’m reading them because this all happened in court and the judges reading them, and the judge goes hold on a second here.

You know, is making some statements in relation to her rights that that don’t even appear to be correct in law. You know, and I’m looking at this, and then. I see at the bottom of the emails, she’s literally telling Facebook and other platforms that I cyber bullied and harassed her. And I’m thinking, am I being punked here, right?

Is Ashton Kutcher going to jump out of the, you know, from behind a bush and say, hey, Rhondalynn, you’ve been punked. It was absolutely beyond fathomable that this was happening. I don’t think I could have had, it was a perfect storm, right? Not only was this person denying that I had a trademark, they were unsuccessfully tried to trademark over top of me, they hid that information from the platforms when they were making these, you know, these representations that they had rights, and then the real kicker Was when they were being told that I was some horrible cyber bully and harasser, and I never even had contact with the woman never spoke to her never tried to text her her email nothing right, so I was thinking this is just absolutely ridiculous.

And so my lawyer just went back and said okay. This is your last cease and desist letter chance. Are you going to stop? Will you provide an undertaking that you’re going to take everything down? And can you give us a non confidential letter that we can use with third party websites to make them take the content down if you’re unable to do it?

And the answer that we got back to that was nothing. They just ignored us. They never really like said. You know, anything about that, it was all just, you don’t really have a trademark and we’ve, we’ve now rebranded and we’re taking some of the stuff down, but they weren’t really like committing to anything, right.

They were basically saying in a roundabout way, we don’t really have to take things down. And therefore we’re not going to undertake to take things down. And at this point I knew that it was still being used. I knew that the content was still alive. I could see stuff everywhere on Instagram, you know, even, you know, Facebook.

Facebook had a legal declaration from her that she knew of no reason why the content should be removed, right? So she signed a legal declaration. I don’t understand why, when she knew that IP Australia had already told her no, and then the content was still up. So I just said, okay, that’s it. I’m going to draw a line in the sand.

I’m going to raise the statement of claim because basically my lawyer advised me, he said, look, this is how it works in trademark land. If you have a trademark and you don’t protect it, the other person could end up eroding the value of your trademark because other people could then point to it and say, well, you didn’t sue that person and you didn’t make that person take it down.

Or they could end up actually, you know, applying to have your trademark struck or doing something. So I felt that I didn’t really have any choices. So I listened to what my, you know, IP lawyer suggested at the time, and I filed a statement of claim, and, you know, it went quite far, like it went quite far along, whilst all the content was still there.

So, you know, probably 10 months or so into the thing, so we’d had directions hearings, we almost even had a court date. And I found that it was still being used, you know, I saw she was speaking at a conference in Sydney and Melbourne using my trademark in March of 2020. And, you know, I’d see this crazy stuff like she, she promoted herself or she was being promoted by them and Momentum Media is a big company.

Momentum Media does about 12 different publications in aviation, accounting and law. Right. So they’re like, they do magazines and they hold awards, benefits things, right? So it’s a, it’s a multimedia company. And they were promoting her as coming to speak about how she’d used this wildly successful podcast with my trademark to create leads and increase revenue and maximise the ROI of her financial planning business.

But she was simultaneously in court with me arguing that she only made 161. And I’m thinking, well, one of these cannot be correct, right? Like, one of these things can’t be correct, right? You know, you can’t threaten to sue somebody for severe and quantifiable damages, but only say you make 161 bucks. You can’t.

You know, tell people that, you know, you’re going to speak at a conference and, you know, she gave testimony that Momentum Media somehow magically got the content wrong of what she was going to speak about. And that may be true. I don’t know if it’s true or if it’s not true. Maybe Momentum Media made a mistake.

But ironically, we subpoenaed her talent manager to provide the documents that included the contract, the invoice. The rate card and what she was agreed to speak about, and they ignored the court ordered subpoena and we never got the documents. So, I mean, my thinking is, you know, if you’ve got documents that are going to prove what you’re saying is true you’d produce them wouldn’t you like.

The whole thing just makes zero sense to me, right?

Anthony Perl: It is an absolutely bizarre story. Um, even to the point where, how is that, was the lawyer related? Like, why, why was a lawyer even trying to defend this when they must know that they don’t have the documents and they weren’t? Supplying information as well.

That’s strikes me as being a strange scenario for from from a legal point of view to find yourself. It’s 1 thing, you know, believing in your client and I respect that. That’s what they’re charged with doing. But isn’t there a point when you’re seeing that there’s. You know, the evidence is compelling against you, and they’re not, and the real evidence that you want is not being supplied, um, I don’t understand how that continues.

I

Rhondalynn Korolak: don’t understand it either. I’ve got to be honest with you, because to my way of thinking, sometimes there are cases where there are contentious issues, like people can argue, well, you could interpret it this way. Or you can interpret it that way. But the whole case really hinged on two things. So in trademark infringement, all you have to prove, and I say all you have to prove, making it sound like it’s simple, it isn’t, is that the identical or a similar mark.

So what was the mark that was used? In my case, it was financial foreplay. She had used both the identical mark, which is financial foreplay, and she’d used one that the court. Determined was deceptively similar, which was sugar mama’s financial foreplay, right? So that’s the first thing. That’s the first leg that you must prove.

The second thing that you need to prove for trademark infringement is that the mark is being used to promote goods and services that are the same or similar, right? So they start looking at things like, you know, well, if Rhonda Lynn has trademarked financial advice. What is financial advice? And did this person provide financial advice?

Now, this is where it also gets like, to me, I’m kind of laughing as I’m saying this, because it seems silly, but she testified under oath that she didn’t provide financial advice. Now, this is, so the financial advisor who’s online is saying that she didn’t provide financial advice as that term is defined in the Trademark Act, right?

So it’s about, you know, there were all these legal submissions, but the guy must have got paid, maybe he got paid extra money for coming up with all these, you know, pontificating and all these submissions that he made about whether that were recommendations were made. And if, if there’s no recommendation, then it can’t possibly be financial advice.

Well, the judge was kind of like, he’s old school. He’s an older Greek gentleman, right? So he wasn’t really, you know, he had to ask questions about what is an RSS feed and things like that. So, you know, he was, maybe it’s his first time that he’d ever encountered. Something in this realm. And the judge said, Well, hold on a second here.

You’ve testified that you didn’t provide financial advice. And the legal submissions were that you didn’t recommend anything. He goes, but according to your own words on this website, and that website, and that you called it financial advice in your own language, you wrote that. And she was basically arguing that even though she wrote it, The actual content was really only for entertainment and inspiration, right?

So the judge goes, okay, on your own website, you call it for that. When you attempted unsuccessfully to trademark it, you used the classes of financial advice and education. So surely you must have intended to use them for financial advice and education, because that’s what you did. And then finally. At the bottom of all this, he goes, I listened to some of the podcasts in their entirety, and here’s all the things that you recommended, financial products, financial services in the podcast.

So there can be no doubt that you provided financial advice. And I’m thinking like, is this for real? Like, have I gone all the way, for years this took me, gone to court, gone to trial, to have the entire thing come down to? You know, she did or she did not provide financial advice, and it was as simple as what the judge said.

Right? Like, I personally, you know, struggling to understand how they thought that was going to fly. Right? I don’t know. And they were stubborn. They refused to mediate. They refused to mediate. They refused to like, you know, she was just going at me hardcore. And I thought, I don’t know, like, am I missing something?

This case doesn’t make sense, right?

Anthony Perl: Eights. Eighties. Uh, and from the moment that I read it, when we started, you know, corresponding, uh, it struck me as bizarre and, uh, it’s still, the more I hear about it, the more bizarre it is. I hope you’ve been enjoying the conversation so far. We look forward to bringing you part two in the next episode of Biz Bites.

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