Category: Business Law

• How To Trademark a Business Name

  

  Last week a friend asked me if a business could trademark their name. Anyone who’s spent much time with me knows that the answer to every legal question is “It depends.” In this case it depends on whether your business name is trademarkable and if anyone else had claimed the same or a similar name for your category of goods or services.

  When you start a business, check the U.S. Patent and Trademark Office (USPTO) database to see if anyone has registered the name you want to use (or a similar one) for selling the same goods and services as you. If someone’s already using the name you want, you will likely be infringing on their trademark rights if you use the name on your products. They could force you to change your name and rebrand if you use the name that someone’s already registered. If you were using the business name on your products and someone registers the name before you, you’ll be in the Burger King situation where you can keep using your name, but only in your established market.

  Once you establish that your desired name hasn’t been registered by someone else, you have to look at whether the name you want is trademarkable. Not every business or product name can be a registered trademark. Here are the five types of trademarks.

  1. Fanciful Marks: Fanciful marks are words that didn’t exist before you stuck it on your products. Examples include Exxon and Kodak. These marks can be registered with the USPTO main registry.

  2. Arbitrary Marks: Arbitrary marks are words in real life, but they are stuck on a product that has no connection to the word. For example, the mark “Apple” for computers, cell phones, and digital music players is an arbitrary mark. The fruit has nothing to do with digital machines and gadgets. These marks can be registered with the USPTO main registry.

  3. Suggestive Marks: Suggestive marks are marks where if you think about it, you can make a connection between the mark and the product. “Playboy” as a mark for a men’s magazine is a suggestive mark. These marks can be registered with the USPTO main registry. It’s sometimes hard to discern the difference between suggestive and descriptive marks.

  4. Descriptive Marks: Descriptive marks merely describe the product. This includes businesses where the owner names the business after themselves. These marks can be registered on the USPTO main registry after they’ve established “acquired distinctiveness,” which usually means you’ve been using the mark for five years.

  5. Generic Marks: Generic marks are the name of the products themselves. It would be if you had an apple orchard and wanted to sell your apples using the mark “Apples.” If the USPTO let you register that mark, no other apple farmers could call their apples “apples” without infringing on your trademark rights. Generic marks can never be registered with the USPTO.

  This video may help. You can watch it below or see it here.

  If you want to know if your business name can be your trademark and the risks and rewards surrounding registering your mark, contact a trademark attorney in your community.

  You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
  You can also subscribe to the Carter Law Firm newsletter.
  Please visit my homepage for more information about Carter Law Firm.

  May 23, 2013

  •

  Ruth Carter

  •

  Business Law, Intellectual Property

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• Reddit’s New Privacy Policy – How Terms of Service Should Be Written

  

  Are you on Reddit? I love Reddit. It’s a great way to connect with the various online communities that matter to you.

  Reddit recently announced that its new privacy policy is going into effect on May 15th. You can read the text of the policy here. Seriously, go read it.

  What I love about this policy is how simply it is written. It’s straightforward, well organized, and written in English – not legalese. It’s a policy that Joe Average people can read and understand how the site will use their information. I appreciate that Reddit even said that they want their users to read and understand their policies.

  Reddit’s approach should be the standard way that lawyers write a company’s terms of service for their clients’ websites. They should be simple, direct, and be organized in a way that it’s easy for users to understand the site’s rules. They don’t need to be excessively long or use words that no one uses in real life.

  A website’s terms of service is a contract between the site’s owners and its users. If you disagree with a site’s terms, don’t use the site. It’s important when you join a website where you will be interacting with others or posting content that you understand your dos and don’ts as well as what the site can do with your information and anything you post.

  Some people think it’s ok to simply take another website’s terms of service, change the name of the company to their own, and slap it on their website. This is asking for trouble, especially if you don’t understand the terms that you’re copying. You may be creating rules for your users that you don’t want in place. Reading other website’s terms of service is a good place to get ideas if you want to try to draft your own, but it shouldn’t be a substitute for making sure your terms of service reflect your individual or company’s needs. You never know who draft the terms you’re copying.

  I love drafting custom website terms of service. I get to combine my client’s needs with what the law allows and come up with a document (in English) that will work for them. I know it sounds boring to some people, but to me it’s like a big puzzle that I get to figure out.

  If you operate a website where users get to post content or interact with each other, please make sure you have a solid set of terms of service that fits your needs. If you can’t afford to hire an attorney to draft your terms of service from scratch, at least have one to review your terms of service or pay for a consultation to discuss what your provisions should be in your terms of service.

  You can also subscribe to the Carter Law Firm newsletter.
  You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
  Please visit my homepage for more information about Carter Law Firm.

  May 9, 2013

  •

  Ruth Carter

  •

  Business Law, Geek Law, Internet law

  Arizona business lawyer, Arizona small business lawyer, Carter Law Firm, internet law firm, Internet lawyer, Reddit, Ruth Carter, small business lawyer, website privacy policy, Website Terms of Service, website terms of service template, website terms of use

• FAQs about the Legalities of Social Media

  

  I had the pleasure of speaking at the Public Relations Society of America’s Western District Conference last weekend. I led two sessions: “So you want to do a flash mob” and “The Legal Side of Blogging: 10 Questions to Ask Before you Hit ‘Publish.’” Both sessions were great and I wanted to share some of the frequent questions I get when I talk about the legalities of social media.

  What should you do if you’re outsourcing your blog content?
  You need a kick ass contract that clearly states who owns the copyright in the content that is created. If the hiring company obtains copyright, does the blogger get permission to put a copy of the work in their portfolio to obtain other work? The contract should also state who is responsible if there are any problems related to the work (i.e., copyright infringement claim) or if there are any disputes related to the contract.

  What should you do if you want to use a photo from a company’s site, such as if want to write a positive review of their company?
  There’s a chance that using the photo could qualify as fair use; however it’s probably best to avoid the possibility of being hit with a copyright infringement claim by asking the company if you can use their photo. You never know who owns the rights to an image and if there are any restrictions related to using it.

  What’s the worst case scenario if you use an image from Google Images without verifying that it was available for use with a Creative Commons license or had been released to public domain?
  You could be sued for tens of thousands of dollars for copyright infringement. I always say that just because someone sues you that it doesn’t mean they’re going to win, but in this case, they might. You can still be sued and lose even if you didn’t mean any harm.

  I get permission to use every photo on my blogs or use photos that are available under Creative Commons licenses that allow me to modify and commercialize each image.

  What if you’ve been using Google Images or you haven’t kept track of what images you’re allowed to use?
  Probably no one wants to hear this, but I’d rip every image out of your site and start over, making sure that you own or have permission to use every image on your site.

  These are my rules of thumb when it comes to social media:

  • Assume everything you post online will be seen by your best friend, your worst enemy, your boss, and your mother. If you’re not ok with one of those people seeing what you want to say, don’t post it.
  • Don’t post anything online that you wouldn’t put on the front page of the newspaper.

  For more information about the legalities of social media, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

  You can also subscribe to the Carter Law Firm newsletter.
  You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
  Please visit my homepage for more information about Carter Law Firm.

  April 25, 2013

  •

  Ruth Carter

  •

  Business Law, Intellectual Property, Internet law, Legalities of Blogging, Photography & the Law

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• DMCA Abuse

  

  The Digital Millennium Copyright Act (DMCA) is part of the copyright law. Its purpose is to protect people who provide online forums but don’t control the content people post to them – like YouTube and Pinterest. If they receive a notice that material on their site is allegedly copyright infringement, they must remove it. This law gives content creators a way to react to copyright infringement when someone posts their work online without permission. Instead of sending a cease and desist letter to the person who stole their work, they bypass them and deal with the infringer’s webhost instead.

  Lately, I’ve seen a few instances where people have been improperly using the DMCA to get material removed from the internet that they don’t like. I’m starting to refer to these acts as DMCA abuse.

  1. Using the DMCA to address TM Infringement
  The DMCA should only be used for copyright issues – when you suspect someone is using your original content without your permission. Don’t use it to removed suspected instances of trademark infringement.

  In a recent incident, GoPro allegedly sent a DMCA takedown notice to DigitalRev’s webhost to remove a picture of its camera from the site. The photo was in article that compared GoPro against another camera. GoPro didn’t think DigitalRev copied their content, but that they were using a picture of the camera that had the wrong branding. GoPro should have sent DigitalRev an email with a correct image of the camera instead of getting the whole article pulled for alleged copyright infringement.

  2. Using the DMCA to Eliminate the Original
  This story really bothered me. Somebody copied someone’s original content onto their site, and then used the DMCA to claim that they were the real owners and get the original removed for its site. Thankfully the original author could get their work put back on their site by sending a DMCA counter takedown notice.

  Apparently this is a common incident. This behavior was so disturbing, I had to make a video about it.

  If you think you have questions about how you, your brand, or your content is being used online, please consult an intellectual property attorney. Don’t just send a DMCA takedown notice – that may not be the right tool to address your problem. When you send a DMCA takedown notice, you attest under the penalty of perjury, that your statements are true. If you send a DMCA takedown notice and it turns out what you did qualifies as what I call DMCA abuse, you may have committed a crime.

  For more information about copyright, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
  You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
  Please visit my homepage for more information about Carter Law Firm.

  March 28, 2013

  •

  Ruth Carter

  •

  Business Law, Intellectual Property, Internet law, Photography & the Law

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• Does Your Employer Have a Social Media Policy?

  

  Does your company handbook have a social media policy in it? And I mean a policy that talks about what you can and can’t say on your social media accounts. I don’t mean the policy that a lot of employers have about not being on Facebook and Twitter during company time or on company computers.

  Seriously, go check. I’ll wait.

  If you don’t have one, don’t feel bad. About a year ago 76% of companies didn’t have a social media policy. That’s disturbing. I’m surprised when I meet someone who isn’t involved in some type of social media. It’s staggering that employers haven’t kept up with the times.

  People visit this site all the time looking for information about what their employers can and can’t do regarding social media – Can my employer require me to promote them with my personal Facebook account? (No.) Can my employer control my Facebook? (No.) Can my employer require me to delete my social media account? (No.) Can my employer print my Facebook pictures? (Yes.) Can I be fired for how I spend my personal time? (Maybe.) Can my employer monitor my personal Facebook page? (If it’s public, yes.)

  That’s just a handful of the questions I’ve gotten in the last month.

  The issue is clear – If your employer doesn’t have a social media policy, ask for one. And tell them they better check the latest report from the NLRB before they write it.

  Left to their own devices, most employers will write a social media policy that says you have to promote the company with your personal accounts and/or you can’t say anything negative about the company online. Both of these provisions are illegal. The former violates Facebook’s terms of service; the later violates the NLRA.

  What’s the NLRA? It stands for National Labor Relations Act. It protects employees’ abilities to talk amongst themselves about things like wages and work conditions. You’re allowed to do it publicly (even on the internet) and you don’t have to be respectful about it. If you’re ever fired for something you did on your social media account and you think it was protected by the NLRA, you can file a complaint with your employer with the National Labor Relations Board (NLRB). In the worst-case scenario, your employer will be required to give you back pay, pay you damages, and offer you your job back.

  My lawyer friend who litigates these cases recently told me that $10,000 was a low amount that an employer would be ordered to pay in these situations if they fired someone for a reason that violated the NLRA.

  I tell every employer that they need a social media policy that provides a list of dos and don’ts for employees. I also tell them to hire an attorney to write the policy for them to ensure that it complies with the NLRA. Then I tell them to at least have their attorney review it every 6 months. The NLRB regularly publishes new reports based on their cases so the policy that was valid when it was written may be invalid now.

  This is one of those times when you can’t just download a social media policy template and call it good. This area of law is changing too often.

  It’s better to pay a chunk of money now to have someone write your social media policy than to have to pay $10,000+ in back pay, damages, attorneys’ fees, plus whatever it costs for your headache and stomach pain medication to treat the stress of dealing with an NLRB investigation. This is a problem a lot of employers don’t realize they have until it’s too late, and it doesn’t have to be. Call an attorney who understands social media and the NLRB to draft your policy for you.

  If this was TL:DR, I made a video. You can watch it below or here.

  You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
  Please visit my homepage for more information about Carter Law Firm.

  February 21, 2013

  •

  Ruth Carter

  •

  Business Law, Employment Law, Featured Post, Internet law

  Arizona business lawyer, Can my employer control my Facebook, Can my employer monitor my personal Facebook page, Can my employer print my Facebook pictures, Can my employer require me to delete my social media account, Can my employer require me to promote them with my personal Facebook account, Carter Law Firm, Internet lawyer, Phoenix business lawyer, Phoenix small business lawyer, Ruth Carter, sample social media policy, social media lawyer, Social media policy

• Publishing Contracts: Copyright Assignment vs Copyright License

  

  I had the pleasure of speaking about the legalities of publishing at Changing Hands Indie Author Conference on February 9, 2013. My session covered the basics of copyright, the importance of registering your copyrights and publishing contracts. I wanted to do a recap of the two types of publishing contracts from a copyright perspective: copyright assignments and copyright licenses.

  A copyright is the rights you get in your work. Your rights are created the instant you have an original work of authorship fixed in a tangible medium. As the copyright holder, you have the exclusive right to copy, distribute, display, perform, and make derivative works based on your original work. If you want to let someone publish your work, you need a copyright assignment or a copyright license. This should be a signed contract between the parties and it should be explicit about the rights you’re giving up (if any) and what you will get in return.

  Copyright Assignment
  When you give someone a copyright assignment, you give them your copyright. When you have a copyright assignment, you do not own your copyright anymore; the other party does. If you publish your work after you assign it to someone, you will be committing copyright infringement, even though you were the original author of the work. Some publishers require you to assign your copyright to them or else they won’t publish your work.

  If you give someone a copyright assignment and you later regret the decision, you have to buy your copyright back from them. I know at least one artist who sold the copyright in his work and later purchased it back because it was more lucrative for him to control it.

  Copyright License
  If you grant someone a copyright license, you retain ownership of your copyright and you give the other party permission to use some or all of your copyright rights. You may grant a publisher the rights to publish your work in print and/or as an ebook but retain the right to create an audio version of your work. J.K. Rowling retained her internet rights to the Harry Potter series when she negotiated her contract with her publishers, which is why she could create Pottermore.

  If you license your work, the license should explicit state whether the license is exclusive or non-exclusive, time-limited or perpetual, and clearly state how you will be compensated for granting the other party the license.

  Publishing contracts are complicated and it’s best to have a lawyer review the contract before you sign it to ensure you understand what rights you’re giving up and what rights you get to keep. As always, if there’s a portion of a contract that you don’t understand, don’t sign it.

  I also created a video this week about the difference between copyright assignments and copyright licenses here.

  
  You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
  Please visit my homepage for more information about Carter Law Firm.

  February 14, 2013

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  Ruth Carter

  •

  Business Law, Intellectual Property

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• How To Get a Free Consultation with Ruth Carter

  

  I’m excited to share that I’ve teamed up with Gangplank in Chandler to offer free legal mentoring services on the first Monday of the month from 1pm until 4pm. I can see 3 people for 45-minutes each every month at no charge.

  

  My legal mentoring hours are a great opportunity to informally bat around your ideas and questions about your projects and business. Coming to my mentoring hours does not create an attorney-client relationship between us. We won’t have any ongoing obligations to each other unless we decide to create a formal working relationship.

  Gangplank provides free collaborative workspaces in Arizona, Virginia, and Canada. They provide the physical and social infrastructure for creative people to launch their startups. These are wonderful places for freelancers and new business owners to work. In Arizona, Gangplank has locations on Chandler, Avondale, and Tucson.

  I love working with Gangplank. They have a fantastic group of dynamic people who have an enormous amount of creativity and drive. They have a very informal environment and they do incredible work. It fits brilliantly with my desire to be the approachable lawyer who wears t-shirts.

  

  Gangplank in Chandler is located at 260 South Arizona Avenue. Their events calendar shows their mentors’ availability and also all their other events like their weekly brown bag presentations, hacknights, and workshops. They have a wealth of other mentors too who provide assistance in the areas of business, leadership, marketing, design, finance, and technology.

  Gangplank is in charge of scheduling the mentoring hours so please check their event calendar for my availability. You can book a mentoring appointment with me by emailing them at chandler@gangplankhq.com.

  Please note: my mentoring hours at Gangplank are not for my ongoing clients with whom I’ve created an attorney-client relationship. These appointments are for people who think they might need a lawyer, people who just want some general legal information, law students, anyone else who wants to chat for an hour.

  You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
  Please visit my homepage for more information about Carter Law Firm.

  January 31, 2013

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  Ruth Carter

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  Business Law, Employment Law, Flash Mob Law, Intellectual Property, Internet law

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• Affordable Legal Services for New Business Owners

  

  Some of the lessons I’ve learned in my first year as an attorney is that a lot of entrepreneurs, especially those who are operating on a shoestring budget, don’t seek out legal services when they start their business. There seems to be three main reasons why a new business owner does this:

  1. They think it’s too expensive.
  2. They are afraid it’s going to be complicated.
  3. They don’t understand the legalities of starting a business.

  None of these are valid reasons for not calling a business attorney.

  I recently attended a business seminar where a young man admitted he put off creating a business entity for years because he thought it was going to be hard. He was blown away by how easy it was. His fear put him at serious risk because until he created an entity, he could have lost his personal assets if the business was found liable for causing damage to someone because he didn’t have an entity that separated the business’ assets from his personal assets.

  Before you assume you can’t afford legal services, call an attorney and ask what you need and what it will cost. Even if you can’t afford everything a lawyer could do for you, a lawyer who understands your situation will work with you and your budget. They will tell you what you can do on your own and likely provide resources to help you do it. They can tell you when it’s worth it to pay an attorney to do something for you, and the ramifications you could face if you don’t.

  When you can’t afford to have your attorney draft a document for you, ask them if you could purchase a consultation to discuss how you could do it yourself or if you could draft it yourself and pay them to review it. There will be times when it’s cheaper and better use of your time to hire an attorney to draft the document from scratch than to try to write the first draft yourself. Call the attorney you’d hire to review the documents first to make sure that’s going to the best course of action. It might be more expensive to fix what you wrote.

  There may also be organizations that provide cheap or free classes and consultations for business owners in your community. I spend three hours on the first Monday of the month providing free legal mentoring at Gangplank in Chandler. These services are a great way to get your needs met while keeping you within your budget or to free up more of your budget to afford your business’ legal needs.

  If you’re a new business owner or thinking of starting a business, please call a business attorney in your community to discuss your legal needs. I’ve worked with enough clients to know that it’s easier and cheaper to do things right the first time than to clean up the mess that results when you don’t.

  You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
  Please visit my homepage for more information about Carter Law Firm.

  January 24, 2013

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  Ruth Carter

  •

  Business Law

  affordable legal services, Arizona business lawyer, Arizona lawyers free consultation, Carter Law Firm, cost of starting a business, free consultation lawyers in Phoenix AZ, legal aid for business, legal aid in Arizona, Phoenix business attorney, Phoenix legal aid, Ruth Carter, start a small business, Starting a new business, starting own business

• Choose Your Strategy to Protect Your Work Before Posting it on the Internet

  

  A friend recently asked me about a common situation her clients face. They are artists who, before the internet, could only show their work to a large audience at art festivals. She said these artists hesitate to market their work online because they’re afraid that it could be stolen.

  Could their work be illegally copied if they show it on the internet? Yes. I worked with an artist last year who had their entire catalog illegally copied.

  Should they us the internet to market their work despite this risk? Probably. If you’re an artist you have to weigh the risk of having your work illegally copied against the benefit of reaching a larger audience.

  My unsolicited advice to artists is to decide how you want to respond if your work is stolen before you put your work out there and plan accordingly.

  • If you want to sue the people who illegally copy your work, you have to register your copyrights with the U.S. Copyright Office.
  • If you want to license your work, meaning people can pay you for the right to reproduce your work on their sites, you need to have licensing terms and fees. This way people can legally purchase the rights to use your work and you can send a bill to the people who illegally copy your work. This recently happened to a friend of mine.
  •  If all you want to do is force them to remove the image when you detect someone’s stolen your work, you need to understand the Digital Millennium Copyright Act or know an attorney who does who can send the proper takedown notice on your behalf.

  When you put your work out there, you should be diligent about watching the internet for potential infringement. Often times people think they can use your work if they provide an attribution and a link to the original. What they’ve really done is made it easy for you to determine who is using your work without your permission.

  My two cents on this issue is you shouldn’t let your fears about copyright infringement prevent you from using the internet to market your work if you’re an artist, but you should have a strategy in place in advance for dealing with it when it occurs.

  For more information on this and related topics, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed, available on Amazon.

  You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
  Please visit my homepage for more information about Carter Law Firm.

  January 17, 2013

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  Ruth Carter

  •

  Business Law, Intellectual Property, Internet law, Legalities of Blogging, Photography & the Law

  Arizona lawyer, Carter Law Firm, Copyright infringement, Copyright lawyer, copyright registration, copyright strategy, Digital Millennium Copyright Act, DMCA takedown notice, intellectual property law firm, internet copyright infringement, Internet lawyer, IP law firm, IP strategy, Phoenix lawyer, Ruth Carter, social media lawyer

• Register Your Blog’s Copyright Every Three Months

  

  DISCLAIMER: Recent conversations with the Copyright Office have led me to change my stance regarding blogs and copyright registration. Please see this post for my updated views.

  My cause for the next year is to encourage independent writers and artists to register the copyrights in their work. If you have a blog, you have to register your content every three months to maximize your options when someone steals your work.

  I know a lot of people wouldn’t notice if someone stole their content, but what if someone did that to you? What if someone did that to you and it pissed you off? You might want all your options to be open for you then.

  The U.S. Copyright Act says you get the most options when someone steals your content if you register your work within three months of publication or one month of learning of the infringement – whichever happens first. For most bloggers that means they have to register their blog content every three months. Here is a simple breakdown of your possible options depending on when you registered your work.

  Possibility #1 – You Never Registered Your Content
  The law says you have to register your copyright to sue for copyright infringement. If you refuse to register your work, that’s your prerogative, but that means you can likely only send a cease-and-desist letter or a DMCA takedown notice if someone steals your content.

  Possibility #2 – You Registered Your Content After Three Months of Publication
  You can sue for copyright infringement, but you can only ask for your “actual damages.” This is the amount of money the thief made from stealing your work and/or the amount of money you didn’t make because he stole your work. In the blogging world, your actual damages could easily be $0.00. Most people don’t sue for actual damages unless the thief made bank off what he stole. You’d also be responsible for paying your attorneys’ fees.

  Possibility #3 – You Registered Your Content Within Three Months of Publication
  You can sue for copyright infringement, and you can ask for “statutory damages.” Statutory damages can be as high as $150,000, regardless of how much money you lost or the thief made from stealing your work. If you register your work within this time frame the court can make the thief pay your attorneys’ fees too. A lot of attorneys ask if and when you registered your work when you come to them with a copyright claim because they suspect you can’t or won’t want to pay the legal fees that go into fighting one of these cases.

  Registering your copyright is preparing for the worst-case scenario. Hopefully you’ll never need to deal with copyright infringement, but you may want to have all your options available to you if it does. You can read about my experience registering my blogs’ copyrights in a post I did just after my first registrations. Registering a literary work only costs $35 per application.

  If you are a writer, blogger, or artist, please consult a copyright attorney about the best ways for you to protect your work. Many people can register multiple works under one application, but there may be instances where it’s worth it to register a work separately.

  You can connect with me via Twitter, Google+, Facebook, and LinkedIn, or you can email me.
  Please visit my homepage for more information about Carter Law Firm.

  December 27, 2012

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  Ruth Carter

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  Business Law, Intellectual Property, Internet law, Legalities of Blogging