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  • Michelle Murphy
  • March 19, 2019 05:11:19 PM
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Wilson Murphy Law discusses the legalities of your small business including trademarks and copyright registration , as well as contracts.

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Cardi B Filed a Trademark: You Should Be Doing The Same

It was only a matter of time before Cardi would try to trademark her signature slogan “Okurrr”. Cardi decided to file an application to register her trademark […] The post Cardi B Filed a Trademark: You Should Be Doing The Same appeared first on Wilson Murphy Law,...

It was only a matter of time before Cardi would try to trademark her signature slogan “Okurrr”. Cardi decided to file an application to register her trademark in association with paper cups, posters, and clothing, according to Page Six. We all know Cardi is about making money, as she has told fans to Google ways to become a millionaire.

cardi b saying okurrr and files a trademark

1. Deter copiers

Have you ever walked into a boutique or a nail spa, and you knew they meant business? Yea, I know we all know the saying, don’t judge a book by it’s cover. But there are just some things that make you look professional and like you are running s*it. That’s what the ® symbol looks like to your customers and competitors. They see it like you have taken your brand to the next level by registering it with the United States federal government. This in turn may shy away a person or company who wants to use your name or logo or any other trademark within your business to get customers.

There’s so much thievery nowadays, even by big brands who think that because they have the money they can get away with anything. *Ahem, I’m looking at you Forever 21, Urban Outfitters, the Kardashians, and a ton of the big luxury fashion brands*. But if you have a registered trademark, there’s a better chance that a person or company would not want to fight in court. And this is a great way to segway into point #2.

2. Sue infringers in Federal Court

The only way you can sue in Federal Court is if you register your trademark. There is some common law trademark protections but honestly, it doesn’t do much if someone in Texas tries to infringe on your trademark. That’s because common law trademark only covers you in your immediate geographic location. If you file and register your trademark, the court presumes that you are the owner of the trademark from the outset. You may also be granted actual costs from having to file a lawsuit, attorney’s fees, and statutory damages up to $200,000.00. 

3. Professional and trustworthy

By filing a trademark and using the ® symbol, there is a level of professionalism that people see, like I said above. People think that if you have registered your trademark, that your trademark carries value. And that you are a brand that will continually grow in size and money.

4. Leverage

If you file a trademark registration application, you will be able to send a cease and desist letter. The letter may have more impact, because they are likely to take it more serious. And you may be able to get them to stop their behavior without resorting to filing a lawsuit because they know you are the one that owns that trademark. 

5. Protection from US Customs if someone tries to import products using your trademark

Lastly, if you sell products and you registered your trademark, the products with your trademark will be stopped by US Custom and Border Protection. The products will be seized and destroyed if someone is infringing on your trademark. 

These are all really good reasons to think about filing a trademark application. If you want to learn more about the trademark process at Wilson Murphy Law, you can find the information here. Or you can schedule a Clarity Call or Strategy Session if you are  you are ready.

The post Cardi B Filed a Trademark: You Should Be Doing The Same appeared first on Wilson Murphy Law, P.A..


The Ultimate Guide On What You Can Trademark (the last one is surprising!)

Many people in the real world are misunderstood on what you can trademark. Most people are under the impression that everything can be trademarked. But, the United […] The post The Ultimate Guide On What You Can Trademark (the last one is surprising!) appeared first on Wilson Murphy Law,...

Many people in the real world are misunderstood on what you can trademark. Most people are under the impression that everything can be trademarked. But, the United States Patent and Trademark Office (USPTO) have rules about trademarks they allow. This guide will take you through what the USPTO accepts as a trademark. If you need a refresher on what a trademark is, check out this post.
 
Now… let’s get strarted on this fascinating topic, shall we?
 

1. Name and Business Names

 
So, of course we know that your business name can be trademarked, if you are using the name to sell goods or services. But you can also trademark your name if you are using your name to sell goods or services.
 
For example, Kylie Minogue and Kylie Jenner battled over the trademark Kylie. Kylie Minogue won that battle because her fans know her by Kylie. Kylie Minogue’s fans have identified her as Kylie before Kylie Jenner was born. Minogue’s lawyers believed that if the USPTO granted Kylie Jenner the trademark, “it would violate and diminish the prior and superior rights” of the singer and likely create “confusion resulting in damage and injury” to her.
 
A lot of people’s fave artist, Beyonce, is an ongoing battle to trademark her daughter, Blue Ivy’s name. You may think that just because Blue Ivy is somewhat of a celebrity, that’s enough to trademark her name. WRONG! Beyonce registered Blue Ivy’s name under a trademark class to sell baby goods. A trademark class is a category that you sell your goods or services under. In 2017, an event planning company named Blue Ivy opposed the name and there has not been a resolution yet.
 
The takeaway from this is that you have to be selling goods or services, if you are going to try to trademark your name. Also, the USPTO will not allow you to trademark only your last name to preserve it, generally. If the last name acquires a secondary meaning through use, the USPTO may allow you to trademark the name.
 

2. Slogan

 
Does “Just Do It” sound familiar to anyone? Yes, you can trademark your slogan. But it must correspond to a good or service that you are selling (shocking, i know!) So if you use your slogan for an advertising campaign or on your products, then it is trademarkable (maybe a word? Idk). But sometimes your slogan has to acquire a secondary meaning. That means that when someone sees or says your slogan, that your product or service comes to mind. This is likely how Nike’s slogan became a trademark.
 

3. Domain name

 
Ah, domain names. I don’t know if you guys realize it, but the law drags its feet when it comes to catching up with technology. Hello… Reno, Nevada still outlawed sex toys until  2009.  Nevada of all places *rolls eyes*.  Anyway back to domain names. A domain name can be trademarked if it is used in connection with a website to sell goods or a service. A good example of a domain that has been trademarked is godaddy.com. I want to discuss some important aspects of domain names and trademarks to keep you outta trouble.
 
NUMBER ONE: Just because you have a domain name, does not mean you have a trademark.
 
NUMBER TWO: Buying a domain name without doing your research, may result in trademark infringement. if that name is a registered trademark.
 
So make sure you do your research before choosing a domain name because you may lose it. All that marketing and all that traffic you’ve drummed up could vanish in a snap. You’ve worked too hard for that! So take a little bit of time in the beginning to dig and snoop around when choosing a domain name. Pretend it’s like you’re checking up on someone who you don’t care about…but maybe care about a little…you know… just to see what they’re up to it.
 

4. Logos

 
Ah… the logo. The thing you’ve spent $500 on to create and what everyone thinks of when they think of a trademark. Your logo becomes a trademark when you use it to sell goods or services. But just having it on a shirt or mug does not make it a trademark. The logo needs to be on your packaging, if you sell goods. If you are a service based business, the logo on your advertisement or webpage is enough.
 
Some familiar logos, you may wonder? The golden arches (Mcdonald’s), the red bullseye (Target), and the swoosh (Nike).
 

5. Color

 
4 words…the little blue box. What comes to mind? Good ol’ Tiffany & Co. The USPTO will register colors as long as the colors area a recognizable component to your brand. Colors usually need to acquire secondary meaning to be registered with the USPTO. That means that over time people associate the color with your brand. If you try to register red, and you’ve only been in business for 6 months, the USPTO will likely deny it. But over time, you will have a better chance of registering that red color. And no, I don’t have an exact time because it’s under the USPTO’s discretion.
 

6. Packaging

 
I am one of those people that loves to know random facts. So much so, that my husband calls me a person who knows stupid knowledge. Whether you know it or not, Coca Cola has trademarked their packaging. The USPTO will register packaging if its distinctive or has gained secondary meaning. Product packaging must also be nonfunctional to be protectable. This means that your packaging doesn’t serve a particular purpose. The packaging must be something that sets your goods apart, such as a skull shaped vodka bottle. The skull shape doesn’t serve a particular purpose. But, it is distinctive from other vodka bottles and how a consumer recognizes the brand.
 

7. Sounds

 
Did you know that some of the sounds that you hear everyday are trademarked? This includes the NBC chimes, the MGM lions roaring, and the Mr. Softee ice cream truck song. How many of you guys remember the ice cream trucks in your neighborhood? It’s what childhood dreams are made of *sniff sniff*. The chimes, the lions, and the jingle of the ice cream truck are all sounds that function on how you recognize these brands. Remember, any old sound can’t be trademarked. The sound has to serve as a way for consumers to identify your brand.
 

8. #Hashtags

 
Remember what I said in #3, about how the law is late to catch up on technology? Well, they may have redeemed themselves by including hashtags into the trademark world. The USPTO states that, “A mark comprising of or including the hash symbol (#) or the term ‘hashtag’ is registerable as a trademark of service only if it functions as an identifier of the source of the applicant’s goods or services.” Back in 2016, the number of hashtag trademark applications had increased 64% in one year. That was 3 years ago, so I can only imagine that the number has increased. Many companies use their hashtags to find influencers and to engage with consumers. So it only makes sense that they would want to trademark their unique hashtag. Remember, if you want to trademark a hashtag, it still has to be distinctive and will not cause confusion among consumers.
 
P.S. Sticking a hashtag in front of a name, does not remove the likelihood of confusion element.
 
I hope this has helped you out while you are on your trademarking journey. Trademarking is neverending because as time changes, so does the law. If you need help getting started on this journey, schedule a consultation.

box with link to how to trademark tips

The post The Ultimate Guide On What You Can Trademark (the last one is surprising!) appeared first on Wilson Murphy Law, P.A..


5 Ways to Protect Your Photos on Instagram (+ bonus tip)

So when you were in elementary school or middle school, how many of you all used to cover your papers so no one would copy your answers? […] The post 5 Ways to Protect Your Photos on Instagram (+ bonus tip) appeared first on Wilson Murphy Law,...

So when you were in elementary school or middle school, how many of you all used to cover your papers so no one would copy your answers? *raises hand* Yes, I was that kid and it explains my Type A Personality at an early age. Was I a nerd or a geek? Don’t know, don’t care! I just know I studied way too hard to let any old somebody copy me, amiright? Yea, no?

One thing I know is how hard it is to run a business, and how hard it is to create all of this content for your readers. I know I struggle with blogging once a week. It’s hard work. And those who make their bread and butter off of blogging and creating content, I know it makes you angry to see someone stealing your work and taking the credit for it! Photographers, this goes for you too. I can only imagine someone using MY PHOTOS that I worked so hard to create and edit, and pass it off as theirs.

According to The Verge, Instagram has ONE BILLION followers on the site. ONE BILLION! That means there are 999,999,999 people who can steal your photos on Instagram and pass it off as yours. Although we can’t stop the thieves, we can deter them! Kinda like when you have an ADT sign in your yard, but you know good and durn well you don’t have the actual alarm system.

So in this blog post, I am going to give you 5 ways that you can protect your photos on Instagram.

1. Register photos with the Copyright Office

Registering your photos with the Copyright Office is the #1 way to protect your photos on Instagram. I have given you some of the benefits of registering your photos with the Copyright Office, like statutory damages and attorney’s fees.  Alexa, play Cardi B’s money.

Lemme list out some other benefits for copyrighting your photos:

• To file an infringement case in court, you MUST register your work. If a registration has not been filed, then you are SOL. Well, kinda. If the infringement happened within that three months, you can still register and then file suit. If the infringement happened and three months have passed, you have forfeited the big bucks (i.e. statutory damages and attorney’s fees).

•If you file an infringement suit, and you are already registered, the Copyright Office is going to assume you are the owner. That’s one hurdle that will get you closer to winning your case.

• Registering your photos with the copyright office will establish a record with the U.S. Customs and Border Protection for protection against the importation of infringing copies. Has nothing to do with IG, but who doesn’t like learning more!?

2. Use the copyright symbol to protect your photos on Instagram

Put a copyright symbol on your photos. Although, this is a poorman’s copyright, it does put the public on notice that you created this photo. Although you don’t have the same protections as when you register your copyright with the Copyright Office, the copyright symbol may deter people from using your photo. Also, if you register your photo with the Copyright Office within 3 months of publishing your work, this includes publishing to Instagram, you can be eligible for costs, statutory damages, and attorneys fees if someone infringes on your photo. But make sure that you register the photo within 3 months. If you don’t you may be giving up attorney’s fees and statutory damages, if you decide to sue someone for infringement.

Format for your copyright notice: © 2019 Company Name or Author Name

3. Watermarking your photos to protect them from poachers on Instagram

Another way to protect your photos on Instagram is to watermark your photos. Watermarking your photos also lets others know through your watermark, that you were the original creator of the photo. However, we all know how easy it is to download a picture and remove the watermark from the photo. There’s so much technology that is being used for evil, although intended to be used for the good. But if someone does takes off your watermark, they are determined to steal from you and that’s when that copyright registration comes in handy. Because you can sue the pants off of them. That’ll teach em!

4. Report the infringement to IG

Instagram already has there own way to report if someone is infringing on your copyright. Click on this link, to learn about Instagram’s copyright policies. It is unclear if your copyright has to be registered, but you can probably reach out to them directly to get a little bit more information.

5. Send a cease and desist letter

There are literally companies that look for people who infringe on copyrights and trademarks. So if you notice that someone is using your photos on Instagram, you can send the company or user a letter directly. You should ask them to take down your work and demand compensation since they stole from you. But word of advice, if you aren’t ready to go to court, don’t go threatening people with a lawsuit and asking for an exorbitant amount of money. And remember, if the photo isn’t registered with the Copyright Office, you may only be able to get actual damages (which are harder to prove), and not statutory damages and attorney’s fees.

Bonus: Did y’all know that you can protect your photos by putting the metadata in your photos!

If you edit your photos on Photoshop or Lightroom, you can add copyright information to the metadata of the picture. I think Instagram removes the metadata automatically from your photos. But you can still use this method on your website to protect your photos. Although, poachers can still remove the metadata, it’s another way to deter those from stealing from you. And if they don’t know about this method, your metadata will still be on the photo as proof that they have infringed on your copyright. To find out how to put metadata on your photos through Lightroom, click here. To find out how to put metadata on your photos through Photoshop, click here.

The post 5 Ways to Protect Your Photos on Instagram (+ bonus tip) appeared first on Wilson Murphy Law, P.A..


5 Legal Mistakes Influencers are Making (and how to fix them)

Like most people today whether in business or for yourself, the goal is to gain followers. I mean, for me, followers equals clients and that’s pretty much […] The post 5 Legal Mistakes Influencers are Making (and how to fix them) appeared first on Wilson Murphy Law,...

Like most people today whether in business or for yourself, the goal is to gain followers. I mean, for me, followers equals clients and that’s pretty much why I run my business (shocker! no clients, no business). But with more followers, comes legal responsibilities that you may not be aware of. Make sure that you are not making these legal mistakes as your audience becomes bigger, and more brands start knocking at your door.

1.Failing to notify your audience that your post is #sponsored


The FTC (Federal Trade Commission) is cracking down on influencers who are not letting their followers know that they are getting paid to promote content. The FTC is warning influencers such as Naomi Campbell and Lindsay Lohan for not disclosing sponsorships. So remember, if a company is sponsoring your post (i.e. paying you to post), you must disclose that to your audience. This disclosure must be clear and visible.

So, if you are posting a video on YouTube, and a brand is paying you to review the product, putting the disclosure in the description box is not enough. But just receiving the product for free does not require disclosure. The disclosure needs to be superimposed in the video itself. In addition, if a brand is sponsoring you on IG, #ad is enough, but it should be clear. Do not stuff the disclosure into 30 hashtags, because the consumer will overlook that. Limited space (ahem *Twitter*) does not exempt you from disclosing that a brand is sponsoring the promotion. For more information about following the FTC guidelines, click here.

Here is a recent order from the FTC settling allegations from a PR firm and a publisher who hired athletes to post endorsements on social media for the repellent without disclosing they were paid. Although this article does not discuss if the athletes got in trouble, make sure that you are notifying your audience of sponsorships. You do not want to be on the FTC’s radar.

 

2. Using photos that you don’t have a release or licensing agreement for


As an influencer or creator yourself, you know how awful it feels to see your work on someone else’s page with no credit, no permission, or no payment. So if you know how terrible it feels, don’t do it to someone else! Using someone’s photos without their permission can land you in hot water.  If you have permission through a release or licensing agreement, make sure that you are adhering to the provisions of the agreement. For example, if you are using stock photography, some photographers prohibit commercial use. If you do not follw that stipulation, the photographer can sue you. Even photography that is royalty free may require you to give credit, so pay attention to the terms and conditions. I know people don’t usually read the terms and conditions, but get into the habit. Especially, if you want to stay out of legal trouble.

3. Not reading or understanding the terms of a collaboration/influencer marketing agreement


One of the biggest legal mistakes influencers make are not reading what they sign. And the contracts you have read… you didn’t really understand or read them. Even people who have been in the game for a while may not understand what they’re signing. After today, that needs to stop. You need to make sure that you understand what you are signing, because terms of a contract are binding. Not understanding what you are signing, and unknowingly breaching the contract, allows the other party to sue you.  If you want some more information on what’s important when it comes to contracts, check out this post where I explain what you need in a contract, and what the clause actually means. If you need an influencer agreement, make sure you visit the WM Law Shop, which has influencer agreements whether you are a small business hiring influencers or are an influencer.

4. TAXES


Honestly, I barely understand taxes. Hence, why I became an attorney and not a CPA :D. But I do know that you need to pay your taxes. Being an independent contractor and getting money here and there doesn’t mean you don’t have to report that income to the IRS. Best advice I can give on taxes, go speak to a CPA, and they will give you information on how to best leverage your extra income.

5. Not leveraging your influencer status to form a business entity


This kind of goes hand in hand with your taxes. If you are making some pretty good moolah as an influencer, think about forming your brand into a business entity. Certain business entities save you money when filing your taxes. In addition, if a company or person sues you and you have a business entity, they may not be able to touch your personal assets. Make sure you are not commingling (mixing) the funds. The funds that a company pays you for endorsing and promoting needs to be in a separate account from your personal account.

If you need help with your legal needs, or understanding how to leverage your influencer status, schedule a Clarity Call or Strategy Session below!

The post 5 Legal Mistakes Influencers are Making (and how to fix them) appeared first on Wilson Murphy Law, P.A..


Roundup of Trademark News in January 2019

I will be doing a monthly round up of legal news that pertains to my practice areas. This month I focused on trademark news, because it’s a […] The post Roundup of Trademark News in January 2019 appeared first on Wilson Murphy Law, P.A..

I will be doing a monthly round up of legal news that pertains to my practice areas. This month I focused on trademark news, because it’s a little bit more entertaining and relateable. These articles are all pretty easy reads and shouldn’t take longer than 5 minutes to digest. Enjoy!

1. Pooey Puitton (MGA Entertainment vs. Louis Vuitton), check out my blog post that discusses how this company may be able to win their lawsuit with LV over their parody toy.

2. McDonald’s loses its Big Mac trademark in EU. See how and why McDonalds lost it’s trademark for the Big Mac in the EU. This is kind of a big deal.

3. Netflix is being sued over the choose your own fate movie, Black Mirror: Bandersnatch. I was an avid reader as a child and I used to love the “choose your own adventure” books. Well, the publishers of those books are suing Netflix for trademark infringement. Read the article here.

4. Rihanna suing father over Fenty trademark. This article discusses why you can’t just go around using someone’s trademark all willy nilly, even if you have the same last name and are related.

If you want to learn some more about trademarks, check out my trademark basics post and a few ways that you can lose your trademark.

The post Roundup of Trademark News in January 2019 appeared first on Wilson Murphy Law, P.A..


Think Your Trademark Is Safe? 3 Ways You Can Lose Your Trademark today.

Registering and maintaining a trademark is expensive, and you don’t want to lose your trademark over something that is preventable. Keeping your brand reputable is time consuming […] The post Think Your Trademark Is Safe? 3 Ways You Can Lose Your Trademark today. appeared first on Wilson Murphy Law,...

Registering and maintaining a trademark is expensive, and you don’t want to lose your trademark over something that is preventable. Keeping your brand reputable is time consuming and, also expensive. You are putting time and money into your brand, and these three mistakes may cause you to lose your trademark.

1. You can lose your trademark if your non registered trademark is similar to a federally registered trademark.

If you have a non registered trademark and you are, say a little cupcake shop in Michigan, and you only plan to sell cupcakes in your city in Michigan, then you probably don’t have to register your trademark. But, if you want to sell your cupcakes nationally, and federally register your trademark, you’ll have to make sure that another company has not already used your trademark or something similar. Otherwise, you may lose your trademark.

If you want to learn the basics of a trademark and the benefits of registering your trademark, check out this post.

2.You can lose your trademark if you think that you have a trademark because you registered a domain name with a hosting service.

Just because you have a domain name does not mean that you have a trademark. Not only that, but if someone who holds the trademark that is similar or the same as your domain name may sue you for trademark infringement. If the trademark owner wins, then you’ll likely have to relinquish that domain name.

3.You can lose your trademark if you abandon the trademark, knowingly or unknowingly.

According to §15 USC 1127, you have “abandoned” your mark if:

(a) You have stopped using the mark and there is no intention to USE the trademark again. “Use” of a mark means you are using the mark to sell goods/services. You are not “using” a mark, if you are merely reserving the mark. If you don’t use the trademark for 3 consecutive years, there is a presumption of abandonment. The USPTO or federal judges will infer the intent not to resume under certain circumstances

OR

(b) When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its significance as a mark. For example, if the inventor of the vacuum trademarked “vacuum”, and the owner of the vacuum trademark did not do anything to keep this trademark from being generally associated with a machine that sucks up dirt. Since the owner did not stop his invention from becoming a generic term, the USPTO will likely no longer protect it under the Federal Lanham Act.

If you need help with registering your federal trademark, you can schedule a Clarity Call today.

The post Think Your Trademark Is Safe? 3 Ways You Can Lose Your Trademark today. appeared first on Wilson Murphy Law, P.A..


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