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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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What to include in your terms and conditions

Do you ever wonder why the heck you have a terms and conditions page on your website? Do you know what to include in your terms and […] The post What to include in your terms and conditions appeared first on Wilson Murphy Law, P.A..

Do you ever wonder why the heck you have a terms and conditions page on your website? Do you know what to include in your terms and conditions? Well, let’s chat about that today. I think it’s so important when it comes to the legal part of your business to know why you need to do certain things and not just blindly doing it because someone said so. 

Terms and conditions (or Terms of Service) is an agreement that you put on your website that your visitors know how to behave when they are visiting your site. By setting out these expectations, it is easier to defend your right as the owner not allowing them on your website. Expectations are so much easier if you have a list telling someone what to do. If a visitor does violate your terms and service, you can ban them from your website or even sue them if it’s detrimental. Now that you know what terms and conditions are for, let’s get into what to include in your terms and conditions. 

Refund policy

If you sell services or goods, then you need to have a refund policy. Your refund policy needs to be consistent across the board. If your refund policy isn’t consistent, then any chargeback will likely err on the side of the purchaser. Do you want to lose thousand dollar chargebacks? I didn’t think so. By having a refund policy, the purchaser agrees to how you handle refunds, and it’s harder to argue against it. Also, I recommend that you add refund policies to the pages of your products/services. Your refund policy should include the following: 

  • The numbers of days a customer has to return a product
  • What kind of refund you will give to the customer after they return an item
  • Who will pay for the return? If you sell digital products, whether you accept refunds, and if so, in what cases. 

Intellectual property

Not sure what intellectual property is? Intellectual property is a work or invention that is the result of creativity. Intellectual property includes copyrights, trademarks, patents, and trade secrets. The content you produce on your website is copyrighted material. The name of your website and any courses you create are trademarks. The ultimate protection you get is by registering your intellectual property with the right federal agency. By including how people can use your intellectual property, it will keep visitors clear about whether or not they can share your content. Some people don’t want to share any of their blog content, but there are other websites like BuzzFeed who encourage their visitors to share. 

Also, if you register your trademarks, you must defend them, or you’ll dilute your brand and will no longer have the same type of protection. If you aren’t protecting your intellectual property, then it’s hard for people to distinguish you from the millions out there. So if someone violates your terms regarding your intellectual property, you should include the consequences, such as deactivating their account or sue them for damages.

Limitation of liability

A limitation of liability clause limits the amount and types of damages one party can recover from the other party. You can’t put a financial cap on death or personal injury arising out of negligence or fraud or fraudulent misrepresentation. You must follow the state’s laws, and the limitation must be reasonable, clear, and conspicuous. If your limitation is confusing or contradictory, the court will construe it in favor of the client/customer.  

Termination

Because your website is yours, you can stop people from coming to it, if they don’t abide by your terms and conditions. When you have a termination clause, you can tell your visitors the expectations you have from them when they visit your site. If a visitor can’t follow this, then you are allowed to terminate use. Termination is especially useful for those who have memberships and subscriptions. Most termination clauses contain two standard points: 

1. If you violate the terms and conditions, the owner can revoke access;

 And 2. The business is allowed to terminate for any reason at the discretion of the business. 

Some things that businesses include for grounds for termination are stealing your intellectual property, making disparaging comments, and not paying the fee if it’s a membership or subscription service. 

Incorporate your privacy policy

By incorporating your privacy policy by reference, your visitor agrees to follow your terms and conditions AND privacy policy. It’s a 2 for 1, and who doesn’t love that? 

Example: Our Privacy Policy incorporated by reference into these Terms and Conditions.

Bonus: Include a clickwrap so that your visitor has to expressly agree to your terms. I’m still trying to figure out how to add a clickwrap pop up without a ton of pop-ups on my page. But in short, a clickwrap is a pop up that says, “I agree.” It is a legally secure and easy way of creating binding agreements with your visitors online. There are a few legal cases that discuss clickwrap.

Now that you know, are you going to include these sections in your terms and conditions? Do you have terms and conditions on your website at all? If you don’t, you can grab it from my contract template shop. It takes about 15-20 minutes to fill in, and costs 1/2 the price of hiring an attorney.

The post What to include in your terms and conditions appeared first on Wilson Murphy Law, P.A..


When Should Your Small Business Register its Trademark?

This question gets asked to me time and time again. When should my small business register its trademark? And I’ll give you the lawyerly answer, which is, […] The post When Should Your Small Business Register its Trademark? appeared first on Wilson Murphy Law,...

This question gets asked to me time and time again. When should my small business register its trademark? And I’ll give you the lawyerly answer, which is, it depends. I’ve recommended many of my clients to wait, but I’ve also recommended clients to start before their business even opens. If you aren’t sure if it’s time to register your trademark, use the following factors below, and see if any of them applies to you. 

You’ve chosen a name that you don’t want anyone else to have

I have seen it so many times. Someone comes up with a name that they worked really hard to create, and soon enough, someone else starts using it. Now they’re trying to trademark it, and you have to battle over the name. If you had registered the trademark, you would already have the exclusive rights. Thus, the other company would have to choose another name. So if you are totally in love with a name and you CANNOT let it go, then do a search on Google and social media to make sure that name hasn’t already been taken. If it hasn’t been taken or you don’t think it’s been taken, then you can move forward to the next steps to register your trademark.

Your name is in the media

If you or your business has gone viral, then it’s time to move forward with the trademark process. As much as I deplore the family, the Kardashians do this ALL THE TIME. If anything they do goes viral, they try to cash in so that other people can’t use their trademarks for monetary gain. Registering your trademark takes about a year, so it’s definitely not something that happens overnight. But people are waiting on the sidelines to cash in. I covered a story on Instagram about Meg Thee Stallion trademarking “Hot Girl Summer,” but there was already someone who filed first. So now Meg Thee Stallion has to wait in line for her application to hit the trademark examiner’s desk. It sucks, but that’s how it goes in the trademark streets. Going viral happens in a snap second, so you want to be ready to file when it does. 

Your business is sustaining itself

Many people don’t want to invest in their trademarks when they first open their business. The most common factors are not sure about keeping the name or your small business is unable to afford to register your trademark. If you don’t even know if you are going to keep the same name, why invest if you’ll have to pay for the new trademark? But the more common reason is that most small businesses can’t afford to trademark when they first open up shop. However, if you are consistently turning a profit that is actually sustaining your business, then it’s time to start looking into the trademark process. This means that people are actually buying from you. When your business is sustaining itself, more than likely, more companies are going to want to work with you. These companies are using you for your brand reputation. When your small business registers its  trademark, these companies are going to take you more seriously and are more willing to invest in any collaborations that you do. 

I believe that everyone should start looking into trademarking sooner rather than later. Even if you don’t register immediately, you will have some knowledge of how the process works and the costs. At that point, you can build a plan around it.

If you are ready to start the trademark process, use the form below. Wilson Murphy Law will be in touch shortly after.

The post When Should Your Small Business Register its Trademark? appeared first on Wilson Murphy Law, P.A..


5 Reasons You Need to Register Your Trademark

Your business has started growing and you’ve been hearing the buzz about trademarks all over entertainment blogs. You also know people who have had their trademarks stolen […] The post 5 Reasons You Need to Register Your Trademark appeared first on Wilson Murphy Law,...

Your business has started growing and you’ve been hearing the buzz about trademarks all over entertainment blogs. You also know people who have had their trademarks stolen and it’s something that lingers in the back of your mind. Some days you think “That’s never going to happen to me”, and then you go in your Facebook Group and see that it happened to one of your cohorts. In this post, we are discussing why it is so important for your business to register for a trademark for your business name. Then, you don’t have to be one of the business owners that don’t have a clue when it happens to you.

1. Registering a trademark gives you ownership rights

This is THE #1 reason to register your trademark. Having ownership rights means that you actually own the name (in the case of word marks) in association with the product or service that you sell. Being the owner of a trademark allows you to enforce your trademark against any infringers (see more about this below). You also know that your business name is officially yours and that you aren’t infringing on someone else’s trademark. Building a brand on a name that belongs to someone is costly. It can result in shutting down your business, excess attorney fees to defend a lawsuit, and damages because the other party will take action if you get caught.

2. Use of the (R) symbol

The registered symbol informs everyone that your trademark is registered and that you are ready to defend it against infringers. You are only allowed to use the registered symbol after the Trademark Office approves your trademark. If you use the registered symbol before approval then your application is in danger of denial because it is illegal to use that mark if your trademark is not registered.

3. When you register your trademark, you have the ability to sue infringers in Federal Court

Once you have registered your trademark, it is your duty and responsibility to defend it. If you are not defending your trademark, you are risking dilution. If your trademark becomes diluted, it does not have the same type of protection as it does when you first registered your trademark. In a nutshell, dilution occurs when someone uses a famous mark in a manner that blurs or tarnishes the mark. The easiest way to ensure that no is infringing on your mark is to monitor your trademarks (link).

When you decide to sue your infringers, the Federal Court presumes that you own the trademark, if registered. This means that you have less to prove in court. If you win your case, then you can be awarded the following:

  • Court order (injunction) that the defendant stop using the accused mark;
  • An order requiring the destruction or forfeiture of infringing articles;
  • Monetary relief, including defendant’s profits, any damages sustained by the plaintiff, and the costs of the action; and
  • An order that the defendant, in certain cases, pay the plaintiffs’ attorneys’ fees.

4. Valuable asset

Trademarks are one of the most valuable assets of your business. As you continue to grow, your trademark gains value. Once your brand is earning more and more recognition, other companies are going to notice you. You can license your trademark to another company to use for collaborations. Another way that you can use your trademark is to sell it. There are plenty of companies looking to acquire names that they love, but you have it. In the end, either of these strategies means money for your company.

registering a trademark

5. Use it for foreign trademark filing

Remember that filing your trademark in the USA only gives you exclusive rights in the 50 states of the USA. But you can file your trademark in other countries which many companies do for strategic reasons before they even file in the US, but that’s another story.

If you have your US trademark registration, you can use your US trademark registration as a basis for filing in another country. The Madrid Protocol allows you to seek registration in any of the countries that have joined the Madrid Protocol. You can file a single application, called an “international application,” with the International Bureau of the World Property Intellectual Organization (WIPO), through the USPTO.

There you have it, the 5 reasons that you need to register your trademark. If you have a name that you want to trademark, but aren’t sure that it’s up to par, then snag the trademark freebie below. It’s a guide that helps you pick a name that’s not only memorable to your audience, but satisfies the Trademark Office.

The post 5 Reasons You Need to Register Your Trademark appeared first on Wilson Murphy Law, P.A..


Human Resources: Department of One

Today’s post is a guest post from Oginga Carr, an organizational structure expert, and business consultant. I wanted to include a segment on Human Resources because many […] The post Human Resources: Department of One appeared first on Wilson Murphy Law,...

Today’s post is a guest post from Oginga Carr, an organizational structure expert, and business consultant. I wanted to include a segment on Human Resources because many small business have to depend on one person as a Human Resources department. Oginga will explain just how to do that today.

I relate to that feeling because I was in corporate America as a manager, and the organization that I worked with changed to what they called a “small-business concept.” This meant that we had to start taking care of our own Human Resources responsibilities. My position changed from being a manager to the manager/ Human Resources department/payroll/janitor/babysitter/etc. So I understand what it is like to run your own business and be faced by the many compliance issues. If you don’t stay on top of it, legal compliance can be difficult and costly. I want to break down for you the 5 secrets to success as a Human Resources Department, Team of One.

1. Human Resources Department: EMPLOYEES VS. CONTRACTORS

One of the big tripping points for small- to medium-sized businesses is in classifying workers. For a worker to be a contractor, they have to be able to pass a three-prong test called the ‘ABC’ test.

The A portion of the test signifies control or direction of the work. If you tell a worker when to show up, when to take a break, how much you are going to pay them, etc., then they are probably an employee.

The B portion of the test refers to whether or not the service is outside your usual business or usual location of your business. For example, if you contract with a plumber to do some work in a bathroom before you paint, that would be an outside service.

The C portion test declares independent business or trade. Does your worker have their own workers’ compensation insurance or a waiver? Do they have their own business license? You would need to answer yes to those questions to be able to answer yes to portion C safely.

In general, a contractor must pass all three of these tests, and you must be able to prove it. Some states only require the worker to pass two of the three, but every state has requirements. If the worker does not pass the ABC test, then they are an employee, which means they must meet all of the standards and requirements of an employee. The fines for misclassification can be hefty.

2. THE DIFFERENCE BETWEEN EXEMPT VS. NONEXEMPT

Once you classify a worker as an employee, you then must classify what type of employee they are. You have two options: exempt or nonexempt. Nonexempt employees must be paid overtime if they work more than 40 hours in a seven-day workweek. Exempt employees do not have to be paid overtime but have to pass specific tests to be exempt. The two tests are the salary basis test and the duties test. They must both be passed for the employee to be exempt. You should indicate exempt or nonexempt in the job description. It is a great idea to review your employees’ status with an employment attorney or an HR consultant to make sure that your organization is abiding by these regulations.

3.HUMAN RESOURCES DEPARTMENT: RECORD RETENTION

Keeping the records of your employees can be confusing. For most businesses that do not have direct governmental oversight, a simple process will satisfy compliance. Keep personnel files seven years after termination. Examples of personnel information would be handbook acknowledgment pages, employee discipline, employee reviews, and general employee information. You also need to keep medical files six years after termination. Medical records would include doctor’s notes, reasonable accommodations, drug test results, workers’ compensation cases, and anything that speaks to your employees’ medical history.

Keep medical files at the ‘level of negligence.’ For paper files, this means in a locked room and in a locked file cabinet. These files must also be kept separate and distinct from personnel files. This means in a separate file drawer than the personnel file if you are keeping them as paper files. It is vital to remember that sensitive information must be kept in a locked room, in a locked file cabinet, or in a password-protected folder, if it is held electronically. Confidential information would be any information that includes identifying information on your employees, such as social security numbers or driver’s license numbers.

4. KNOW THE POLICIES AND PROCEDURES OF YOUR ORGANIZATION

As someone with HR responsibilities, it is vital to know the handbook for your organization. You have to be able to coach and counsel employees when there is a handbook issue. You have to be able to recognize when a handbook issue is unfair to your employees and take steps to adjust the policy. Remember, you can make any policy you’d like in your organization as long as it is legal and applied evenly. This means that your policies can be as strict or as lenient as you would like; they just have to be consistent. When policies are consistent, the same type of employees have the same rules.

5. UNDERSTAND THE IMPORTANCE OF JOB DESCRIPTIONS

Many times, we can trace productivity issues in organizations to a lack of clarity in job descriptions. If you do not describe the employee’s job adequately, it doesn’t protect you legally or help your productivity. How can you expect your employee to do their job if they don’t fully know what their role is? You must be clear in your explanation of job responsibilities. A clear job description would include every recurring duty that your employee would have. This means your description could be 1, 2, maybe even 5 pages. This allows your employee to understand the expectations from them in the position. By being transparent in the job description, you can hire more employees that are capable of doing the job and know the expectations.

Follow these 5 simple steps, and you will start to really control the human resources department in your organization, and create a company that functions much better and produces more. At my company, we believe in productivity through the structure. The better organized we are, the more productive and profitable we can be!

 

human resources department

Oginga Carr is an author, national seminar leader, organizational structure expert, and Business consultant. He brings 20 years of experience in Sales, Management, and Human Resources. His passion is in the dynamic of change; dealing with it, working through it, and preparing for it. Oginga focuses on productivity through structure and human capital development. He is the author of the book, Your Limitless Life.

The post Human Resources: Department of One appeared first on Wilson Murphy Law, P.A..


5 ways to build your email list legally

I want you to think back to the time that you put up your website to start selling. You thought everything was all good, you were getting […] The post 5 ways to build your email list legally appeared first on Wilson Murphy Law, P.A..

I want you to think back to the time that you put up your website to start selling. You thought everything was all good, you were getting sales and signing up clients. Then, you start reading about how your email list is the key to getting you to the 5-figure months you deeply craved. So you put your banner at the top of your page with a message for people to “Sign up for your newsletter!”, but you only got onesie, twosie sign ups. And you’re wondering WTH, how do I get people to sign up!? So you stroll over to Pinterest, and type in email list and you see a pin that tells you to make an irresistible freebie that people just have to have, and that will get them to sign up to your list, and it works! Your email list grows to 1000 people in one month! It takes one mistake for this list to cost you $42,530 PER EMAIL that you send. Keep on reading to find out how to build your email list legally  and prevent this costly mistake.

What laws govern your email list?

That would be the Can-Spam Act of 2003. The Can-Spam Act is a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and discusses the penalties for violations.

A commercial email is one which advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose. So if you are a business or make money from your blog, then the Can-Spam Act applies to your email list, and you’ll want to read the rest of this blog post on how to build your email list legally.

  1. Use your name or business in the From and Reply

    If you use false information and say that you are another person, then you are breaking the law. This goes for your domain name also. Your emails must be coming from the correct domain aka your website. For example, if your “From” line says that you are Michelle Obama from www.thewhitehouse.gov, then you will be fined if the recipient of the email reports you.

  2. Tell your list where you are located.

    Your emails must include a valid physical address. This can be your current business address, home address, a virtual address, or a PO Box. Check your local USPS for information on how to get a PO Box, if you work at home.  If you don’t have an address in your emails that you send out to your list, then you are making a costly mistake.

  3. Allow someone to opt-out once they don ‘ t want to receive your emails any more, and stop emailing them immediately.

    Make sure your emails have an unsubscribe link. The major companies like Mailchimp, Convertkit, and Mailerlite have them already. So if you use those 3 email marketing systems, you are good to go. If your emails don’t have a link where they can unsubscribe, you should write something on the bottom of your emails like, “If you would no longer like to receive these emails, email ____________ (your email address) and your email will be removed.”

    Once your subscriber makes it known that they no longer want your emails, you have to stop emailing them. I know there have been situations where I continue getting emailed once I’ve opted out. I could report the company in that situation because they are violating the CAN SPAM Act.

  4. Your subject line must relate to your content.

    Who else Googles headlines that will make your open rate sky rocket. *raises hand* It’s ok to have “clickbait” as long as the clickbait headline relates to the content inside of your email. So if you email your list that you are having a giveaway but actually aren’t having a giveaway, then you are breaking the law.

  5. If you ‘ ve hired out your email marketing, monitor the company or person.

    Your email marketing company or VA must follow the CAN SPAM act if they are acting on your behalf. If they don’t follow the rules above, then you could be held liable for their wrong doing. So make sure you add in your contract that they must follow the CAN SPAM act.

Now that you know how to build your email list, you can ride off in the sunset with your awesome, yet legal email list. You can thank me later for saving you $42,530.

Since your email is legally compliant, let’s get your website legal. Make sure you grab your privacy policy, terms and conditions, and disclaimers in this website starter pack.

The post 5 ways to build your email list legally appeared first on Wilson Murphy Law, P.A..


Testimonial Guidelines: How your testimonials are costing you

When you work with a client, the last step in most service-based business is the almighty testimonial. In this blog post, I discuss the testimonial guidelines you […] The post Testimonial Guidelines: How your testimonials are costing you appeared first on Wilson Murphy Law,...

When you work with a client, the last step in most service-based business is the almighty testimonial. In this blog post, I discuss the testimonial guidelines you should follow. Even so, this testimonial could cause a client to sue you. A person usually writes a testimonial as a recommendation, and in turn other people want to hire you. However, there are legal steps you need to take before putting testimonials on your website or on social media.

Most people never think of these steps because no one talks about it, so you have no idea. Luckily, you have me to tell you what you need. These 2 testimonial guidelines cover you if:

1. Someone says they didn’t give you permission to use their testimonial or

2. That they didn’t get the results that were in one of your testimonials.

  1.  Put a release in your client contract and your terms and conditions.

     

    View this post on Instagram

     

    A post shared by Michelle | TM & Biz Attorney (@michellewmurphyesq) on


    Transcription:

    If you are gathering reviews or testimonials from clients, you need one thing in your contract to cover your assets. Stay tuned to find out what it is.

    Hey everyone, my name is Michelle Murphy, the owner of Wilson Murphy Law where I partner with creative entrepreneurs to protect their businesses through trademarks, contracts, copyrights and forming their business entity.

    So as business owners we want social proof on our websites. But in your contract you need to include a release. In my contracts, I name them a “Release to Create Marketing Materials.” If this is not in your contract and you use your clients face, likeness, photo, or name without their permission, Florida can fine you up to $1000. This is due to the fact that we all have the right to privacy. Every states fine is different, but the majority of states have a right to publicity statute so google it to see how much your testimonial can be costing you.

    And since we’re on the subject of contracts, make sure you join the waitlist for the free 7 day contract course where you will learn how to create a legally valid contract and what to put in your contract to protect yourself and find more hints that can change your contract drastically.

    [mailerlite_form form_id=3]

  2. Add a testimonial disclaimer to your terms and conditions.

    A disclaimer is a statement that usually denies responsibility. A testimonial disclaimer tells your visitors that he or she may not get the same results as a testimonial that is on your website. This is a way to cover your assets, so that a visitor can’t say you guaranteed the same results as the testimonial. A testimonial disclaimer that I write in the terms and conditions/disclaimers for my clients looks something like this:

    The testimonials, statements, and opinions presented on ________________________ (website address) are applicable to the individuals who wrote it. Results vary and may not be representative of the experience of others. The testimonials are voluntarily provided and are not paid, nor were they provided with free _____________ (products or services (choose one or both)), or any benefits in exchange for their statements. The testimonials are representative of ____________ (customer or client (choose one)) experiences but the exact results will be unique and individual to each ____________ (customer or client (choose one)).

    By using these testimonial guidelines, you are protecting yourself from others blaming you because they did not get the results as your other client.

    If you are interested in a DIY contract template that is half the cost of hiring an attorney, visit the WM Law Shop.

The post Testimonial Guidelines: How your testimonials are costing you appeared first on Wilson Murphy Law, P.A..


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