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  • Michelle Murphy
  • March 19, 2019 05:11:19 PM
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A Little About Us

Wilson Murphy Law discusses the legalities of your small business including trademarks and copyright registration , as well as contracts.

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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.

  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..


How to Prevent Your Online Course From Being Stolen

 Online courses are huge right now, but creators have to deal with their online course being stolen. It is one of the most common questions from my […] The post How to Prevent Your Online Course From Being Stolen appeared first on Wilson Murphy Law,...

 Online courses are huge right now, but creators have to deal with their online course being stolen. It is one of the most common questions from my clients. If you’re putting the course out there, there is no sure-fire way that it won’t get taken. But in this post, I am going to share with you the inside scoop to prevent it from happening and even if it does, there are consequences.

  1. Prevent someone from stealing your online course by adding Terms of Use on your business website

    So you have this website, and whether you know it or not, your website is your property. You can tell people how to behave on your property. By writing terms of use on your website, you are creating a contract between yourself and your site visitors. The site visitors have to abide by your terms if they continue occupying your website.

    To prevent someone from trying to steal your content, which may include your course, make sure you include information on how content on your site should be used. A good example is from Buzzfeed’s Terms of Service:

    “The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Services. The trademarks, logos, trade names and service marks, whether registered or unregistered (collectively the “Trademarks”) displayed on the Site are Trademarks of BuzzFeed and its third-party partners.”

    This is only part of the intellectual property section of Buzzfeed’s term of use, but you get the idea. Buzzfeed’s terms also include a use license, which gives users permission to use their content in a specific manner.

  2. Terms of Use on your course sales page

    Since you have the Terms of Use on your website, go over to your sales page and do the same thing. Ashlyn Carter has an excellent license for her templates.

    “By purchasing your template or any product from The AW Shop™, you are granted one revocable, worldwide, non-exclusive license to the product(s) You have purchased. If you violate this license by giving or selling a copy of Our template(s)/product(s) to anyone other, or if you imply that anyone who gets access to our template/product(s) has the right to use it for his/her/its commercial purposes, We reserve the right to invoice you for the licenses you have gifted to others and revoke your access to our template(s)/product(s) permanently.”

    This addresses how many people can use her product, and what happens to you if you violate her license agreement.

  3.  Watermark your content for videos and/or use the copyright symbol to prevent someone from stealing your online course

    If you are conducting webinars, make sure you pop your head in the videos. This shows that you are the person who is instructing the course. Additionally, by adding a watermark to your webinar videos, your followers can recognize your videos and alert you if someone else is selling them.

    Last but not least, use the copyright symbol on all of your courses, e-books, freebies, and anything you give or sell to your clients/customers. This puts everyone on notice that you are the creator of the material. The copyright notice format is:

    © 2019 John Doe All Rights Reserved

    Will this stop everyone from trying to steal your course? No, because some people just don’t have a moral compass and think they can get away with any and everything. But every Regina George is hit by the bus at some point, and they will eventually see their day in court. After you read this, go to your website and content that you have created, and implement these strategies.

  4. Trademark the name of your course

    Trademarking the name of your course will not protect the online course content from being stolen. BUT when someone comes to you saying that your course name has been stolen, you can send a cease and desist letter. Then, the course creator will have to stop selling that course. Trademarking is insurance for your company name because consumers associate it with your brand.

    Want some examples of business owners who have trademarked their course?

    • Marie Forleo- “Copy Cure”
    • Marie Forleo- “B- School”
    • Amy Porterfield- “List Builder’s Lab”
    • Ashlyn Carter- “Copywriter’s For Creatives”

Want to make sure that you have the legal “stuff” in place for your online course? Fill out the form below and I’ll see how I can help.

The post How to Prevent Your Online Course From Being Stolen appeared first on Wilson Murphy Law, P.A..


3 Contracts Necessary For Creative Businesses

I troll Facebook groups HARD. I usually find that contracts for creative businesses are a huge topic. Usually these creative business owners can’t get their clients to […] The post 3 Contracts Necessary For Creative Businesses appeared first on Wilson Murphy Law,...

I troll Facebook groups HARD. I usually find that contracts for creative businesses are a huge topic. Usually these creative business owners can’t get their clients to pay or they don’t know how to handle a client or independent contractor they no longer want to work with. The first thought that crosses my lawyerly mind is: “Do you have a contract in place?”. The second thought is: “Does your contract address these issues?”. Most creative entrepreneurs only care about the creative part of the business, and throw the legal “junk” on the bottom of the to-do list. All businesses need signed contracts. Although, verbal agreements can be legally binding, they are extremely hard to enforce in court. Today, we’ll be discussing contracts for creative businesses that you need in writing to make sure that your business is protected.

 

1. Client contract

If you are always booked and busy with clients, your client agreement needs to be airtight. Client agreements protect you and your business from clients who don’t want to pay, unruly clients, your intellectual property, and so much more. Although there are many generic contracts out there, everyone’s business isn’t the same so make sure that you are making the appropriate changes to protect yourself. And when you make changes in any client services, make sure that you update your agreement to reflect the changes.

2. Privacy Policy

Ah, the privacy policy. Do you need it? Do you not? First of all, you need it. Don’t know what it is? Well, you’re in luck because I am going to tell you. The privacy policy addresses all of the ways a party gathers, uses, discloses, and manages your site visitors personal information like their emails, addresses, or names. Privacy policies are especially important to creative businesses because they usually include A LOT of emailing. Don’t forget California Business and Professions Code, Internet Privacy Requirements (CalOPPA) requires that websites collecting Personally Identifiable Information (PII) from California residents must conspicuously post their privacy policy. So putting it in the footer is not enough.

3. Terms and conditions

Terms and conditions aren’t required, but if you want people using your digital courses and e-books any old way or want people using your content how they please, then don’t put terms and conditions on your website. But if either of those scenarios starts giving you anxiety, then put one on your site. Terms and conditions let people know how they should behave on your website. It is laying out the policies and rules they need to abide by when cruising through your site. Terms and conditions may not seem like a contract, but it is because if they don’t abide by your rules, you can kick them off or even sue them. How? I’m not sure how you can ban them from your website, but I’m sure there is some software or a WordPress plugin that lets you get the job done. Just like a privacy policy, be sure that you are addressing the issues that relate to your website and your industry. A policy like Google’s won’t help your copywriting or skincare business.

Bonus contract: Independent contractor agreement

Eventually your business is going to grow and you are going to need to outsource tasks. Once your business gets to this level, you’ll need an independent contractor agreement. Some terms that should be in your agreement?

  • Payment terms
  • The parties to the contract
  • A term stating that the worker is an independent contractor
  • An intellectual property ownership/work for hire clause

These are just some of the terms. By the way, each state has different laws about the difference between an employee and an independent contractor. Having someone sign an independent contractor agreement doesn’t necessarily mean they are an independent contractor. But hey, that’s a different post for a different day.

If you need a contract for your creative business, check out WM Law Shop for various types of contracts.

If you want a custom contract for your business, fill out the form below to work with Wilson Murphy Law.

The post 3 Contracts Necessary For Creative Businesses appeared first on Wilson Murphy Law, P.A..


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