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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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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.

     

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    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..


3 Effective Strategies to Protect Your Blog Content

Raise your hand if this has happened to you. You’ve written this fabulous blog post. I mean you’ve done hours of research, took an hour or two […] The post 3 Effective Strategies to Protect Your Blog Content appeared first on Wilson Murphy Law,...

Raise your hand if this has happened to you.

You’ve written this fabulous blog post. I mean you’ve done hours of research, took an hour or two to write it, and took a half hour to create the perfect pin for Pinterest. You hit publish and load it to your blog. Then, a week later, your subscribers and followers start emailing you that the exact same blog post you wrote is on someone else’s website. Wait, what!? You never thought this would happen to you. You know your blog is terrific, but you didn’t realize it was THAT GREAT. Well, you’re in luck because today I’m going to tell you how to prevent this from happening and you can continue blogging with a peace of mind.

  1. Registering your copyright will protect your blog content from copycats.

Firstly, a copyright is a form of intellectual property law, that protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.

As soon as you write and publish your blog post, you have created copyright content. Next step is to register your blog post with the Copyright Office. By registering your blog post for a copyright, you are setting yourself for the ultimate content protection.

Advantages of copyrighting your blog post?

  • Licensing out your blog post (and GET PAID)
  • Derivative works (include the posts in newsletters, e-courses, and on social media)
  • File suit if someone uses your blog content without your permission

This last one is important because if you don’t register a copyright for your blog and someone steals it, you can’t even file suit until your mark is registered. Furthermore, registration can take 6 months or longer.

Even if you decide not to register for copyright protection, at least put a copyright notice on your page.

Example: © 2019 Wilson Murphy Law, P.A. All rights reserved.

  1. Disable text selection on your blog

By disabling the ability to copy and paste, you are making it 100x harder for someone to copy your post. If someone is willing to rewrite your whole post..well that’s a weird and miserable existence for that thief. You can disable the copy and paste by inserting CSS code, which is hard and annoying. Or you can use a plug-in on WordPress. The WordPress plug-in I found is called “WP Content Copy Protection & No Right Click.” Best of all, it’s free! I’m all about free.99.

  1. Use a work for hire agreement or put a work made for hire clause in your contract to protect your blog content.

Not all of us love writing our own blog posts. *Spoiler Alert* It pains me to write my posts, and takes all of my energy to sit down and put my thoughts on paper. If you are like me, you have likely hired an independent contractor, copywriter, or virtual assistant to take over that task. When you outsource your blog posts, the person writing it for you is the author of the blog post, unless it is an employee. However, you can protect yourself and content by having a work-for-hire agreement or clause in the service agreement. The work-for-hire agreement or term ensures that the contractor does not keep rights over the work created. Below is an example of a work-for-hire clause you can include in your agreement:

“ Any work performed by [Independent Contractor] while working with [Company Name] shall be considered a “Work Made for Hire” as defined in the U.S. Copyright laws, and shall be owned by and for the express benefit of [Company Name]. In the event it should be established that such work does not qualify as a Work Made for Hire, [Independent Contractor] agrees to and assigns to [Company Name] all of [Independent Contractor]’s  right, title, and interest in such work product including, but not limited to, all copyrights and other proprietary rights.”

Now that you know how to protect your blog posts, find out how you can protect your Instagram posts.

Need to talk? Fill out this form and see if Wilson Murphy Law can help you out.

The post 3 Effective Strategies to Protect Your Blog Content appeared first on Wilson Murphy Law, P.A..


Cardi B Filed a Trademark: Why 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: Why 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

Want to talk about your trademark? Fill out the information below and see if Wilson Murphy Law can help.

The post Cardi B Filed a Trademark: Why you should be doing the same appeared first on Wilson Murphy Law, P.A..


“What Can I Trademark?” -The Ultimate Guide (the last one is surprising!)

Do you have some cool branded components to your business and wonder “Can I trademark that?”. Most people are under the impression that everything can be trademarked. […] The post “What Can I Trademark?” -The Ultimate Guide (the last one is surprising!) appeared first on Wilson Murphy Law,...

Do you have some cool branded components to your business and wonder “Can I trademark that?”. 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 started 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.
A popular influencer whose name is trademarked? Carli Bybel- beauty influencer
 
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. You can trademark slogans.

 

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 drawing that you’ve spent $2,000+ 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. Did you know you can trademark 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. What about #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.

what-can-i-trademark

 
I hope this has helped you out while you are on your trademarking journey. Trademarking is never-ending because as time changes, so does the law. If you need help getting started on this journey, fill out the form below. 

The post “What Can I Trademark?” -The Ultimate Guide (the last one is surprising!) appeared first on Wilson Murphy Law, P.A..


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