Photography is a huge part of a creatives business whether you sell products or services, or maintain a blog.  We all know a picture is worth a thousand words…and maybe even a thousand dollars.  This recent case is fascinating in that there are several point to take away from this situation. Think about how this might affect your blog, your brand, or your ability to serve your customers.  Here are some of the critical facts of the case.

A photographer started donating her photos to the Library of Congress in 1988.  This means that anyone that wanted to use her photos were welcome to use them.  She requested that the users of her photos credited the Library of Congress photographer’s collection.  Imagine this photographer’s shock and surprise when she received a demand letter from Getty Images stating she owed $120 for using her own photos.  She knew something was definitely wrong!  After she explained that she indeed was the copyright owner, and that she had granted the photos to the Library of Congress to put into the public domain, she was no longer required to pay the $120.  However, the photos still remained on Getty’s website for them to license to others.

The photographer filed a lawsuit in federal court for misappropriation of the gift to the Library of Congress for charging fees to those who were free to use the photos without paying anything. According to the photographer’s lawsuit, it is alleged that Getty violated federal law 18,755 times based on the number of photos it licensing on its website. There are no separate agreements between the photographer and Getty that would grant licenses to sell the photographer’s photos, so Getty essentially has the same rights and responsibilities that all citizens have to use the photographer’s photos.  Because of the outcomes of some other related litigation, the photographer was able to ask for treble statutory damages—translation—the defendant’s potential liability could total well over $1billion.  Interestingly, the photographer is one whose works have been featured in over 50 books and on two US postal stamps.

This is case is both interesting and extreme, but I think in its extreme nature I think it works well to make a few important points for creatives.

1. Register your work.  In this situation the photographer was suing for misappropriation.  If the facts had been a little different and she had been suing for infringement yet had not registered her works with the Copyright office, she would have been out of luck. If your works are not registered with the Copyright Office, you cannot get into federal court until or unless they are.
2. Public domain does not give a user more rights.  In this situation Getty had the same access and rights as all other Americans had to the photographer’s photos.  Not more, not less.  When something is in the public domain, the burden is on the creative to determine how that work may be used.
3. Police your work. No one is going to police your work for you.  If you create something, the burden is yours to make sure that someone is not stealing or misappropriating your creative property.
4. If you are not donating your works to public domain, be aware of licensing agreements. Assuming that you are not donating your works, your intellectual property, then either you will monetize your creative works by selling them or licensing them.  Be aware of how licenses work.  A license is an agreement that outlines how someone can use your creative works and not be liable for infringement.  However, there are lots of little details and moving parts in those agreements, so make sure you understand fully on what you are agreeing to license.
5. If you aren’t sure, seek the advice of an intellectual property attorney. Better to be safe than sorry.  If you aren’t sure about a situation, seek an expert’s advice.  Being proactive may cost some money up front, however it will be less than what it will cost you to be on the defensive.
6. Do not be intimidated by a larger company. In this case a larger company was taking advantage of a single photographer.  That photographer could have been intimidated and decided not to protect her creative works, however she decided to stand up to the larger company, and there are serious potential consequences.

DISCLAIMER:::: The materials available in this article are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Angie Avard Turner Law and the user or browser.

The post Photography and Copyright Issues appeared first on The Southern C.

With the start of a new year, it’s time to make sure, as I like to call it, your “back end ducks are in a row.”  I’m referring to the foundational part of your business–not the pretty shiny part that your customers or clients see – but the behind-the-scenes that protects and bolsters that pretty shiny part. It is important that you regularly assess this foundational part to make sure it is solidly built. I’ve come up with several questions to help you assess your foundation, which I’ve broken down into what I see are the main categories for creatives – the areas that I receive the most questions and requests for advice and recommendations.

Business Formation–Have you decided what legal business entity you would like your business to operate under? Sole Proprietorship? LLC? S-Corporation?

Record Keeping–Are you keeping your business records up-to-date? Are you keeping them separate from your personal records? Do you have an accounting system or an accountant to help advise you?

Contracts & Agreements–Have you thought through the types of contracts you will need on a regular basis to operate your business? Client Services Contract? Non-Disclosure Agreement? Licensing Agreement? Independent Contractor Agreement?

Copyright Issues–Have you thought through what creative or intellectual works you will have copyrighted? How often will you submit your designs to be copyrighted? Are you using the proper marks to put others on notice that you own the works that you are selling? Have others infringed on your copyrighed works? Do you know how you will respond legally if someone does infringe on your copyrighted works?

Trademark Issues–Have you thought through what you will have trademarked? Will you trademark your name? Logo? Do you have a tag line that should be trademarked? Are you using the proper marks to put others on notice that you own the brand you are selling? Have others infringed on your trademark? Do you know how you will respond legally if someone does infringe on your trademark?

Website Issues–Do you have a Privacy Policy? Do you have a Terms & Conditions page? Do you have Disclaimers? Is what you are selling accurately portrayed on your website?

Social Media Issues–Do you have a social media policy for your employees that handle your social media? Do you utilize disclaimers regarding endorsements? Set rules when running contests on social media?

Hope this helps many get organized and motivated to protect what they are working so hard to create!

DISCLAIMER:::: The materials available in this article are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Angie Avard Turner Law and the user or browser.

The post Assessing Your Business’ Foundation: 7 Areas of Consideration appeared first on The Southern C.

After attending my 3^rd Summit, I’ve been reflecting on the presentations, conversations, and topics of interest.  One that continued to pop up in each of those was hashtags.  We use them for search optimization; we use them to get the attention of companies we admire; and we use them to signal to our audience that, yes, #wehaveasenseofhumor.  See what I did there? However, what may not be a laughing matter is when you use someone else’s hashtag and they ask you to stop. Then there is the other side of the coin, when someone uses your hashtag, and you’d really rather them not.  Are those instances considered infringement?  Well, I wish I could just say, “Yes” or “No,” and we could all retire to the porch for a nice cold beverage.  But alas, it is not the case.  This is an emerging area- a gray area, so to speak.  You know what that means. There will be litigation that follows.

According to some research nearly 1400 hashtag trademarks were filed in 2015. Okay, so that doesn’t seem like a lot.  In 2010, only 7 were filed.  That’s a 20,000% increase over 5 years—a fairly significant percentage, I would say.  Now, hypothetically speaking, what if 1400 increases again over the next 5 years by, say 2000%?  Now we are looking at 28,000 registrations. That is quite possible given that between 400,000 and 500,000 trademark applications are filed each year in the United States. If companies think that filing to protect a hashtag will protect their brand, especially where the law is unclear, many will do it in a split second.

According to federal trademark law, a mark is defined as a source-identifier which is a “word, name, symbol, or device, or any combination thereof” used “to identify and distinguish…goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods.”

A hashtag has been defined as a word or phrase preceded by a hash or pound sign (#) and used to identify messages on a specific topic.  Hashtags are a form of metadata which is a fancy way of saying that it helps internet users organize and move through material on a specific subject on the internet and/or social media.

With social media becoming the fastest growing way to drive business to a website, it is no wonder that businesses were quick to catch on that, “hey, if we hashtag our brand or our tagline, that could bring more money to our bottom lines.”  This has led to companies filing applications with the United States Patent and Trademark Office (USPTO) to protect their specific hashtags as a source identifier.

So it seems the real issue is that the definition of a trademark is a source identifier and what was the definition of a hashtag as a way to organize and sort material on the internet has found another purpose as source identifier.  By its very nature identifying a source allows one to put it in a certain category or even organize it. So you can see why the legal lines get a little blurry because identifying a source (the purpose of trademarks) allows you to organized that source (the purpose of hashtags) more efficiently.  So the courts and the law are now playing catch up to technology.

So what can you do as a creative business to make sure that you are protecting your brand and not infringing on another’s brand? These tips apply to all social media platforms, but for the sake of discussion, I’ve used Instagram as an example.

1. Don’t use generic words to identify your brand.

Using generic words like #retail or #interiordesign or #wedding2017 will definitely get you some likes on your IG post, however it will NEVER qualify as a brand that could be protected or a source identifier. So it is fine to use; just understand that there will be 523,481 other IG accounts using the same hashtags. So none of you roughly 525,000 IG’ers can lay claim to the exclusive use of that hashtag.  Another reason to be choosy with generic hashtags is who knows what your carefully crafted, beautifully lit, photographic masterpiece will land next to in the virtual optic quilt of the Instagram search.  Y’all know what I’m talking about.

2. Use the same hashtags consistently.

If you are going to use hashtags as a source identifier, use them consistently.  What does that mean?  It means use the same lettering—don’t make it plural if you haven’t before.  If you use a year or number, use the same one every time. If you are using a group of words to identify your brand, I’m gonna use The Southern C as an example here, use them in the same order.  So The Southern C has strategically used “Connect” “Collaborate” “Create” almost as a tagline on their website on their collateral material, and during the Summit.  As attendees and alums, we are encouraged to use #connectcollaboratecreate in our posts.  At first the goal may have been to index the material, but the longer it is used it is beginning to identify the source. Again, however, one tricky little fact that you may have stumbled upon, if you don’t use the words in the same order as the originator of the hashtag, your post will end up in some strange vortex.  That goes for both those who come up with the hashtag and those who are permitted to use it.

3. Research the hashtags you would like to use before you plow ahead full force.

Okay, so you need to be a little strategic.  Using a brand’s name without their approval happens every second of everyday.  Please understand; I am not saying you should or shouldn’t do that.  Just stating fact.  However, this is the area where I see it getting a little grey.  This is the area where brands are beginning to realize, although they may want some using their hashtags, they may not want ALL using their hashtags.  If you have an established relationship with a brand then you are probably in the clear to use their hashtag. If you have no prior contact with a brand, then you are moving toward the grey area.  It is really difficult to know what to do, since this area of the law is so unsettled.  Some jurisdictions are upholding using the hashtag as infringement; others are not.  So tread carefully and lightly.

4. Use hashtags on your branding.

If you are trying to gain protection for a specific hashtag, you should use it on all branding.  It goes back to the purpose of trademarks which is being source identifiers.  If you begin using the hashtag in branding and not just on social media, then the argument that you have moved out of the realm of organizing and indexing media on the internet is much easier to make and the potential for gaining trademark protection may be less difficult.

5. If you aren’t sure, seek the advice of an expert.

Many people live by the rule better to seek forgiveness than to ask for permission.  Maybe so.  However, it has been my experience that saying “I’m sorry,” after infringing on someone’s intellectual property is a fairly expensive apology to make.  So again, if you feel that “I’m not sure what to do, but I want an answer” feeling.  Contact an experienced intellectual property attorney.

So okay, everyone, take a deep breath.  I can see that you have that deer-in-the-headlights look!  Please don’t read this article and swear off hashtags.  That is not the goal. The bottom line is to be aware—aware of how you are using hashtags and how your hashtags are being used. All of this discourse is not to rain on anyone’s hashtag parade or be Negative Nelly; it is simply to make my fellow creatives aware of an area that is beginning to gain legal traction. #knowledgeispower. #creativesprotectyourbrand.

The post #MYHASHTAG: 5 Tips on Using Hashtags Legally as it Relates to Your Brand appeared first on The Southern C.

Names… We have them. We give them.  We hate them. We love them.  We, sometimes, even have derivatives; think nicknames. As you have heard on this blog, at the Summit, and no doubt, various other information outlets, the name you use is extremely important in your business.  It signals your brand. We spend hours, days, weeks, months, dare I say, years, experimenting with just the right name for our business. And then there are those who decide, quite simply, I am my brand, and my brand is me.  They name their company after themselves (sans Jr. or III, of course). We are taught from an early age that there is only one of us.  We are unique.  No one else is like us.  So as we grow, we extend that thought to our business and our brand.  Now, I don’t want to burst anyone’s individuality bubble, but when it comes to names and using our own name for our brand, the likelihood of your name being the only one out there in the entire world is almost zero.  What is that children’s song?  “John Jacob Jingleheimer Schmidt, his name is my name too…”  Right, so let’s take a look inside a battle that is being played out in the court system right now.  It is a tale of two Kylies.

On the one hand we have Kylie Minogue; on the other, we have Kylie Jenner.  Please for the sake of this article, put aside whatever you think about their character, style, or personal lives.  Just focus on their names, or should I say name.  See they have the same one.  So what are they fighting over?  Here is the background.

Australian singer, songwriter, and actress Kylie Minogue has been around since the 1980s.  On the other hand, Kylie Jenner’s first claim to fame was when her family’s TV show gained notoriety which was around 2007.  So Kylie Jenner, in 2015, decides to file a trademark application to protect her first name in “relation to advertising, entertainment and personal appearances by a celebrity, actress, and model.” Kylie Minogue filed a notice of opposition to Jenner’s application in early 2016.  Her argument was that she (Minogue) had already successfully registered “Kylie Minogue Darling,” Lucky-the Kylie Minogue musical,” and “Kylie Minogue.”  She also has owned the domain name kylie.com since 1996 (before Kylie Jenner was even born).  Minogue had the facts and the law on her side- a good place to be in any legal dispute.  Of course Jenner is appealing, however her appeal is likely to fail since trademark protection hinges on one’s use of the mark.  Minogue has a 3-decade head start on Jenner.

So why does Kylie M win over Kylie J?  Here is why in plain terms.

1. Trademark law hinges on use. This means who ever uses a name first in commerce has the advantage.  Furthermore, if a business owner uses the mark and registers it, this gives them an even greater advantage.  The registration of the mark serves as notice to the world that this particular business is using this mark to identify their brand.
2. The names are so similar that there is a high likelihood of consumer confusion. An examining attorney with the USPTO (US Patent and Trademark Office) will look at 8 specific factors to determine if there is a likelihood of confusion of the marks.  If there is, he or she will not allow the mark in question to be registered.

Registering a name is difficult. I have seen firsthand two companies in my little region of the world go to legal blows over their last name in business. In that situation, the one who had continuously used the name the longest prevailed even though both parties shared the same name.  The losing party had to stop using their name and rename their brand.  Most of the time regular folks like you and me cannot register their personal name for trademark protection.  However, if the use of your name has been long enough that it has acquired “secondary meaning,” which means a close association with the product or services that you offer then it is possible.  There are strong reasons creatives want to use their name to build their brand, however there are strong arguments against doing so as well. Because there are compelling reasons on both sides of the issue, I like to say this is where a business decision and a legal decision intersect, and you, as the business owner, knowing both the business and legal ramifications, must be the boss and decide.  Whatever you do, make sure that you understand both.  If you do not, seek the advice of an expert that can walk you through the possible scenarios that are specific to your situation.

DISCLAIMER:::: The materials available in this article are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Angie Avard Turner Law LLC, and the user or browser.

The post The Name Game: Should You Name Your Business After Yourself? appeared first on The Southern C.

You have probably heard it a million times…”Someone stole my idea!!” Or maybe you were the one saying it!  “I worked really hard on this, and they took it and ran with it!”  I certainly don’t want to even think that anyone reading this would every consider doing such a thing, I declare!  But, I know better.  The thought of moving forward in business or making a little extra money or getting that extra moment in the spotlight is all the temptation some folks need.  It’s true; it’s the world we live in.  So, we have to woman up and get over it!  People, business people, even business people who are our friends, do things they should not. So if ideas cannot be protected then what is a creative entrepreneur to do??  How do you discuss collaborations without speaking in riddles or feeling as though you need to leave key details out for fear of the other side “running with your idea?”  Well there is this little agreement that is the closest thing to protection that you can get for ideas.  It is called a Non-Disclosure Agreement or NDA.

What exactly is a non-disclosure agreement?  It is an agreement that is entered into by two parties at the front end of a collaboration.  Specifically, it details confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to or by third parties. It is a contract through which the parties agree not to disclose information covered by the agreement.

So, for example, if two brands are working on a collaboration and each party needs to disclose their processes to each other to move the collaboration forward, that is something you want detailed in the non-disclosure agreement.  It creates a confidential relationship between the parties to protect any type of confidential and proprietary information or trade secrets. Simply put, these types of contracts protect creatives’ non-public business information.

There are 3 types of non-disclosure agreements – unilateral, bilateral, and multilateral.  Each protects confidential business info, however, each have very different implications for the disclosing party.

• A unilateral non-disclosure agreement covers those who may be disclosing information to a receiving party. However, the receiving party does not anticipate disclosing information.
• A bilateral or mutual non-disclosure agreement is one where both parties anticipate disclosing information to the other. So, in the interest of being fair they both agree to the same terms.
• A multilateral non-disclosure agreement is one where you have more than two parties involved and each are disclosing information.

Now that you know what a non-disclosure agreement is, why are they important? There are a couple of reasons why you would want to use them.

Protection

The main purpose of non-disclosure agreements is to protect your work while moving a potentially advantageous collaboration forward.  You want to take care of your creative works and ensure you are respecting another party’s creative works as well.

Credibility

Having a non-disclosure agreement in place conveys a credibility to those you are working with that you take your work seriously and that you intend to protect it.  You also expect the same from anyone you collaborate with.

Now that you know what non-disclosure agreements are, you can use them with ease and confidence. The Southern C Summits and Retreats are great places to collaborate and expand your reach, but you want to make sure you’re doing it in a way that protects your business and respects other business. As with anything, if you not sure you should contact your attorney and seek his or her legal advice.

DISCLAIMER:::: The materials available in this article are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Angie Avard Turner Law LLC, and the user or browser

The post Collaborate With Care: Why Every Creative Entrepreneur Should Use a Non-Disclosure Agreement appeared first on The Southern C.

Any time you enter into a discussion with another party or business, it is always wise to have a Non-Disclosure Agreement (NDA) in place and executed. Last month I discussed NDAs—what they are and why they are important. I received quite a bit of feedback from that article, so I thought we would dig a little deeper.  This month I would like to delve into the actual DNA of the NDA. There are several essential parts of an NDA. The components listed below are not the only parts, however, these are the most important parts. These are the items on an NDA you will want to review and make sure you are crystal clear on their meaning and affect before signing on the dotted line.

The Parties

The parties of the NDA are the people or business entering into discussions. This seems ridiculously obvious. However, there have been times when one thought they were discussing a project with one person only to find out that the person they were negotiating with represents a much larger entity. Maybe what is discussed or negotiated wouldn’t change, however, knowing the parties involved helps you know how much business experience the other party has and potentially their ability to abide by the terms and enforce the NDA.

The Term

The term of an NDA specifies when the protected period begins and when it ends, if it ends at all. It is important to take note of both the beginning and ending dates. I’ve seen situations where it was imminent that the NDA was going to be signed, and the two parties started talking. Those talks were not protected. I found out down the road about it because someone came to me saying that one side had breached the terms of the NDA. Not a whole lot I could do at that point, unfortunately.

The Confidential Information

You will want to have a clear grasp on what information you are seeking to protect and, if the NDA is mutual, what information the other side expects you to keep confidential. Sometimes these sections can be very simple, but often this section is a catch-all. That being the case, it is important for you to err on the side of caution. If you aren’t sure if something is considered confidential information, don’t discuss it with a third party.  Better to be safe than sorry and sued!

The Protection

To protect confidential information, there may be extra steps that parties need to take to protect that information. For example, files may be password-protected where only the parties are able to see them. Or the files are only available to certain members of a company. If the information you seek to protect is confidential, then you will not want every single person from the other company being privy to that information, at least until the collaboration has been cemented.

The Remedies

Remedies is the legal term for what makes the wronged party whole. It can be monetary or it can be equitable . Think allowing something to be done or stopping something from being done to make things fair—an injunction is a good example. It’s important to know what your remedies are against someone who compromises your confidential information, but it’s important to know what the remedies are against you if you compromise information. It is possible that the remedies are so stiff that it could bankrupt your company. Sorry to be so blunt, but I have seen it happen; so pay attention to that section.

The Indemnification

Indemnification is where one side agrees to assume liability for certain actions they have taken or failure to act. Again, you’ll want this section narrowly drafted, so you are indemnifying a certain person or a specific set of folks in the company, not all business affiliates. That’s too broad, but I have seen it happen!

The Governing Law

This is the law that governs the NDA. If you both are located in the same state, then this is a non-issue.  However, if you are in Georgia and the company you are collaborating with is in North Carolina, you will want to know whether Georgia law or North Carolina law governs. The law that governs also dictates where suits can be filed.

Closing Thoughts

All of the provisions can be overwhelming and intimidating. Don’t allow that to happen. Educate yourself, and if you are unsure, seek the counsel of an attorney that knows how to advise on NDAs. It’s better to walk into an agreement with your eyes wide open than to be blindsided halfway through the negotiations.

DISCLAIMER:::: The materials available in this article are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Angie Avard Turner Law and the user or browser.

The post Understanding the Parts of a Non-Disclosure Agreement (the DNA of the NDA) appeared first on The Southern C.

If you have employees, or plan to hire them in the near future, this post is for you.  As a business owner, rules can be such a difficult thing to implement.  At the beginning, it may just be you running your store or website, however as you grow—and that is the goal—rules need to be put in place.

There are a few reasons to consider having a handbook in place, but the most important one is a clarity of communication with your employees. They need to understand what the business goals are and how you expect them to be achieved or maintained. Additionally, employees need to understand what the boundaries are and what the consequences are for stepping outside of those boundaries. Following are some of the main components a handbook should include. This list is not exhaustive, however, it does include many of the key component.  It is certainly a good starting point.

Company Mission

The employee handbook should define the company’s goals and mission at the outset. By doing this, you create a sense of common purpose. This component sets the tone for employees coming into your establishment and gives them a clear, concise glimpse of your overall vision for your store.

Handbook Purpose

The handbook should clearly state its purpose. This seems fairly simple and straightforward. True! You will want to communicate that the purpose of the handbook is to concisely state the policies and procedures of the store.  Furthermore, you will want to put each employee on notice that the handbook is a living document.  That means you reserve the right to update, revise or do away with the handbook; this right is at your sole discretion.

Disclaimer

Disclaimers, legally speaking, are a refusal to take responsibility.

Every handbook should make a statement that preserves and maintains the at-will employment status. At-will employees are those who can be dismissed by an employer for any reason (that is, without having to establish “just cause” for termination), and without warning.  A contractual employee, as you may suspect, is one who agrees to specific terms and cannot be fired without cause.

Employment Policies

Employee policies should be stated clearly and in compliance with federal, state and local laws and regulations that govern the business. Make sure, where appropriate, include policies on Equal Opportunity Employment, Non-Harassment, Non-Discrimination, and Employee Eligibility.These items are areas where business owners are challenged and have suits filed against them.

General Policies and Information

This is the backbone of your handbook.  The information specified in this section is what creates the company culture, so to speak.  Some of the items included in this section are standards of conduct, work schedule, payment schedule, overtime, promotions, bonuses, dress code, social media policies, conduct while on the sales floor, and a myriad of other items that you many want to communicate to anyone you employee.

Leave Policies

Employees will always want or need to take time off.  So, it is imperative to clearly communicate what your leave policy is. Make sure that your leave policies are in compliance with federal and state laws.  Leave policies include the various types and situations such as being sick, vacation, maternity/paternity, military, grief, caregiving, and jury duty.  This policy also spells out who is eligible, what duration is acceptable, whether it is paid or unpaid, and whether leave approval is required and if so the procedure to get approval.  While spelling out the leave policy, it crucial to put employees on notice that abuse of the leave policy will not be tolerated and that you reserve the right to terminate to the employee for excessive leave.

Health and Safety

It doesn’t seem likely that safety would seem like a huge issue, however it is important to include tenets regarding safety and security. Be aware of whether OSHA regulations apply in your business.  Additionally, you should have in place how employees should handle accidents, injuries and any other safety issue.  Another consideration is how your business will handle weather safety issues.

Employee Benefits

You should detail all benefits available to your employees and when they will become eligible for those benefits.  One area that being clear is necessary is healthcare. Make sure that you explain how you provide healthcare coverage if you are required to do so.

Discipline and Termination Policies

This is an area you must address. It is not popular to be the disciplinarian, but you are the boss, so you must lead!  Be sure to explain what the procedure for discipline is, the procedure for an employee to leave, and procedure for an employee to be terminated. Make sure that when you determine this section of your handbook that the policies are something you can abide by, because you will be expected to do so.

Acknowledgement

You must require an acknowledgement.  What does the acknowledgement accomplish?  It ensures that your employee has received, understands, and agrees to abide by what is set forth in the handbook.  Moreover, you should keep a signed acknowledgement from each employee in their employee file. Even if the employee leaves or is terminated, the acknowledgement should be kept on file for at least five years.

Again, this list of areas to be covered may not include everything, but it is a good start for your business. If there are areas you are unsure of, seek the advice of an experienced attorney.  They will be able to guide you through working out your handbook.  It may be money spent on legal fees, but better to invest in protecting your business that having to spend double that to defend what is left vulnerable.

The post The Importance of an Employee Handbook appeared first on The Southern C.

It’s now been about four months since the 2018 Southern C Summit. #timeflies And as I review my notes from the Summit (something you should do throughout the year!) and compare them to the real-life experiences I see my clients and myself facing, I wanted to expand on some legal topics that came up at the Summit, as well as share some of the business motivations that have stuck with me the last four months.

Legal

Hashtags

There was a lot of discussion about using hashtags.  I wrote an article about hashtags several months ago.  You should check it out.  It explains the growing number of hashtags being used and how there is a growing movement of brands that are using them as source identifiers (i.e. trademark material) in addition to search tools. It is becoming more and more important to be aware of how you use hashtags because brands are beginning to use them to distinguish themselves.

Collaborations—NDA

There is a lot of discussion of collaborations within TSC.  Non-disclosure agreements are really the only document that can protect your ideas and the conversations revolving around these ideas that you may enter into with others. Again, I refer you back to a two part series of articles that I penned for TSC: why every creative should be using an NDA and understanding the parts of an NDA.

Affiliate Links

There was a discussion about affiliate links and FTC regulations as it relates to brands and bloggers.  I will be addressing this in a later article, however, in short you should disclose and make it “clear and conspicuous (that is the legal standard).”  To explain it in a nutshell, lack of disclosure or improper disclosure is a violation of consumer protection laws.  These laws are federal in nature, so they trump any state laws that may exist.

Intellectual Property within Interior Design

Can interior designers protect their work from copycats?  Great questions.  This is an emerging area. There are very few cases that cover this area, so that means that the law has not really been decided.  This is another area I will be covering this year.  I will discuss best practices on how to protect your work and aesthetic, what do when someone copies, and how to avoid copying someone else.

Net Neutrality

This was brought up a few times in passing discussions.  The short answer is that is remains to be seen what the affects of this policy will be.  There are arguments on both sided of why or why not the policy should exist or have been repealed.  In the short term, all I can say is, “Stay tuned.”

Business/Entrepreneurship

Elizabeth Mayhew

1. “Yes and…” I love this sentiment. I know this resonated with a bunch of you, as I, too, saw the hashtags and posts.  It’s not just saying yes arbitrarily, but the “and” is giving yourself permission to frame the yes in away that showcases your strength and abilities.
2. “Write it first, then photograph it.” This is another great quote from Elizabeth’s discussion. The reference she was making was literal, however this is a great metaphor for how to live your business life. Write it, then visualize it.  When you write your story, your goals, there is something that happens that makes it more concrete.  Then taking those words, in black and white, and transforming them in full, living color gives us hope, encouragement and the empowerment to move forward, full steam ahead with our goals.
3. “Instagram is the mini-magazine of yourself.” When Elizabeth said this I almost laughed out loud. Not at her, but at myself.  If anyone looked at my IG, it would look like, maybe, the front and back cover and that’s about it.  I am terrible at posting.  It is really tricky to post photos that are beautiful yet connect to what I want to say as a creative lawyer, but I’m working on it…slowly.
4. “When showing something inexpensive, elevate it with whatever it is surrounded by.” When Elizabeth was making this branding point she flashed a cute, snappy little scarlet scalloped skirt from Draper James up on the screen. However, when I heard this I immediately thought of all the women in the room.  Many times we feel like we are the “Plain Jane,” the vanilla flavor, the inexpensive option. The main thing to remember is that is just a feeling.  We are elevated when we surround ourselves with valuable people (those who have skill sets different than ours).  We are given permission to be a better version of ourselves.

Holly Phillips

“Blogging became a habit.” When Holly said this I immediately thought of all of the little habits I have, both at work and personally. How long did those take for those habits to set in?  A day? A week? A month? Years?  I don’t know, but the point is she began and never stopped.  So should we all!  Begin somewhere, then reflect on what you just did, adjust, and then do again.  You will be amazed where you end up in a month, a year, or five years when you repeat this pattern over and over! Nothing happens overnight, which brings me to my next reflection.

Alexa Hampton

“Creative business is a marathon of sprints.” Seriously, I don’t know if Alexa realized the profundity (how profound) this is!  So true.  There are some many times in business where you are in a mad dash to get something done, or turned in, then it eases up and you can breathe, and then the craziness begins again.  Those creatives who can step back and see that the break neck pace is just a sprint and not meant to be a sustained pace are those who can keep going.  They understand that ultimately being in business is a marathon.  So slow and steady wins the race.

Overall, this was my favorite Summit.  Not just for the presentations, but for the people.  I have loved having the opportunity to cultivate relationships, learn about others’ businesses, while thinking about what I do in fresh and new ways.  This time in particular  though, I came back with a renewed sense of energy and vision for where I want to land, and I am looking forward to get a step closer each day!

DISCLAIMER:::: The materials available in this article are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the links contained within the site do not create an attorney-client relationship between Angie Avard Turner Law and the user or browser.

The post Four Months Post-Summit: Reflections and Motivations appeared first on The Southern C.

Before her unexpected death earlier this year, designer Kate Spade (or should I say formerly known as Kate Spade) presented a very interesting case study for naming a business after yourself.

Did you noticed I said “formerly”? Yes, at the time of her death, her professional name was actually Kate Valentine. You might ask…after all that fame, why was she going by Kate Valentine?

As many of you know, Kate Spade and her husband built a fashion accessory empire beginning in the early 1990s.  I mean who didn’t want one of those snappy little bags? Then, Kate Spade (the person) sold her shares in Kate Spade (the company) in 2007. At the time, she and her husband wanted to focus on other endeavors that were important to them.

But when Kate sold her company Kate Spade, she also sold the trademark rights to her name. That means she cannot—I repeat CANNOT—use that name for commercial gain. Trademark rights hinge on use in commerce.  As long as Kate Spade the brand maintains and uses that name, Kate the designer cannot use it commercially.

So when Kate wanted to start a new brand called Frances Valentine in 2016, she couldn’t use her name, Kate Spade to promote it. So what’s an internationally-famous designer to do? She changed her professional name to Kate Valentine in order to differentiate the old brand (Kate Spade) with the new brand (Frances Valentine).  She also employed a marketing campaign, “Where is Kate?”, aimed at explaining in a whimsical and tongue-in-cheek way why Kate began a new line without using her name.

This situation is so very fascinating from a legal standpoint. Kate built Kate into a brand. Kate sold Kate, and Kate started a new non-Kate brand. But then Kate had to figure out a way to use Kate without using Kate to promote non-Kate.  Got it?? LOL!

Why? The legal standard for infringement in trademark cases is will the use cause likelihood of confusion to the consumer. If Kate uses her former legal name Kate Spade to promote Frances Valentine, her new brand, it is conceivable that consumers could be or would be confused.  They might think they were buying Kate Spade, the brand, when in fact, they are buying Frances Valentine.

So what’s in a name? A lot more than you may think. So when choosing a name for a brand, choose wisely.

The post Case Study in Branding: What’s in a Name?  Let’s call a Spade a Spade. appeared first on The Southern C.

What’s in a Name? A Logo? A Tagline? Short Answer: The value of your entire brand.  Of all of the types of intellectual property, trademarks are THE most powerful.  Why?  Simple answer, if the business owner has continuous and consistent use, they never expire.  That means that the trademark can live on long after you or I do!  So, why are business owners so slow to take care of something that has so much value? Taking care of the legal side of business, not just trademarks, can be similar to bolstering the foundation of your home or purchasing a new roof.  Not exactly the most exciting way to spend money, however, what happens when those things are ignored?  The entire structure is compromised.  It is the same way with legal aspects in business, particularly your brand and trademark.  Let’s take a look at some of the most common myths and misconceptions I hear on the regular.

1. Trademark, Domain Name, and Incorporating = the Same

I hear this one a lot. “I registered my domain name, or I incorporated so I have protected my business name.”  Although those actions do protect your business and may be evidence that you are using a certain mark to identify your brand, that is NOT trademark protection.  Registering your domain name is similar to purchasing your virtual window front.  It is where you are going to conduct some or all of your business.  Incorporating your business registers your name with the state where your business is primarily located.  It separates you as the individual from your business; it separates your personal assets from your business assets. Incorporating puts the public on notice that you are an actual business rather than an occasional money-making hobby.

Registering your trademark, whether it is a word mark or design mark, puts the entire country on notice that you are using that mark in connection with certain goods or services, therefore you are the presumptive owner of the mark.  That means if someone else comes along and begins using your mark, or something similar, the burden is on that party to show how or why they should be allowed to use their mark.  If registered, you have the exclusive right to use that mark within your specific class of goods.

2. My Business Isn’t Big Enough, So I Don’t Need to Worry About It.

Nothing begins big. However, if you do not protect what you begin with, you run the risk of staying small and not being able to expand. The courts are jammed with decisions that bear this out.  Here is a typical scenario: Small business begins, but it does not protect their trademark.  The business continues to grow over a period of months, then years.  At that time, the business decides, they are “big enough” to protect their mark only to find out that someone else has already registered the same mark! Now what happens to the little business that grew? There are a few scenarios that could play out. First, it is possible that both companies could agree to coexist without limitations. That infrequently happens.  The more likely scenarios are that the company that registered would seek to limit the other business from using the brand name, or worse, that company would demand the business change its name all together, or the worst the business could file suit for infringement.

3. My Branding Team Will Help Me with That

While branding professionals are a wealth of knowledge and have great experience, they are not usually trained in how the law affects branding. A branding professional can advise on the aesthetics, the crafting of a story, and the overall look, feel, and sound of a brand, however it is outside of their job description to advise on whether the name can legally be used. I have been in and witnessed situations where the brand name was beautiful and “on-target,” so to speak, but for legal reasons would be a problem.  As is frequently the case though, the business owner does not know this because they hire the branding before they take care of the legal.  Often, order affects outcome. Truly, the only way to know with any degree of certainty if you can use a name or a logo is to have a trademark attorney perform a search.  Short of that, you are playing Russian roulette with you brand.

4. It’s Easy; I Can DIY It

There are many who DIY taking care of their trademarks.  There is nothing that says that you must hire an attorney, although the regulations are beginning to change because the US Patent and Trademark Office, are receiving a record number of fraudulent and inadequate applications.  Still, you can try.  However, intellectual property law, which includes trademark law, is highly nuanced.  In this day of Google and DIY, the Internet has no shortage of information, however much of it is 100% incorrect or half correct. Either way, you don’t want to make a decision that affects your entire brand based on either of those percentages.

5. I Can’t Afford It

This is the truth; it may sting a bit.  You can’t afford not to protect your brand!  You may invest $2000 to protect a mark.  The cost of not protecting your mark could be upwards of $10,000 or more depending on whether, down the road, another company demands that you are to stop using your name, or worse yet you find yourself in an infringement lawsuit.  If sued, the costs could rise to 6 figures. Relatively speaking, $2000 is a small amount to invest to ensure that, going forward, your brand is in a position of strength in the marketplace.

6. No One Would Copy My Name, So There’s No Need to Protect It

It could be true that no one would copy your name intentionally, and vice versa.  You would be amazed at how many people have the same idea for a brand name. Registering not only protects you from those who may want to use the name you are using, it also protects you from using another business’ name that has already been using the name in the stream of commerce. 

Hopefully dispelling the most common trademark myths and misconceptions helps clarify why and how your trademark is a vital part of your business.  If you are considering beginning a business, this should be part of your budget.  If you have already begun your business, you should make it a goal in the imminent future. The trademark process is not a short one, so assuming you hire a trademark attorney, you will be working with that person, for a minimum of 9 to 12 months.  Not only factoring the cost but also the time it will take to secure the trademark protection is an important business consideration. As I tell my clients, and really anyone that will listen, “if it’s worth creating, it’s worth protecting.”

DISCLAIMER: The materials available in this article are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this website do not create an attorney-client relationship between Angie Avard Turner Law and the user or browser.

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