You heard a lot of things about the importance of registered trademark and own your trademark but you’re not sure what the registered and unregistered trademark means. Well today that’s what we’re going to talk about and by the end of this video you’re going to be clear about the difference between registered and unregistered trademarks. My name is Michelle Murphy, I’m the owner Wilson Murphy Law and I work with small business owners to protect their business through trademark registration and contracts. Before we get started make sure you like or dislike, comment, and subscribe to my channel.
Trademark symbol differences:
There are different symbols for registered and unregistered trademarks. Registered trademark defines that the symbol has R with the circle around it.
And if your trademark is not registered then you use the TM symbol. If it can be shown that that you use the registered trademark symbol to deceive consumers or competitors then the United States Patent and Trademark Office (USPTO) will reject your application.
The main benefit of having a registered trademark is that if a competitor or someone else infringes on your trademark then you can sue them in federal court and potentially recovers damages incurred due to an infringement a.k.a. compensation from the infringer.There are common law trademark rights but that only applies in the geographic region that you are in. So if you live in Nevada and someone in New York infringes on your trademark then you have no recourse.
Ownership Of trademark:
The benefit of a registered trademark compared to an unregistered trademark is the presumption that you own the trademark. If you did not register your trademark then you have to prove that your business was the first one using the trademark. When you sue someone for trademark infringement you must prove that you were using the trademark first and that the infringer’s use of the trademark causes confusion to consumers.
So those are just some differences between registered and unregistered trademarks. If you want to know a little bit more about trademarks, make sure you sign up below to get the trademark process roadmap.
Do you ever wonder why the heck you have a terms and conditions page on your website? Do you know what to include in your terms and conditions? Well, let’s chat about that today. I think it’s so important when it comes to the legal part of your business to know why you need to do certain things and not just blindly doing it because someone said so.
Terms and conditions (or Terms of Service) is an agreement that you put on your website that your visitors know how to behave when they are visiting your site. By setting out these expectations, it is easier to defend your right as the owner not allowing them on your website. Expectations are so much easier if you have a list telling someone what to do. If a visitor does violate your terms and service, you can ban them from your website or even sue them if it’s detrimental. Now that you know what terms and conditions are for, let’s get into what to include in your terms and conditions.
If you sell services or goods, then you need to have a refund policy. Your refund policy needs to be consistent across the board. If your refund policy isn’t consistent, then any chargeback will likely err on the side of the purchaser. Do you want to lose thousand dollar chargebacks? I didn’t think so. By having a refund policy, the purchaser agrees to how you handle refunds, and it’s harder to argue against it. Also, I recommend that you add refund policies to the pages of your products/services. Your refund policy should include the following:
The numbers of days a customer has to return a product
What kind of refund you will give to the customer after they return an item
Who will pay for the return? If you sell digital products, whether you accept refunds, and if so, in what cases.
Not sure what intellectual property is? Intellectual property is a work or invention that is the result of creativity. Intellectual property includes copyrights, trademarks, patents, and trade secrets. The content you produce on your website is copyrighted material. The name of your website and any courses you create are trademarks. The ultimate protection you get is by registering your intellectual property with the right federal agency. By including how people can use your intellectual property, it will keep visitors clear about whether or not they can share your content. Some people don’t want to share any of their blog content, but there are other websites like BuzzFeed who encourage their visitors to share.
Also, if you register your trademarks, you must defend them, or you’ll dilute your brand and will no longer have the same type of protection. If you aren’t protecting your intellectual property, then it’s hard for people to distinguish you from the millions out there. So if someone violates your terms regarding your intellectual property, you should include the consequences, such as deactivating their account or sue them for damages.
Limitation of liability
A limitation of liability clause limits the amount and types of damages one party can recover from the other party. You can’t put a financial cap on death or personal injury arising out of negligence or fraud or fraudulent misrepresentation. You must follow the state’s laws, and the limitation must be reasonable, clear, and conspicuous. If your limitation is confusing or contradictory, the court will construe it in favor of the client/customer.
Because your website is yours, you can stop people from coming to it, if they don’t abide by your terms and conditions. When you have a termination clause, you can tell your visitors the expectations you have from them when they visit your site. If a visitor can’t follow this, then you are allowed to terminate use. Termination is especially useful for those who have memberships and subscriptions. Most termination clauses contain two standard points:
1. If you violate the terms and conditions, the owner can revoke access;
And 2. The business is allowed to terminate for any reason at the discretion of the business.
Some things that businesses include for grounds for termination are stealing your intellectual property, making disparaging comments, and not paying the fee if it’s a membership or subscription service.
Bonus: Include a clickwrap so that your visitor has to expressly agree to your terms. I’m still trying to figure out how to add a clickwrap pop up without a ton of pop-ups on my page. But in short, a clickwrap is a pop up that says, “I agree.” It is a legally secure and easy way of creating binding agreements with your visitors online. There are a few legal cases that discuss clickwrap.
Now that you know, are you going to include these sections in your terms and conditions? Do you have terms and conditions on your website at all? If you don’t, you can grab it from my contract template shop. It takes about 15-20 minutes to fill in, and costs 1/2 the price of hiring an attorney.
This question gets asked to me time and time again. When should my small business register its trademark? And I’ll give you the lawyerly answer, which is, it depends. I’ve recommended many of my clients to wait, but I’ve also recommended clients to start before their business even opens. If you aren’t sure if it’s time to register your trademark, use the following factors below, and see if any of them applies to you.
You’ve chosen a name that you don’t want anyone else to have
I have seen it so many times. Someone comes up with a name that they worked really hard to create, and soon enough, someone else starts using it. Now they’re trying to trademark it, and you have to battle over the name. If you had registered the trademark, you would already have the exclusive rights. Thus, the other company would have to choose another name. So if you are totally in love with a name and you CANNOT let it go, then do a search on Google and social media to make sure that name hasn’t already been taken. If it hasn’t been taken or you don’t think it’s been taken, then you can move forward to the next steps to register your trademark.
Your name is in the media
If you or your business has gone viral, then it’s time to move forward with the trademark process. As much as I deplore the family, the Kardashians do this ALL THE TIME. If anything they do goes viral, they try to cash in so that other people can’t use their trademarks for monetary gain. Registering your trademark takes about a year, so it’s definitely not something that happens overnight. But people are waiting on the sidelines to cash in. I covered a story on Instagram about Meg Thee Stallion trademarking “Hot Girl Summer,” but there was already someone who filed first. So now Meg Thee Stallion has to wait in line for her application to hit the trademark examiner’s desk. It sucks, but that’s how it goes in the trademark streets. Going viral happens in a snap second, so you want to be ready to file when it does.
Your business is sustaining itself
Many people don’t want to invest in their trademarks when they first open their business. The most common factors are not sure about keeping the name or your small business is unable to afford to register your trademark. If you don’t even know if you are going to keep the same name, why invest if you’ll have to pay for the new trademark? But the more common reason is that most small businesses can’t afford to trademark when they first open up shop. However, if you are consistently turning a profit that is actually sustaining your business, then it’s time to start looking into the trademark process. This means that people are actually buying from you. When your business is sustaining itself, more than likely, more companies are going to want to work with you. These companies are using you for your brand reputation. When your small business registers its trademark, these companies are going to take you more seriously and are more willing to invest in any collaborations that you do.
I believe that everyone should start looking into trademarking sooner rather than later. Even if you don’t register immediately, you will have some knowledge of how the process works and the costs. At that point, you can build a plan around it.
If you are ready to start the trademark process, use the form below. Wilson Murphy Law will be in touch shortly after.
Your business is growing and you’ve been hearing the buzz about registering a trademark 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 to register a trademark for your business’s name because many times it’s put on the back burner. There are many benefits that business owners don’t realize they receive after registration. Business owners know how important the legal aspects are, but don’t know where to start or how to grow their business.
But today, you’ll find that the sooner you file your application, the better so you can take advantage of these benefits.
1. You have ownership rights
This is THE #1 reason to register a 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 registered trademark allows you to enforce your mark against any infringers (see more about this below).
You also know that when you trademark a business name, it is officially yours and that you aren’t infringing on someone else’s mark. 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 mark is registered and that you are ready to defend it against infringers. When you use the registered symbol, you are claiming rights as the owner of the trademark. The registered symbol can be used whether you’re on the principal or supplemental register.
You are only allowed to use the registered symbol after the TM Office approves your TM. 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 mark is not registered.
3. When you register your trademark, you have the ability to sue infringers in Federal Court
Once you register a trademark, it is your duty and responsibility to defend it. If you are not defending your mark, 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 mark, 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. When you register a trademark, you own a valuable asset
Trademarks are one of the most valuable assets of your business. As you continue to grow, your trademark gains value. Brands like Apple, Coca Cola, Google, and Netflix have brands valued in the BILLIONS due to the brand recognition they’ve acquired. Once your brand is earning more and more recognition, other companies are going to notice you.
You can license your mark to another company to use for collaborations. A license is when you allow another company or person to use your trademark to make products or conduct services under a trademark licensing agreement.
Another way that you can use your trademark is to sell it. There are plenty of companies looking to acquire names that they love and have built their brand on, but you have the trademark. If you are no longer using the mark and have no plans on using it, you can sell and assign the mark over to that company. In the end, either of these strategies means money for your company. When you invest in your trademark, there’s many things you can do so that it earns money for you.
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.
Final thoughts on the benefits of registering a trademark for your business
There you have it, the 5 reasons that you need to register a 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 understand the trademark process and mistakes to avoid when picking a name and filing an application.
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.
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.
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.
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.
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.
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.
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.
Put a release in your client contract and your terms and conditions.
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.
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.
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