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Ryan Responds: What’s the Difference Between a Trade Name and Trademark?

Ryan Responds trade name vs trademark

Is a Trade Name and a Trademark the Same Thing, or are They Different?

In this Ryan Responds video, what are the differences between a trade name and a trademark. Short answer: they are different. Much of the confusion comes up nowadays when people are registering their business and trying to come up with the marketing and advertising for it. This is especially true when you add in the registration of domain names and social media accounts; this shall be a future post when it comes to branding strategy and protection in our interconnected world. However, for today’s topic we are focused on just trade names and trademarks.

Critical for Business Owners to Understand for their Marketing and Branding Strategy

If you are launching a new business, then you really need to grasp the difference between these abstract legal terms. It will impact your naming and registration strategy for the business and its brands before you launch. Why? Because you will do a lot of market research prior to registering your business and applying for trade names and trademarks.

I’ve seen many new business owner fail to grasp these intellectual property and business registration issues; they then go through all this energy and expenditure planning for the naming and marketing of their business, only to pay the price in changing registrations and applications, taking down their advertising, and basically upending their whole marketing strategy. They have to rethink their branding. As always it is best to do some research and speak to an attorney prior to taking any action that could make you liable, especially if you are unclear about intellectual property infringement.

Finally, in addition to the video below we provide a one-sheet on the same topic for your reading.

 

If You have a Question for Future Ryan Responds Videos …

Finally, if there is a short question you want the answer to submit them to admin@hewbordenave.com with the Subject line “Ryan Responds”. Please keep your questions short, general, and related to a business topic. Please do not provide specific details of  your matter or attempt to seek direct and specific legal advice through this format. If you need assistance and legal services, then please schedule a consultation with an attorney in your relevant jurisdiction.

If your matter is located in the Hawaii or California jurisdictions, then feel free to reach out to us to schedule an initial consultation here.

Thanks for watching!

RKH

Disclaimer: The content of this video is for general information purposes only. Nothing should be taken as legal advice for an individual cases or situations. The viewing of this video does not create an attorney-client relationship. If you need legal advice, please contact an attorney in your relevant jurisdiction.

Who Owns a Twitter Account? Are Bloggers Journalists? What about CAN-SPAM?


Well, it’s 2012, but social media is still around and as you are trying to figure out how Timeline works on Facebook these are some of the interesting social media and the law stories that have cropped up:

Item #1: Who Owns a Twitter account?

A former employee is being sued by his South-Carolina based company. For? Taking their twitter account. Noah Kravitz of Oakland, CA is being sued by PhoneDog, a mobile phone news site company for multiple claims pertaining to his act of switching a Twitter account used by him for the company. This account had amassed a following of 17,000 followers, and PhoneDog is seeking damages of $2.50 per follower over eight months for a total of $340,000.

Based on the couple of articles I read on this story the only thing clear is that the terms agreement surrounding the account were unclear. As more and more companies continue to see social media as a valuable tool and resource and are actually having workers use them the reality is that we will see more lawsuits arise. I think the valuable lesson here is to have a social media policy, a worker agreement for social media marketers, and transfer procedures in cases of ending events, like termination. Without agreements in place you will be left at the mercy of a court.

You can read more about the situation in this New York Times article.

Item #2: Bloggers are NOT Journalists.

BLOGGERS PAY ATTENTION! You may think you dig up the facts, do solid research, and ask serious questions, but you may have to face the fact that courts may not see your as a journalist. Why is that important? In many states there are media shield laws. For example, Oregon has such a law.

Blogger Crystal Cox sought to defend herself from investment firm Obsidian Finance Group against a $10 million lawsuit for defamation. The blogger lost the case even though she argued that she was an “investigative blogger.” The judge disagreed because she was not employed by some official media entity, and therefore she could not take advantage of Oregon’s media shield law. She lost and the judgment against her was for $2.5 million.

I am not sure if this had any effect, but just from casual observation and what I am told from litigators and trial attorneys is that pro se (representing yourself) litigants often lose, and often lose badly.  So that may have been a factor. However, what is clear is that just blogging and acting like a journalist is not enough. For more info read this article from Seattle Weekly.

Item #3: Optimal Social Media Marketing Plans Can Help you Comply with CAN-SPAM Act

I ran across this post, “How to Make Optimum Use of Social Media Platforms for Marketing Your Business” while flipping through my Zite app on my IPad. If you are a small business like me and are trying to get a handle on this thing called social media you know it isn’t always easy making a connection via Twitter, Facebook, or even your blog. So I really appreciated the tips it gave in this short post.

However, when the biggest things that help me to help you (via this article) is that last section, “Automation doesn’t turn out to be Helpful Always” – why? Well, I did a Law Lunch with The Greenhouse Innovation Hub back in December where I talked about complying with the CAN-SPAM Act.  It seems that good marketing mirrors what CAN-SPAM Act is trying to curb namely:

Whenever you are searching for consumers, you need to strike real conversations and do not spam their inbox with auto-generated mails.  This can even turn a potential customer away from you.  It is necessary that you engage in regular conversations with qualified leads.

So do yourself a favor and stop relying on spam and do real conversations and follow-ups. In addition, make sure you are complying with the other requirements of CAN-SPAM Act (because it does not apply just to bulk e-mails) when sending that personal touch e-mail.

Have a great first work week of 2012! Lookout for Draw the Law next week. If you can’t wait to see my doodles “Subscribe” today!

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Crafting a Social Media Policy: The Outside World


Last post was about creating a Social Media Policy with respect to the employer-employee relationship.  The idea is to minimize potential suits between the employee and employer.  Issues like prohibiting certain behaviors, such as posting negative comments or former employees taking company information should be the concern with an internal policy.

However, many businesses are coming to realize the potential power of blogs, Twitter, and Facebook and readily use social media as a marketing and advertising tool.  And why not?  It is free, relatively easy to set-up, and allows you a good amount of control over content.  However, just like internal disputes you can quickly wind up with external disputes with other companies, commenters, and the like over issues of intellectual property infringement and defamation.

Advertising Statements: Puffing Yourself Up and Tearing Down the Competition

FTC and Endorsements: Disclose Your Relationship

Generally, marketing, advertising, and public relations specialists are comfortable with using mere words of puffery.  They also know that it has been the law that if an ad features an endorser who’s a relative or employee of the marketer or if that endorse has been give something of value in exchange for praise of the marketer’s product or service the ad must disclose the connection.  The point is that knowing about the connection helps the reader or watcher evaluate the quality of the endorsement.

This attitude comes into play when using social media as well.  Specifically, the FTC has issued guidelines about how bloggers, and social media specialists talk about a company’s product or services.  This includes your employees, as well as any marketer, advertiser, or in generally someone speaking on your behalf and you give them something expecting endorsements.

Say you have a new delicious musubi (rice ball) that you want people in Honolulu to know about.  One of your employees is a well-known food blogger.  You give her a sample of the product with the intention that she is to eat it and then rave about it on her blog.  If she does not state that she is your an employee you would be violating the FTC guidelines.

Defamation: Don’t Start Ugly Rumors

On the flip side is going after the competition.  If you or your employees typically engage in discussions via Twitter, Facebook, or comments on your company’s blog you may sometimes start joking with one another.  It is easy to see that this leads to making fun of the competition’s products and services.  However, going too far may mean making false statements that damages their reputation.  In this situation, you may be slapped with a defamation suit.

The general better policy in a situation like this is to remind people to be positive in their postings rather than taking the low road.  Above all do not engage in the rumor mill thinking that the amount of information going out there will protect you.  Once something gets sent out onto the Internet it is almost impossible to take back.  Just look at some of our politicians and celebrities to realize the truth of that fact.

Intellectual Property: Using Other Works

Many people love to share images or quotes on their Facebook posts, Twitter feeds, or blogs.  Generally, they search the web for a cute image and slap it on their post and think they are done.  While, they think that is ok, what they are unaware is that they are infringing on the person who took or made that image’s intellectual property (IP) rights.  When it comes to business the stakes are higher because the owner believes you are using their working to make a profit.

Copyright and Trademark Infringement

In general, when using images and phrases the best policy is to create your own or license it out.  Do not take images and words from another’s website and slap it on your own trying to claim it as your own.  For a prime example of this you can look at my own blog.  Many of the images I use are stock photos,  if I were to go to another law firm’s website and start taking their images and pdf files and posting them here, and claiming them as my own those would be violations of the firm’s intellectual property rights.  While, there may be a  “fair use” exemption it is less likely you will get to use it for your money-making company blog, Twitter, or Facebook page.

Best policies are to create or license the images you want to use, be sure to use attribution links and short quotes from another site.  The last thing in the social mediaverse is you want to be known as a thief of people’s IP.  Always clear use of photos, music, works, etc . . . if you don’t know where they come from.

By the way, remember that people do have publicity rights this includes their image, likeness, and name much like a company controls their trademarks and copyrights, celebrities and people control their image.

Last Words

Next week, I will wrap-up this section with some general tips of crafting a policy and what to think about and some other miscellany.  In general, if you are concerned or feel that your company and employees need a re-training or updating on social media and the laws talk to an expert and have an attorney review and draft your policies.

Don’t forget if you enjoy this series or any of the other series on my blawg feel free to subscribe in the right-hand corner of this page to receive e-mail updates on posts.  If you are on Facebook be sure to “Like” “Ryan K. Hew” to get updates there as well.

See you next time!

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*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.