The StartupNation Blog Trends, tips and real-life anecdotes from industry experts

Archive for “Web-Based Business”

Got a Web Checklist Like This?

You have your new Website up and running, and are ready to start bringing in sales. Perhaps, you spent hours writing the copy yourself? Or maybe you hired a big, Web company to design a site with all the bells and whistles? Either way, you are not finished…. unless, you did this one, key step… [...]

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Ladies: Getting Your Legal Foundation in Place is Sexy!

This one is especially for the ladies, because I think this is an epidemic issue with us.  But men, you are warmly welcome here!  I hope everyone gets something from this post….read on! There are so many programs out there that talk about marketing, sales, Social Media, finding your bliss, etc….  All of these things [...]

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Is Your Website Putting Your Business At Risk?

a. Have a Terms of Use Policy on your website:

All business websites should have a “Terms of Use” page. It is basically a contract that sits on your website under a “Terms of Use” tab and it spells out in detail the terms required if someone is going to use your website. If your site contains copyrighted content, offers advice, or sells products or services, a Terms of Use agreement is a must. What language in your Terms of Use agreement depends on your business.

For example, if you sell clothes, you will need terms of use that governs use of the website and the terms by which your customers purchase items from your website. If you offer professional services of some kind (like a law firm or doctor’s office), your terms of use might include a statement that no attorney/client or doctor/patient relationship is formed by the mere use of your website or by the act of sending you an email.

If you allow people to post comments or content on your site, or you have an interactive forum, you absolutely need terms of use that govern those activities and that spell out what is prohibited, and that reserves your right to exclude people from your site.

No matter what your business is, you need to give some real thought to what needs to be contained in this agreement, and you should use others in your same business as a guide for what needs to be in there. This is a really good time to retain a reputable lawyer who knows how to draft terms of use properly for your type of business.*

b. Have a Privacy Policy on your website

Next, you must also have a clearly posted privacy policy on your website. If you have forms that collect personal data from visitors to your site, such as an opt-in form to collect email addresses or other personal information, you should post an abbreviated and clear privacy policy right below that form. But then you also need a more comprehensive policy published on your site somewhere that is easy to find. The policy should deal with how visitors information is handled, collected, kept safe, the use of cookies, etc…

The reasons for having a privacy policy are twofold. One, it is about building trust with your customers and clients. As we have seen with the privacy faux pas by Facebook, people care passionately about their privacy and don’t take lightly an unauthorized use of their personal information. In order to build trust, which is critical in today’s world of social media/relationship marketing, you must have a clear policy on how you will use the information you gather, and you must adhere strictly to it.

The second reason for having a privacy policy is to protect yourself legally. This is very important, especially if you collect any kind of information from visitors on your website. For example, if you collect personal information for an opt-in box for a newsletter or ezine, or from people who want to use your online forum, or from people who register for an account or membership on your site.

Also, if you send out email communications with your customers or clients, you absolutely must adhere to the federal Can-Spam Act or you could find yourself being prosecuted and fined heavily for being a spammer. This is no small thing and I have had clients almost go out of business because they were embroiled in litigation with the US Attorney’s office for violation of the Can-Spam act. Among other things, you must have clear authorization to contact someone via email, and you must provide a clear and easy way for someone to unsubscribe from your list. Never ever send an email to someone who didn’t voluntarily give you their email address and agree to you using it to contact them. I personally think the best way to handle this for yourself is to use a service that will collect and monitor emails for you, such as Aweber, iContact or Constant Contact. They will receive the “unsubscribe” requests and the database will automatically remove that email from your list and will put it on a “do not contact” list to comply with the Can Spam act. There is a monthly fee to use these services, but this is about easily minimizing a huge risk in the virtual world and I wouldn’t bat an eye and using one of these services.

If you put these two items in place on your website, you will make huge leaps forward in protecting your hard work, your business and your reputation as your business grows in the virtual world.

*As an alternative, I will be offering several versions of a sample terms of use policy in my Business Brilliance University, so go check out my self-help resources there as a way to jump start this process yourself and possibly save yourself thousands in legal bills.

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I love the internet. It is a great leveling force, allowing small businesses to have the same presence at huge corporations. It allows start-ups to reach as wide an audience as multi-national companies. And these days, getting online and having a great looking, user-friendly website is as easy as saying 1-2-3. But before you launch [...]

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Stop Dilly-Dallying. Get This Book. Start a Business.

It’s time. Right Now. Stop dilly-dallying. Starting a business doesn’t have to be scarey. And you don’t have to wait. Start on a path to opening your own business. Get our life-changing book, StartupNation: Open for Business. There are easy steps you can take. And there are over 30 examples of success stories using our process, [...]

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A North Face By Any Other Name Would Smell As Sweet….

I just came across a great blog post by a fellow attorney, J. Michael Hurst at Keating Muething & Klekamp PLLC. Apparently, 19-year old Jimmy Winkelmann created a company called The South Butt LLC, which was meant as a parody of The North Face.

Here are the two logos at issue:

 

Apparently, Jimmy has a great sense of humor and set up his company to sell some t-shirts and hopefully raise money to cover his college tuition (he did end up raising something like $100,000, according to Hurst). I love this disclaimer on his website:

We are not in any fashion related to nor do we want to be confused with The North Face Apparel Corp. or its products sold under “The North Face” brand. If you are unable to discern the difference between a face and a butt, we encourage you to buy North Face products.

(Sound of author trying to compose herself after period of robust laughter)

Anyhoo….long story short, management at The North Face failed to see the humor in this situation (or apparently the difference between a face and a…. bottom) and actually slapped Winkelmann with an expensive trademark infringement lawsuit.

Hurst’s post does a great job of analyzing what the North Face would have to establish to prevail on their claim (something Hurst doesn’t think they will succeed in doing – and I agree with him).

But this does bring up a couple of really important points for those of us launching and running businesses.

(1)  Don’t Use A Name That Is Already In Use!

When you are choosing a name and logo for your company, make sure to research whether that name is in use already (particularly in the industry that your company will be in) and make sure you do not create a logo that looks like one from another company (as best as you can determine). You need to search your state records for names (usually the Secretary of State’s office will have the ability to search LLCs and Corporations in your state;  also search any other state in which you plan to do business now or in the future).  Also search national records, such as the TESS at the US Patent and Trademark office. I also recommend doing a Google search for the name to see if the domain is taken (or any variation of it) and to see if anyone is already using that word or combination of words for their business already.

Right or wrong, big companies generally are not shy about enforcing their trademarks (as you can see in the North Face case) and you don’t want to end up getting a cease and desist letter from an in-house legal department just after you spent your last red-cent having your logo and branding designed.

If your name or logo could cause confusion between your company and one with an already established trademark, you could be found to be infringing on their trademark. If you are, you could be forced to change your name, logo, packaging and anything else that uses the infringing mark. If you have any market traction already, you would then have to rebuild your brand and lose the work already put into marketing the infringing name/brand/logo. Add to that potential money damages and attorneys fees, and not doing your homework about your trademarks becomes an expensive (and potentially fatal) detour for your business.

(2)  Protect Your Own Trademarks!!

Once you are sure you aren’t at risk of infringing on someone else’s trademarks, make sure that you have properly trademarked your own logo, tag lines and even product names and packaging so that you have the ability to protect your intellectual property and branding if someone does attempt to infringe on your trademark in the future.

Generally, “use” of the trademark itself does give you some protection (use the ™ symbol as soon as you start using anything you want trademarked). That means, always include the symbol on your website, on all of your advertising, correspondence/emails with customers, and written materials at a minimum.

But the best way to protect yourself if to file with the US Patent and Trademark Office in order to have a “registered” trademark (at which point you use the symbol ®).

Of course, I recommend hiring a good lawyer for this, as the paperwork can be tricky and you want to make sure it is done right. However, there are services out there that can help you file your own paperwork, such as Legal Zoom, so you have that less expensive option.

Just don’t decide to NOT trademark your branding. That could be an expensive mistake if someone else decides to use your name, logo or a variation of your logo (deliberately or without knowledge of yours). If you don’t have a registered trademark, you might not be able to stop them from using it, you will have less protection under the law to go after them, and might even lose your right to use your own name or logo in the future.

I’ve glossed over this because it is really fairly complicated subject, so make sure you find someone knowledgeable in trademarks to help you navigate this process.  (And now for the required disclaimer:  this post is NOT intended to give legal advice, so seek your own independent counsel for that!)

And if you have any experience with trademarks for your business (positive or negative), or questions, we want to hear from you so make sure to post a comment below!

You can read all of Hurst’s post at the link below.

http://intellectual-property.kmklaw.com/Trademark-Parody

 

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I just came across a great blog post by a fellow attorney, J. Michael Hurst at Keating Muething & Klekamp PLLC. Apparently, 19-year old Jimmy Winkelmann created a company called The South Butt LLC, which was meant as a parody of The North Face. Here are the two logos at issue:   Apparently, Jimmy has [...]

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