Trademarks and Fair Use in Commentary

I have clients who operate websites that allow third-party content.  While NOT my clients, think about sites like Yelp, Twitter, Glassdoor, or even Facebook as examples. When you operate websites that allow other people to go online and write whatever they want, chances are you are going to see an allegation of Trademark Infringement via a cease and desist letter.  I typically see them in the context of someone alleging trademark infringement because someone is using the trademark to talk about them online – most often critically.  These cease and desist letters come in from attorneys (which I always raise an eyebrow at), reputation management companies (again which I raise an eyebrow at) and everyday people which I can better understand because many simply don’t have an understanding of this area of law.

Due to the overwhelming issues that I see with these cease and desist letters, I thought it might be good to cover some basics:

What is a Trademark?

A trademark is a word, name, symbol, or device, or any combination thereof, that is used to distinguish the goods of one person from goods that are manufactured or sold by others.  Think of it as telling people the source of the goods.  Think of “Pepsi” or “The Home Depot” for example.  Those are trademarked words that clearly distinguishes them from other sources of goods like “Coca-Cola” or “Lowe’s.”

Protecting your Trademark.

It is important to police your trademark so as to keep it from falling by the way of generocide (death by becoming too generic due to its popularity and/or significance) or being counterfeited (knock-offs). A common example of generocide includes trademarks like “escalator” for the moving staircases.  If you are curious you can read more about generic trademarks.  A common example of trademark counterfeiting includes the cheap knock-off/fake Louis Vuitton handbags.  You know, the ones that look like it’s the real deal at first glance but any savvy fashionista knows better upon closer inspection.

Trying to use Trademark as a Reputation Management Method.

Yes, there are times when you should be policing your trademark as discussed above. However, just as I cannot talk about The Home Depot without saying “The Home Depot,” the same goes for anyone else wanting to talk (or write), good or bad, about a particular brand. Such use falls under what is called “nominative fair use” which applies when a person has used one’s trademark to describe or refer to the trademark holder’s product. As with most aspects of law there are caveats and tests, however, generally speaking, just because you have a registered trademark doesn’t mean that you can submit cease and desist letters and allege trademark infringement as a way to get websites to take down content critical of your business.  Chances are, in that context, it is NOT trademark infringement.

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

 

Advertisements

Five Benefits to Keeping Your Business Lawyer in the Loop

Let’s face it, the word “lawyer” for many is akin to a four letter expletive that people are offended by. Typically because it reminds people of getting sued and/or having to shell out, often unexpectedly, loads of cash that they rather have spent elsewhere…like on a vacation.  Similarly, like in all professions, not all lawyers are created equal, and not all lawyers really have their client’s financial interests at heart – after all, being a lawyer and having a law firm is a business. I personally pride myself on NOT taking advantage of my clients…giving them direction on how they can do things themselves and helping only where they REALLY need/want it…but after 18+ years in the legal field, I know that not all lawyers share my same client-friendly mindset. It is no wonder that people cringe at the thought of having to use a lawyer.

Lawyers don’t have to be a thorn in your side through.  In fact, a good lawyer can be a business’s greatest adviser and advocate – keeping in mind that a job of a lawyer is to tell you what you NEED to hear which can sometimes be very different than what you WANT to hear. All businesses should have a lawyer or two that they keep in regular contact with and it should be part of your regular business operating budget.

Before you go thinking I’m crazy, here are a few reasons that keeping your lawyer updated on the goings on of your business is advantageous:

  1. Lead Generation: Your lawyer can often be your biggest cheerleader (and lead generator) for future customers. Chances are your lawyer is tapped into many different networks.  You never know when someone they know will need your business’s products or services and a solid referral from your lawyer could be future revenue in your pocket.
  2. Idea Generator: An attorney that understands you, your business, and your goals can be an invaluable asset when it comes to creative thinking.  Brainstorming on new ideas with your lawyer may prove to be helpful in that they may be able to think of concepts outside the box for your business that you may not have already thought about.  What if that lawyer helps you generate the next million dollar idea?
  3. Cost Cutting: One thing that many lawyers are good at is organizing and streamlining processes – it’s part of the way we think.  What if your lawyer was able to give you ideas on how to streamline an existing process that will considerably help cut costs moving forward?  If a few hundred dollars for your lawyer’s time on the telephone could save you thousands of dollars in the next year, wouldn’t you do it?  Sure you would.  You’d be a fool not to.
  4.  Risk Mitigation: When you brainstorm with your lawyer on a new business concept, they can often help you plan your road-map to reach your goals and help you navigate around pitfalls that you might not even think about.  For example, when clients come to me talking about setting up a new business I always ask them the business name and ask if they have considered any reputation issues with that new business name.  The same goes for contracting issues, employee issues, etc. To that end as well, there is a LOT of bad information being circulated around on the internet. Indeed it is wise to conduct your own research but don’t you think it prudent to have your research double-checked by someone who knows where to actually find the correct information when it comes to the law? As Dr. Emily So once said, “better information means better ideas, means better protection.”
  5. Cost Effective: It is a lot cheaper to keep your lawyer up to speed on your business as it grows, even if through a short monthly 15 minute call, than it is to try and ramp your attorney up (trying to teach them everything about your business, including policy changes and the like in a short amount of time) when you suddenly need advice in order to be reactive to a situation – like when you are named as a defendant in a lawsuit.  When you are named as a defendant in a lawsuit, you typically only have 20 days (varies by court and jurisdiction) from the date that you are served with a complaint in order to determine what your defenses are and what sort of a response you will need to file.  That process becomes a whole lot easier if your attorney already knows about you, your business, it’s policies and procedures, etc.  It is also easier to to budget in a few hundred dollars a month to keep your attorney up to date then to get smacked with a request for a $20,000.00 retainer, most of that potentially being eaten up just “learning” about your business, and then having subsequent large litigation bills.

As you can see, there are many reasons to regularly communicate with your attorney and hopefully you would find it more advantageous and beneficial than paying your monthly insurance bill. As Benjamin Franklin once said, “an ounce of prevention is worth a pound of cure!”

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

 

From the #MoronFiles | A “Nominal Defendant”

PRELUDE: 

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shitbags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

07/05/2017 #MORONFILES ENTRY:

Following a nice four day weekend it’s always fun to come back to the office to a freshly filed complaint against one of your clients. Said complaint was filed out of state (one in which does NOT have jurisdiction over my client for a host of reasons including Plaintiff having agreed to jurisdiction elsewhere), the “cause of action” (which isn’t really a cause of action in the first place – apparently Plaintiff’s counsel confuses causes of action with remedies) is without legal merit, and counsel called my client a “nominal defendant.” Let’s be real here; there is no “nominal defendant.” ALL defendants (in most cases anyway) will have to extend valuable resources and time to deal with even the most handicapped complaint by filing motions to dismiss for lack of jurisdiction or other defenses.  You can’t paint a rainbow on birdshit and call it a rainbow…no, it’s still birdshit.  You know, just so we are clear…