The Trouble with Photos

massachusetts attorney online friendly convenient affordableI don’t know about you but one of the fun things about owning a business is that I get to look through interesting photos whenever I put together material for my website or social media. There are literally millions of photos online to look at. Really. I just did a Google search for “horse image,” for example, and got 1,990,000,000 results in .52 seconds. I could just download any number of photos for my website and social media accounts, right?

Wait. Whoa. Not so fast. Did you read the viral story about the hipster? Yes, this does connect to your use of online photos. A hipster guy got so mad thinking a journal had used his photo without permission when it reported on a study about hipsters that he threatened to sue the journal. The funny part of the story is that the photo wasn’t him but it confirmed the study results that hipsters tend to conform to a certain look. What’s important for us is the story behind the photo.

The journal had bought the hipster photo from Getty Images. You have may have bought their photos or spent time looking at them in your search for marketing or blog illustrations. The journal’s editor-in-chief contacted Getty, and it had a signed release from the model in the picture. That release was worth its weight in gold because it showed the man who emailed was not in the photo and therefore had no legal action against the journal or Getty.

You hopefully now see where I am going with this and your use of online photos. A lot of people download photos from the Internet, but that viral story illustrations a point you may never have thought about: you should not use these photos on your website or social media unless you or the company you bought them from have a model release. (What about pictures you’ve taken yourself? I will get to that issue in a blog this week, I promise.) Chances are good that you are going to have to pay for high-quality photos that you can use legally. Places like Getty, which has some stunning photos, may be a bit pricey for your budget, although the photos are certainly worth it. Take a look at a site like PixelRockstar. You can get photos for about $1 a picture.

I know that copyright and the use of photos in blogs and for marketing is a huge topic. Stay tuned to my blog this week as I continue to explore how we can use great photos to help people learn about our businesses.

 

 

The Trademark Process

wills trusts estate planningRecently, I have had a lot of people ask me about the trademark registration process.  It can be confusing so this blog will explain the process.

The first thing to know is what can be trademarked. Typical things businesses trademark are the name, logo, or a slogan. But you can trademark other things that identify your business, including a specific color you use on all your packaging. For example, Tiffany has trademarked its signature blue color. A trademark protects your brand so when you are considering trademarking something, you should think about what represents your brand. You can trademark more than one thing. Many businesses have a name and a logo. I suggest that both be trademarked. Unfortunately, with the ease of the Internet, businesses do sometime steal logos. I know of an instance where an equine business had their logo stolen by another business halfway across the country. I also know of a yoga business that had to change its business name after they were sent a cease-and-desist letter. Needless to say, that took a lot of time and money. These are just two examples of the importance of protecting your brand and doing it as soon as you start your business.

The trademark process involves three steps: a search, a legal analysis, and then the actual registration. I do a comprehensive search to see if the name, logo, or slogan  you’ve chosen is available. That includes searching for similar names that might cause the USPTO (United States Patent and Trademark Office) to deny the registration. After I complete the search, I give you a legal analysis.

A legal analysis assesses your trademark’s chance of registration. Not every trademark is accepted by the USPTO, so we need to look at the chances to see if you need to change it up a little bit or if it looks like if it has a good chance of being accepted as is. The USPTO considers 13 factors when trying to decide if there is confusion with another mark that is the same or similar, and I address those factors in my legal analysis. You also have to file your trademark under at least one class. Sometimes your trademark needs to be filed under more than one mark, for example, if you are conducting workshops and selling t-shirts. I provide you with information concerning the relevant classes in which your trademark should be filed, and whether it needs to be filed in more than one class. The legal analysis step is important because if your mark is denied by the USPTO, you will receive an Office Action, which an delay the registration of your mark and may even lead to it not be accepted for registration. There’s never a guarantee that the USPTO will approve a given mark, but at least if you get a legal analysis you can avoid situations in which there are clear conflicts that would result in denial.

estate planning trademark copyrightThe third step is the actual registration process, which is entirely electronic. Once your trademark application has been prepared and submitted, it takes about a year to get approval. You can use the trademark in the meantime with ™ after the trademark. The entire process to get approval can take a year.  If the USPTO has a problem with the trademark, it will issue an Office Action. You have a chance to address the issue and then see if the USPTO will issue your trademark. Once your trademark is approved, you may use the registered symbol, ®, after your trademark.

If you would like to protect your brand with a trademark, contact me today so I can get the process started for you!

 

Immoral or Scandalous Trademarks

Did you know that not every trademark is accepted for registration? For example, the United States Patent and Trademark Office (USPTO) will not register a mark that it considers “immoral” or “scandalous.” Of course, times have changed since that statutory provision took effect more than one hundred years ago. What do we do now about words that might have offended then but have become practically common vernacular now?

Last week, the US Supreme Court agreed to hear oral arguments concerning the issue of the mark FUCT, which designer Mark Brunetti has been trying to register for more than a decade. After being denied the mark, he received a favorable lower court ruling. But both he and the USPTO asked the Supreme Court to consider the case. Oral arguments will most likely take place this spring, and the decision will be issued several months after that. I will follow up on the case when the decision is handed down.

In an interesting side note, the Court generally does not like profanity at oral argument. It is unknown whether counsel for either side will say the name of the mark or simply allude to it during argument.