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!

 

Equine Estate Planning

horse law attorneyHow will your horse, your horse property, and even your horse business be taken care of if you are ever incapacitated or after your death?

I know that these are not pleasant topics to read about. We all want to think that we will never get badly injured, but we know it happens. We’ve all read about the tragic riding accidents suffered by Christopher Reeves and Courtney King Dye. You may have also seen the various Facebook posts asking for help to care for a horse whose owner was injured in an accident and didn’t have any system in place to pay for horse care. These kinds of situations can be addressed before they ever happen. Estate planning documents that take into consideration your equine lifestyle can give you peace of mind that your horse, as well as property and business, are will be taken care of in the case of incapacitation or death. First, let’s look at estate planning documents and then I’ll talk about how they apply to horse interests.

As you will see, there many considerations with your estate planning if you are involved with horses. There are also many options that allow you to create a plan that works for your individual needs, as well as the needs of your horse, property, and business. As a horse person and an estate planning attorney, I can talk with you about your various options so that you have an equine estate plan that meets your specific needs and provides you peace of mind about the care of your horse, property, and business.

Wills and Trusts

wills trusts equine law bridle saddle pad To provide for the distribution of your estate after your death, you should have a will or trust. If you own anything — like a car, house, or horse tack — then you have an estate. Under Massachusetts law, horses are considered property so they are handled just like any other kind of property. If you do not plan for how you want that estate to be distributed, then you will die intestate, and your items will be distributed according to the state intestacy laws.

Everyone has heard of a will when it comes to estate planning. A will is a legal document that allows you to leave property to certain individuals and organizations. What you may not know is that a will does not automatically give your estate away the moment you die. It must go through probate, which means it is filed with the court and becomes a public document that can be seen by anyone who looks up the file. Probate is a process that takes anywhere from 9 months to several years, depending on the complexity of the estate and any challenges to the will. It usually costs several thousand dollars to have an estate probated. A will usually requires the payment of estate and inheritance taxes. If you haven’t made other plans for the probate period, your assets are not available to pay for horse needs, such as board, feed, and farrier care.

trust estate planning equineA trust is another estate planning vehicle that allows you to leave your estate to certain individuals or organizations. A trust does not go through probate so it is effective as soon as you die. It is also not a public document. Oftentimes, it is used as a way to defer and avoid certain taxes. During your lifetime, you place your estate in the trust. As trustee of the trust, you still have full control over the items as if you owned them. One advantage of the trust is that funds to care for your horse are  available automatically because it does not go through probate.

There are several factors to consider when deciding if you want a will or trust as your main estate planning vehicle. I go over those considerations when I counsel my clients on what would work best for their individual situation.

Additional estate planning documents

There are also several other documents you should have as a part of your estate plan. These documents are very important in the case of incapacitation.

Durable Power of Attorney:  This document allows you to appoint an agent to handle your financial and other affairs if you become incapacitated.

Health Care Proxy:  This document allows someone you have designated to make medical decisions for you should be you become unable to do so.

Advance Directive:  Sometimes called a living will, it is a guide for your agent listed on your health care proxy concerning what health measures you want taken should you become unable to make those decisions for yourself.

HIPAA Release:  This document allows your medical information to be released to individuals or organizations you list in the release.

Horse Trusts

horse trust care feedEveryone with a horse should have a horse trust in addition to the other estate planning documents. You can have a horse trust even if no other property is in a trust. Massachusetts law provided for horse trusts beginning in 2011.  The law allows you to create a trust to take care of your horse or any other animal in the event you are incapacitated. The trust can terminate when you are able to take care of the animal again or at the animal’s death.

A horse trust gives you the ability to include specific instructions concerning the care of your horse. You can specify basic care such as where your horse is stabled, how it should be fed, and additional care, such as farrier and vet visits. You can name the person who will take care of your horse, which means you can make sure the person you want is taking care of your horse. You can even stipulate specific things such as how you want the horse to be blanketed and special treats for your horse. One of the biggest advantages to a horse trust is that it takes effect at the moment of incapacitation or death. This means you don’t have to worry that your horse will be neglected should anything happen to you.

Horse Property

horse property barn wills trustsUnlike having a house, a horse property provides you with additional considerations when it comes to your estate plan. As with a house, you may stipulate whether your horse property is sold after your death or whether you leave it to someone. You may also want to ensure that the property remains available for a horse lover to purchase at some time in the future and not turned into a shopping mall or housing development. To do so, you can have a conservation easement put on the property. A conservation easement allows you to determine limitations on future development, and it may also lead to some positive tax consequences. One negative to these kinds of easements is that it may lower the property value if the property is sold at some point.

Horse Business

trail ride horse equine law attorney older riderIf you are a horse professional, you want to decide what will happen to your business when you die. One option is to simply let the business end. But if you want the business to continue, you should consider how you want it to operate without you. This is called succession planning. Some of the considerations include who will own and manage the business as well as the development and training of successive owners. There are several different ways to create a succession plan, some of which involve trusts in order to reduce taxes and avoid probate.

If you would like to discuss any of the options you have just read about, contact me today.