Cybercriminals and new scams

As an equine horse professional and business owner in the digital age, you have to be careful of scams that happen in your business dealings online. For example, we all know to be careful when buying a horse in person. Is the horse lame? Is the seller being honest about the horse’s training? But you need to also consider email scams when doing business. The latest email scam is one that could easily hit the horse world and hit it hard.

According to a recent NPR story, cybercriminals are engaging in new email scams. These scams involve someone hacking into an email conversation. They monitor the conversations and then wait for an opportunity. When they see one, they pretend to be a person involved in the conversation. The opportunity usually involves a monetary transaction. The scammer provides information concerning where to send the money, and before the person knows it, they have paid the scammer instead of the legitimate party

Here is how the scam would work in the horse world. You find a horse advertised online that you buy for yourself or a client. You and the seller wind up negotiating the sale of the horse via email. Unbeknownst to you, the cybercriminal hacks into your email conversation. He or she waits until you are about to send the money and then pretends to be the seller. The directions you get for the payment are coming from the cybercriminal, not the seller. You send the money, thinking the seller is all set. When you check with the seller to confirm receipt of the money, you see that the money has gone to the cybercriminal and is probably out of the country and irretrievable.

The best way to avoid such a scam is to call the seller to discuss payment and to get payment instructions. Any conversation that might lead to a scammer getting confidential information or involving bank information should be conducted by telephone. Having actual discussions can lead to a greater level of security for your business transactions.

 

 

Brand Your Company

You know that the reputation of your business can mean the difference because success and failure. In this blog entry, I am going to explain how registering your trademark is an important way to protect your professional reputation. If you don’t protect your brand, someone can use your name, logo, or slogan, and you can’t stop them. Someone could also use your name, logo, or slogan and hurt your business by doing disreputable business.

Two Trainers, One Stolen Logo

I once knew someone – we’ll call her Sally – who moved cross country after riding with a trainer – we’ll call her Mary – for years in Florida. Sally started to search for a new riding horse in her new home. She came across a horse on a horse sales website that interested her and went to the listed website to learn more about the horse and the person selling the horse. She was shocked at what she found. On the main page of the website was the logo for Mary’s barn! It was flipped, as if appearing in a mirror, but it was clearly the same logo. Sally knew that Mary’s brother had hand drawn the logo several years before. She immediately contacted Mary to tell her about the stolen logo. Mary was a highly-successful trainer so she said she wasn’t worried about it. She said that no one would confuse her training services with the trainer who had stolen the logo. Besides, Mary lived all the way across the country. Sally never pursued the horse that led her to the website. She figured if that trainer would steal a logo, what else would she do that was dishonest.

Hurting Your Business

Mary didn’t think there was a problem with the other trainer using her logo because Mary was a higher-level and more famous trainer, plus she lived across the country. But such thinking can leave a business open to problems. What if Mary decided she wanted to expand her training to that area? What if people looking online simply assumed that Mary and the trainer who stole her logo were somehow affiliated and that trainer engaged in deceptive practices? Or was a bad trainer? Or abused the horses under her care? Mary might be losing clients and gaining a bad reputation without even knowing it.

Trademark Registration

Mary could have prevented these problems by registering the logo with United States Patent and Trademark Office (USPTO). The USPTO defines a trademark as a “word, phrase, symbol or design, or a combination of words, phrases, symbols, or designs, that identifies and distinguishes the source of the goods of one party from those of others.” If Mary had a registered trademark, then she could have had an attorney force the trainer to take it off her website, either through a cease-and-desist letter or a lawsuit.

You may have heard that you should brand your company. Branding your company is a way of identifying your business and setting you apart from your competition. Registering a trademark is an important part of branding. Why? Because one of the main issues the USPTO considers when determining if a trademark should be granted is whether it creates confusion in the marketplace. Let’s say you want to start a fast food restaurant and call it McRonald’s. Your chances of getting that trademark approved are slim to none Why? Because McDonald’s, the famous fast-food restaurant, already has that name trademarked. Allowing for two similar trademarks in the same business would cause confusion in the marketplace.

What happens if you don’t register your trademark? Well, someone else could register the same or similar name. That may not seem like a big deal but think of this. Once someone has a registered trademark, they can enforce it by issuing cease-and-desist letters to companies that are using their trademark. They can even take that company to court. Let’s say you are using a certain business name and another company trademarks it. Even if you can avoid court, you will have to rebrand. What does that mean? You have to choose a new name and reform your company with that new name. You have to change all of your merchandise to the new name. You have to let your customers and clients know. It can be a very expensive and time-consuming endeavor, as you might well imagine.

Save yourself the time, money, and headache. Contact me today so I can talk to you about the registration process help you protect your brand.

 

 

An Office Action

Many people are under the mistaken impression that once they file their trademark registration for their equine business, it is automatically approved by the United States Patent and Trademark Office (USPTO). That is not the case. The USPTO can deny the trademark for many different reasons. Some are simple and easy to fix, and some are substantive. What is an office action, and what should you do when you get one?

What is an Office Action?

The USPTO considers many factors when determining whether a trademark should be approved for registration. The foundation of those factors is that the trademark must not cause confusion in the marketplace. If the USPTO has a problem with the trademark application, anything from a description it feels needs to be corrected to the likelihood that the trademark will cause confusion the marketplace because of another trademark already registered, it will issue an office action. An office action is the USPTO’s refusal to register the trademark. In this document, the examining attorney handling the matter will explain the reasons for the refusal. The applicant has six (6) months to respond to the office action.

Simple Office Action

You may receive a simple office action, which means that something relatively minor has to be corrected. This might mean you have chosen the wrong class for your trademark, an additional class is needed, or even something that may seem minor, such as a comma in the wrong place. It may not seem like a big deal to you, but it is to the USPTO examining attorney. The correction must be made or the trademark will not be registered.

Substantive Office Action

A substantive office action shows that the examining attorney at the USPTO has a real problem with your trademark. These kind of office actions should definitely be handled by a trademark attorney because a trademark attorney is familiar with the process and appropriate responses. Many substantive office actions concern the issue of confusion in the marketplace, which is called a 2d refusal. A response to this type of office action requires knowledge of the thirteen (13) factors considered by the USPTO, called the DuPont Factors, as well as relevant case law. A response to this type of office action is similar to going into court to make an argument, only it is written and is submitted electronically. The first thing the trademark attorney will do is analyze the possibility of overcoming this kind of refusal. Unfortunately, it’s not always possible to get a trademark approved. A trademark attorney will let you know your chances and then discuss how you would like to proceed. Although you have six (6) months to file an answer to an office action, you should contact an attorney as soon as possible because it may take awhile to craft an appropriate argument.

If you have received an office action, please contact me to talk about responding to the action.

 

Supreme Court Allows “Immoral” or “Scandalous” Trademarks

Back in January, I wrote a blog post about the US Supreme Court agreeing to hear a case concerning “immoral” or “scandalous” trademarks. The case concerned the attempt by Mark Brunetti to trademark the word FUCT. This summer, the Supreme Court ruled in a 6-3 decision that the law denying such marks violates the First Amendment because “it disfavors certain ideas.” In its decision, the Court cited certain marks that were allowed, such as a game called “Praise the Lord,” while other marks, such as “Bong Hits for Jesus” were denied.

The Court left open the possibility that Congress might narrow the law so that certain terms are still not approved. But absent Congress doing so, it could become a free-for-all at the United States Patent and Trademark Office concerning what marks are submitted and approved with terms that were formerly denied.

And, in case you were wondering, the Justices apparently took great care during the hearing “not to use the FUCT name out loud.”

Contact me today if you want to trademark your brand!

This blog post is for educational purposes only.  It does not create an attorney-client relationship.  Seek an attorney’s advice for your specific situation. 

The Trouble with Photos

Mustang Aubrey equine law horse law contracts estate planning trademarkI don’t know about you but one of the fun things about owning a horse 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 with your equine business. 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 another blog post, 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. In case you’re wondering, the picture I used for this post is one I took of Aubrey, my sorrel Mustang.

I know that copyright and the use of photos in blogs and for marketing is a huge topic. Stay tuned to my blog as I continue to explore how we can use great photos to help people learn about our equine businesses. Feel free to contact me if you need a release to use photos or if you want to register the copyright of your photo(s).