Brittany Ratelle - Online Entrepreneur Legal Q&A Oct 2, 2017

Hi, Brittany Ratelle here with our little Monday legal Q&A. I'm gonna give it a few minutes to see if there's anyone else who wants to join us. I know these are— sometimes it's hard to catch people on Mondays. I know everyone's kind of trying to recover from the weekend and get their head in the game. And I know this particular Monday morning is really challenging because a lot of us woke up to the really tragic, tragic news out of Las Vegas this morning, which is really hard. So I want to acknowledge that and just say that I'm here and I only have probably a little shortened time today because my carpool schedule got mixed around, had to switch, and so I've got my kiddos here not napping. Hi, thanks for joining me. But anyway, the purpose of doing these on Monday is to kind of give a little forum, a quick area for people to be able to ask questions that they might have about their small businesses. So whatever stage you might be in growing or building your small business, I'm here to answer any questions that you might have. While I'm an attorney licensed here in Utah, I'm not your attorney unless you want me to be, and unless we do something else to set that relationship up. So just to clarify and get that disclaimer out in the beginning, but if you have any questions that I can, that I can answer in terms of giving you general information and for your own education and enlightenment, then I'm happy to help. So go ahead and put anything in the comments if there's any questions that you'd like me to address. So I'll start off saying that yesterday I was checking up on a Facebook group that I was part of, and someone had voiced the question. They were interested because they were starting a new podcast, and, and they the name that they were interested in for their new podcast was also the name of a video game. And their question was, is that okay for me to use the name of a podcast as it was the same name as an existing video game? So, and lots of the group members chimed in before me and I really agree with most of what they said, which is that short answer is probably not a good idea. And here's why. First of all, even if they, whatever person or company has licensed or started started this video game. Even if they haven't taken the steps to copyright or trademark that name, it's likely that they plan on doing that, or maybe they're in the beginning stages of that. While you can go online anytime and do a search for trademarks, you can go to the United States Patent and Trade Office or the Copyright Office and do a search for what trademarks are already— have already been registered and already filed. That doesn't really give you a good idea of people who aren't in that process yet, who hasn't formally filed, and yet they're using it in commerce. And what can happen is that if you have a product or a username of something and someone else is, and you, even if you are reaching the Patent Office at the same time or filing very close, even if you maybe say Company B beats Company A to the office, it's possible that whoever company that was actually using that information, using that name, using that trademark, using in commerce, would have prior rights to it. So I always advise my clients, when you're in the beginning stages of branding and marketing and brainstorming about what you want to name something that's going to be a product that you're going to want to invest some time and money in, especially if it's something launching like a podcast, if it's going to be a domain name, if it's going to be the name of your company, something that you aren't sure exactly where now, where it might take you in terms of vision and where you might expand. Maybe you're in this industry right now selling this product, but who knows where you might be down the road. Um, to give you the maximum flexibility, it's really a smart idea to, to make sure that there's not anything that conflicts it, especially in the exact same space. Um, now a podcast is a little different from a video game, so it's likely that a consumer wouldn't be confused by it, but is it a great idea? No. So that's the advice I gave, um, to this individual. And, and, and what I said is, um, because if you are using that name that someone else is, it also comes to the question of why, why couldn't you be more creative and find a different way to express it? So if you're picking something simply because it's already in being used in commerce by someone else and they're already doing a lot of branding and efforting— efforts to get that out there, out into population to sell and market things particular to that name, then it's likely that you are trying to kind of poach on those efforts. Otherwise, why would you pick that exact same thing? You know, you are banking on the fact that people are going to draw references, and when they see that, you know, when they see "Just Do It," they are going to think of Nike. And, you know, Nike is in a whole different ballgame because they have obviously been around so long that they have taken steps to protect all of their intellectual property on all levels. You know, their marks, their slogans, any of their new lines that come out, any of their products have already all been protected. But that just kind of gives you a bird's-eye view, an example of something you need to be thinking about when you are at that step of the business creation idea brainstorming process. So part of that should be in doing some good Google research and making sure that there's not something else that's being used in that space. And then getting people's reactions from friends and family, knowing that you— there's a fine line between being creative and showing something that's important to your brand that gives it life and energy and connotes whatever it is that you're trying to sell in market, but that also is something that you can protect and that you can actually have rights to. To. So anyway, there's just something to kind of get us going. Did anyone else who joined have any other questions or issues that they wanted to— they wanted some insight on today? I'll give you a minute to think. If you have anything, you can put it in the comment box right here. So I'm trying to think of any other questions that I've gotten recently that have come come up. Let's see, one I got from someone on email was, oh, was how to handle if someone doesn't want to do a contract for business, how should you broach that? And my answer to them was, if someone doesn't want to have a written contract that you're doing business with, you probably should just let them go. Because really, Even for people who quote-unquote are fine with handshake deals, who, you know, they're a good business person, they, you know, I trust them, they're a friend, they're a close confidant, all the more reason to protect the relationship. So, and if you really value that relationship, then it's good to memorialize what your expectations are in writing. So, and really neither of you in that transaction should be afraid or should really have any reservations about that process because really in drafting a good contract. And it could be a very simple contract in writing. I'm not saying it has to be extensive in terms of legalese. You know, there are some things, important things, that I think should be in there as an attorney to make sure that you're covering all your bases. But if a person, if someone has hesitations and doesn't even want to go through that kind of formalization in the business process, I think that's kind of a red flag that they're not taking their business seriously and not taking you seriously and wanting to make sure that you've hammered out everything that needs to happen in the business relationship for both of you to meet each other's needs, to work forward, and then to have a way to end the project whenever that project ends. So I was helping someone else in a different Facebook group. I'm on a lot of Facebook groups, and they were— it was a group that's specific to graphic designers, and they were talking about how challenging it is when you're a graphic designer that you— and some of them even have contracts, but that they don't spell out in their contracts about how they're going to handle changes. And revisions and the editing process. And this is something that's a little bit more unique to the graphic design process, but not— certainly it affects other businesses too. Any kind of personalized service where you're providing something that you know you're gonna have to have client involvement. So any— I would put this in the same category as like event planning, interior design, architectural, a lot of other services that might overlap in terms of you're gonna have lots of back and forth. And people were lamenting that they've had, you know, edits back and forth that they send the logo and then the client's, well, but don't you think, you know, and then it comes back to, or they want to change a color. And it could be maddening because you're not sure how to handle and you're doing all that work and not really being compensated, especially if you've already set a flat fee beforehand. So that's something you want to think about in terms of what are the pressure points in your tunnel that hurt your business and how can you address those at the forefront in your contract so that people are on the same page in terms of how much back and forth are we gonna have until we're gonna start charging separately for it. Okay, Shushu asks, "How much verification do we need before sending confidential records to clients that are requesting them?" It depends on what type of business you are. I happen to know that Shushu's in the mental healthcare business and wellness field, and if you're sending healthcare records, including things that have to do with— that might have notes, and notes in the context of a driver's license enough. If you're sending healthcare notes or something that have to do with actual things that have been related to a person's care, either physical or mental healthcare, then those would come under HIPAA privacy laws and you need to make sure that you're using some sort of secure channel or encryption. There are different laws that come into play with there. In terms of sending confidential that are requesting a driver's license, you need to make sure you're verifying who you're talking to. So I'll have to check on that exactly what you would need to do to authenticate an individual. But I imagine that you need— we need to have proof that whoever you're sending it to is who they say they are. And certainly any laws that make sure that in the case of a minor that you're sending to someone who's of an age of majority or their legal parent or guardian and would have the ability to be able to sign off and ask about what they're seeing. Um, that one I'm gonna need to look into more specifically in terms of what kind of verification you need, um, where health privacy laws— but HIPAA is a scary thing. That's the Health Information Privacy and Portability Act, um, that was passed a few years ago, and that deals with anyone who's in the healthcare industry who has access to records. So, um, for all of you who've been to a doctor's office and know that you've had to, you know, sign new waivers and disclaimers that talk about who has access to your information, that's where that comes into play. Um, because we— the goal of that legislation and policy is to make it clear that your information is protected, that we recognize this is sensitive, and that it's not gonna be passed on or given to people who it shouldn't be allowed to, that don't have a reason to have it. So, and that you have a right to know when your information is being disclosed and to what parties. So, that's— we have to be careful on that question. So. Same. We have a couple other people joining. So again, I'm Brittany Ratelle, attorney based here in Utah. I'm a nap time attorney. I help small business owners, creatives, influencers, people with online businesses. So I jump on, I try to get on here every Monday midday for just a quick Q&A for anyone who might have some questions. So if you have something you'd like to ask me, go ahead and just put it in the comment box and I'll see if I can answer it. If not, if it's something that might require more research, then I'll maybe have to address it next week, or something that might need a full-blown blog post or guide to it, if it's something that I think might be useful enough for people. But I appreciate you being here. I know that people have a lot of choices with their entertainment and what they can access information during the day, so I appreciate you being here and supporting and wanting to work on your business, because I know that sometimes doing this stuff, the nitty-gritty of business development, especially legal development and legal structure, is not always the most exciting part of your business. But I know that when you can get stuff aligned, when you can give a structure, and especially structure processes and policies in place for your business, that it will save you a lot of stress and hassle. And that the sooner you can do that and just bite the bullet and get that taken care of, the better that you'll feel internally and the better you'll be suited to move forward and have growth and being able to work well with others, whether that's bringing on employees, whether that's working with vendors, you'll be— whether it's, you know, hopefully maybe working with investors or scaling your business someday, you'll be in a better place to do that the more time and attention you can put to putting the structure in place for your business. If you have any questions that you want to ask me, just go ahead and put them in the comment box if you have something. I'll probably just give a few more minutes, I'll say like 5 more minutes, and then I better wrap things up because I have some kids who are not sleeping because my carpool got switched around today, so I had to bump some nap times around as well. So that's, that's the life. That's, that's, you know, hashtag live without pretending. So if you have any questions, go ahead and put them in the comment box. If you have anything, if you're running a small business, either product-based or you have, you sell digital products, or if you're just doing work online and have a question about using media, about products, about contracts, business entity formation. I help a lot of clients with understanding and setting up their businesses. The spoiler there is that if you are in a business and you're making money, you should probably set up and incorporate an LLC. There are some very rare instances where maybe that's not appropriate depending on what your business is and where you're located. I know that in some states— it's a lot more cost prohibitive to do that than others. But luckily, in a state here where I practice, here in Utah, it's really reasonable. Setting up an LLC costs about $78 to register, and it's just $15 a year to re-register and renew that incorporation. So you don't have to keep track of any meeting minutes. It's not like having a corporation. You don't have to hire and have to have finance reports or anything else. And it doesn't change your taxation status. An LLC is pass-through taxation, meaning when you fill out your taxes at the end of the year, all you'll say is that this is an LLC that has pass-through taxation, and you fill out your same 1030 with all your business information like you normally would just being a sole proprietor. So that's a quick overview of LLCs if that's something that you're looking into. And I do help people set those up for them. I help them write their operating agreements and get their articles incorporation setups that they can get their LLC and get official, get their official LLC certificate. And then that's what you would take to the bank to set up your business banking account. So, and business credit card, which honestly it makes it a lot easier. That in itself I think is a selling point because that makes it a whole lot easier to keep track of your business expenses. So if you are bogged down in the bookkeeping, in the accounting, and the finance part of keeping track of your business and are wondering how, how can I make this easier, this seems like people are gaining, or as a way to do that easier, that's, that's the answer. So because once you have a specific card that you know that you can put all your business expenses on, it makes a lot easier to keep track and to have a better and a clearer picture of where your business is at. You know, really look at what are your costs to your business, what are your expenses every month, and what are your sales, what's your revenue coming in, and then being able to gauge where your profit is. So I know that's an issue for people. So, any other questions that you guys have? About copyright, contracts, what documents you need on your website? That's one I get a lot. You need a privacy policy and you need a terms of use. So, sometimes also called terms and conditions. It's the same thing. Or end user license agreement. That's a little bit different. That's usually more for an application. But those two documents every website needs if you collect any information from your users, which I hope you do. I hope you have some sort of opt-in on your website that you're collecting email addresses from people. Or especially if you're selling anything from a website or for some sort of online portal and you're collecting information like addresses, email addresses, credit card information, then you need to have a privacy policy detailing exactly what are you collecting and what are you doing with it. So, and the moral of that story is, is that you can find ones that generate them online, and that's fine as long as you understand what's in that privacy policy. So that would be my only caveat there. So, because whatever it is that you're promising to do, you will be held to that. So, and the FTC has started holding companies accountable enforcing, saying that it's deceptive business practices if you're not doing what you say that you're doing in your privacy policy. So make sure that whatever promises you make, you can actually do. So don't promise that you're not going to sell information if you might sell information, if you might do a collaboration with someone someday and you might share email lists. If that's even a remote possibility, then don't promise that you won't do that. So that's, you know, I would say under-promise, you know, keep low expectations, you know, be, be honest, be authentic, do what you can, but, um, don't over-deliver. That's, that's certainly an area where you want to make sure that you've been thoughtful about where— what you want to do with information and what you see in terms of your growth, in terms of sales and connecting with your audience members, um, and engaging them. So, okay, it's 1:20, so I'm gonna hop off unless there's anything other questions. 5, 4, 3, 2, 1. Okay, I'm gonna hop off. Join me here next week, next Monday, if you have any other questions. And if you can either respond to my post here that I posted today, or I'll do one next week if you have something as you're thinking about this week that comes up in your business that you'd like to have me talk about and address. Just put it in the comments and I'm happy to address it next week. So if there's something that's come up in your business that you have a question about and Please share with any friends that you have that you think it would be useful for. People who are small business owners in the online space, I know that budgets are tight and that you're trying to do the right thing with your business. You're trying to be smart and savvy and protect your investment, but also have a safe growth strategy. And that's what I'm here for, is to help you in that regard and to be an asset where I can to help you try to grow your business so that it can reach the dreams that you want it to. So have a great day everyone, and thanks for joining me. Bye.