Legal Q & A for Creative Entrepreneurs - Brittany Ratelle - Live IG replay

Hello everyone, Brittany Ratelle here. I'm gonna try to jump on Facebook too to get on and go live as well. But happy Wednesday. Sorry it's been a few weeks. So hi everybody. But with holidays, I'm sure I just kind of got off track and was spending time with my family. But anyway, I want to get back. Back in the saddle. I'm trying to— still trying to play around with times in terms of what's the best time to jump on because I'm rearranging my childcare. So I'm still experimenting. So thanks for your patience. But as I will let you know when I know for sure when the next one will be, and I'll post it on my Instagram. So thanks so much for joining me today. I'll do a brief introduction and then get into questions because I got a couple beforehand, and so we'll get into that. My name is Brittany Ratelle, and I am an attorney licensed here in Utah, and I help out creative entrepreneurs with their businesses. So I, um, hi, thanks. So, um, so put in the comments if you want to tell me where you're from and what your business is, um, because I love knowing more about who's jumping on here and how I can help you guys and know about more of your business. Um, and but a lot of the clients I help run creative businesses. Some have, are service-based, some are product-based, some are completely online in that space. Um, and a lot of them have very similar concerns in terms of They want help with their strategy and formalizing their businesses, protecting relationships, protecting their content and their brands and what they're offering, and making sure that as they move forward that all that's in line. So that's kind of what I help with, and I try to get on every week and do these. I take— I took a break over the holidays, but I try to jump on every week and do a little free Q&A, question and answer, so that you have a space to get some of your business questions answered. I will give my disclaimer that while I am a business attorney— oh, and by the way, don't mind the mess. You can see on my Facebook the mess behind me, but that's my office. That's real life. But while I'm an attorney, I'm not your attorney unless you want me to be. So please don't consider this official legal advice or an attorney-client relationship. Anything I talk about today is just for education or informational purposes only. So If you have any questions about what I've talked about or what I mean for your specific fact scenario, your specific business, please reach out to an attorney licensed in your jurisdiction in the area of practice that we talk about. I'm happy to give some recommendations or referrals if I can, or some tips in finding a good attorney and a good business attorney who could help you with what you have questions about. With that, I'm going to go ahead and answer the question that I had that came up. Um, and the one that someone submitted beforehand was, um, Brittany Ratelle, um, what's legally too close to name a business? We're trying to name something and did an online search and there's a business like in Ireland, a foreign business with a similar name. Um, we're just— she was just wondering kind of the ramifications of naming something that's the same as a foreign company, um, and what that means in terms of when you're trying to pick your business name. And this is a great question because this is something that I think all too often people think about really far down in their business growth when they've really invested a lot in their brand, in marketing, and, you know, they have the fancy business cards and the t-shirts and, you know, signage and, you know, put all this effort and money into their brand and then start thinking about, wait, is this something I can actually protect and is this too close to something else? So if it's a foreign company, I'm usually not too concerned. I would really only be concerned if your growth strategy involved being an international company. You know, if you were planning on launching a product, a startup, and you're really— your dream was that it would be a global brand and that you'd want to be able to protect it intellectual property-wise in other countries, then maybe, you know, you might not want to directly compete with another company. If that's not in your vision, or, you know, not at least for a long, long time down the road, then I wouldn't be worried about a foreign company. In terms of a company in another state, state, what you want to think about is, are they in a similar field? Meaning like, are they in a similar industry or offering a similar product? So, because there are people who can have the same brand and actually can even trademark their same brand, you know, there's a couple, you know, I'm sure there's an Apple company that has apple in it and then there's obviously Apple the tech company. But Apple the tech company is very clear that they're offering a different product than someone who actually sells an apple, you know, Apple Company, as in like the produce, the fruit. And so because they can distinguish it and there's— it's not going to be a likelihood of confusion for the consumer, they're able to trademark that in that particular sphere. So, for example, if you have a name of, you know, Fizzle and Pop, and that's what, you know, and it's a clothing company, and that's your fun name that you found, maybe what you probably started with is did a Google search, and that's a good place to start in terms of looking online. Is there anyone else in that sphere who's using that name? Um, and so maybe you don't find anyone there. Good. That's a great first step. The next step I would take is to look in your state where you're planning on registering your business and see, is there anyone in your state that has that same name? Um, and if not in your same state, then that's great too. That's a good, like, step number 2. The third step I would take is looking in the trademark database, and this is called the TESS system. So it's a Trademark Electronic Search System. And you want to look in there to see, is there someone in this database that has actually trademarked Fizzle and Pop or something close to it? So we want to be careful about the trademark searches that they don't actually have to have the exact same words. If it's something that sounds similar, even phonetically, if it's something that's pronounced similar, or if it's Fizzles Pop, or maybe it's Fizzling Pop, or you know what I'm talking about, something that's close enough, that sounds close enough that it'd be confusing, especially if they're in the same space. Then it might be hard to trademark. So it wouldn't be what we would call a strong trademark. And you want a strong trademark. That's ideal. You want to pick something, and the strongest trademarks are words that you make up on your own. That's why you have words like Google and Vivint and, you know, what's another good one, you know, Omniture. These are names that people made up that they are kind of reminiscent of real words and kind of a brand identity and maybe an idea. But people— it's not a word that you find in the dictionary. And because of that, it's a lot easier and it's a lot stronger to trademark because, um, it's going to be likely that someone else does not come up the exact word, especially in your same class of goods or your same category industry. So hopefully, um, that answers your question in terms of naming and kind of what you want to think about there and strategy. Um, but it's a great question because a lot of people think that if you can find the domain name and the social media like handle for it, then like, oh, it's fine, I'm gonna be good to go. And while those are important parts of your search, those are not the end-all to be-all part of your search. That should just be the first, one of the first steps that you take in terms of branding and investing in the brand name of your business. 'Cause just because you can get the domain name does not mean that that's a name that you can protect, that you can trademark, and that can really grow depending on what you wanna do with your business. So hopefully that answers that question. The next question I got was, what are the legalities of using another company's plain, like a white background or no background product photo. And the legalities for that, kind of regardless of what the background is, anytime you're using someone's photo, when you take a picture, the automatic copyright is with the person who takes the picture, with the photographer, unless you've taken other steps to splice out and divvy up what the copyright is. And in any kind of intellectual property, we talk about a bundle of sticks. And so if you take a picture of something, meaning if you take a product photo of a pacifier, um, whoever takes that product photo is usually the copyright owner. Now most companies, obviously they hire a photographer to take that product photo and then they say, that's part of it, I own that copyright. So say I'm a brand who manufactures and sells pacifiers, um, I probably hire someone to take the product photo. Now I own that photo because that's part of my brand because we probably had that in that contract. If you didn't have a contract, that's something else we need to talk about because that's a, that's a big mistake, um, is to not make it clear who owns the ultimate copyrights and into photography, especially if it's something as important as a product photo. Um, so if you're a brand who now owns that and you put it up on your social media or it's in your product description or on your shop or some other way it's available to the public, um, the, uh, the assumption is that you are not okay with people, um, sharing that photo. Um, It's tricky because in this online world most people think that sharing is caring and of course someone would want me to share a photo of theirs and how could that hurt them, especially if I'm giving credit and a shout out and I'm not claiming that it's mine. So a lot of people ask, you know, do I really have to ask permission? And technically the answer is yes. Anytime you use a photo that you do not have the ownership of, that you don't have clearance to use, the rights to use, however you want to phrase it, that doesn't belong to you, the copyright, you need to ask written permission. That doesn't mean you have to send a long, like, Civil War-esque email, you know, "Dear company, I would like to know if I can use—" you know, a direct message is fine, an email is fine, email is probably better because it's easier to save and archive if there was ever an issue. You could say, "Look, you gave me permission, here's your email right here." But if you do direct message, just screenshot it, keep it in your business files somewhere on your phone, keep it in your notes in your Dropbox or something. But you want to get written permission from someone. That's really ideal. And you also want to give credit to someone. That's actually usually a common courtesy and a professional thing to do is to give credit to the brand and also to give credit to the photographer if you know or you can find out who that is. So those would be the steps that I would take in terms of if you want to use someone else's picture. So I know that kind of seems like a lot of work and you're like, well, I'm just, you know, I'm helping these people out. 'Can I just throw it up there?' And the answer is, yeah, you probably can, but you're always taking a risk that there could be a problem, that a company wouldn't like the way that you're using their photo. They maybe wouldn't like the endorsement or the implied endorsement, and really the burden could fall with them in terms of if you haven't made it clear if there's any relationship between you two, you could actually kind of have an FTC issue. And FTC disclosures mean that if there's any kind of commercial relationship between an influencer or third party and a business, that you need to disclose what that is. So if you have sponsored content of any kind, or you've received free product or discount code or comped airline or hotel stay or anything, that you need to disclose that relationship. You need to disclose that when you're talking about a product. Obviously when you're talking about your own product on your own product page, you know, if I'm selling— go back to my Fizzle and Pop shirts— on Fizzle and Pop Instagram page, that's okay. People know that that's a commercial account and they understand that that's what I'm— my speech is going to involve me as the owner of that brand. What's not clear is if, you know, Frolic and Fun, you know, Instagram blogger talks about like, oh my gosh, I just found the cutest shirts, these are amazing, they're so soft, and they fit me just right, a boyfriend style, or she puts out a cute flat lay. What's not as clear is that, does she honestly just like these shirts and she's just talking about them as like a favorite find on her Friday, or did she get these shirts for free, or is there a relationship where she gets, you know, 10% of all t-shirt sales? So that's what you need to disclose, is any of that stuff that's going on. So, and you could do that by using clear hashtags as long as they're not buried. You can use that in using natural language. #ad is one that the FTC has said that it's very clear, or ad. You know, things like #collaboration or #thanks to or #partnership with are not as clear. And if you have more questions about this specific stuff, about FTC disclosures, I have a free course on my website at BrittanyRatelle.com. It's free, it's an hour long, that's all it takes you. You can, you know, split it up in a couple different chunks if you want to, and it's a video course that walks you through How do you disclose? How do you do it correctly and make sure that you're covering your butt? Okay, your CYA. If you are a brand or if you're an influencer of any kind, if you do any kind of content creation for other people, um, and you want to make sure that you are doing correct disclosures in the different platforms, um, meaning do— should I do audio? Do I need to do a visual? Does something need to come up on the screen? How does that look like? I give examples and walk you through all those steps. So please go sign up for that if you're interested., and that could be super helpful to you. Okay, those are the two questions that I got beforehand, but I'm gonna open it up for a few more minutes if anyone else has any other questions that I can answer. You can just drop them in the comments, and if I can help you, I'd be happy to. Um, so I hope everyone had a great holiday. I know I had a great holiday. I hope everyone, if you're not signed up for my newsletter, my podcast, those are also on my website as well, BrittanyRatelle.com. Um, and they can help you out and answer a lot of other similar stuff I'm talking about. Okay, Cecilia says, if I purchase a custom logo made from Etsy for my website I'm building, do I need to get it trademarked, even if it might be for too long? Um, so you don't— trademark is usually a little bit more expensive investment, so if you don't plan on using it too long or you don't plan on it being something that you grow in your business, a big part of your brand, um, it might not be worth it to trademark. So I, I usually quote most people kind of a basic trademark package is around $1,000 for like one class of goods. So you can do it online for cheaper, but I, there, I have a lot of people who have problems with that because it doesn't involve a really good search and it doesn't involve office action replies. Meaning if the Trademark Office comes back and says, we have a question about this, this, and this, um, you don't know how to respond to it or you don't respond to it in the right way, and then you've just wasted money and the claim dies., and all those filing fees just get wasted. So, um, what I would say is if you are buying something over Etsy, meaning like someone is doing it for work over you for Etsy, I would make sure that you have some sort of agreement or contract in writing about that you now own the rights to this and that they can't sell the same logo to someone else. Okay. Um, because that's the only issue I see sometimes when people use discount, you know, graphic designers or someone online, they use like Fiverr or, um, you know, a freelance kind of graphic design website, and I just, I would want to make sure that it's really clear that you are paying them for this specific design, that you now own the rights to this design, and they are no longer able to use this design for anything else. So, and if you have, if you want more questions, you can email me about that. That's something that you'd like help with writing, I could probably give you a good deal on that anyway. That is something I would just keep in mind. I know people who found people because they can get a great deal on website designers or graphic design and then have found out after the fact, you know, sometimes even months, months later, that that website, that design was not original and now they can't use it because someone else is now going after them and claiming copyright infringement saying, "Look, that's my exact thing," and they could be right. If someone else has taken steps to trademark it, now you could be liable for damages. So you don't want that to happen. So, you know, do a little research on your designer and make sure you guys are on the same page. Okay. Crunchy Mamas asked, can I put my logo on any brand of shirt or only apparel bought from dealers? Is that too random? Yeah, you can put your logo on any kind of shirt. You, I mean, you could get one, like if you go to Forever 21 and buy a cheap t-shirt, like you could put your logo on that on top of it. So there's, doesn't have to be a specific kind of like wholesale dealer in terms of t-shirt. Um, I imagine you probably would get a better deal that way, but, um, I guess the question is if there's already some sort of artwork on it, could you like add your logo to it? And I don't see a problem with that. Um, I guess the only question would be if, if you are, if it's licensed material and now you're reselling it, but, um, I think you should be. The first sale doctrine usually says that you can take things and kind of recycle them, um, and license um, the only, the only caveat I would say with that is if it is some sort of license, like if it's a Mickey Mouse shirt, um, you might have to be careful in terms of how you're advertising that. You probably can't sell that as like, oh, Mickey Mouse Disney shirt or something, because, um, they usually own the rights, especially a big company like Disney. I know this comes up a lot for people who run Etsy shops that have like sports apparel, you know. If they have a Ravens hoodie, they have to be really careful about how they market in terms of using that language because You know, if you own the Ravens, all of that content is licensed in terms of their logo, their artwork, their colors sometimes. So, um, if that's an issue, I would just say be careful about that. You might need to look into that a little bit more. So, um, okay. Sometimes I find a great deal and was worried about that. Oh, it'd be a blank slate shirt, then yeah, you should be fine. If you find a great deal, like, you can totally resell anything that you find, t-shirts. So no, you don't have to— hasn't this been— have to be from a dealer. You don't have to find it on Alibaba or something if you If you find t-shirts, go for it and make them yours. So best of luck. Okay. Um, let me see. Do we have any other questions? I probably have like 2 more minutes, so if someone else has a quick question that they want to jump on, I'm happy to answer. Oh yeah, I just realized I never actually went live on Facebook. So it says click here to begin the live broadcast. Whoops. Oh well for Facebook. So I don't get on Facebook that much anymore. I only get on for business stuff. Do you guys get on Facebook? I just, something had to give. And sorry, it was Facebook. Like, I know, you know, we've had a long-term relationship since college, but yeah, sometimes you just, you gotta move on, I think. So, okay. I'm gonna give you like 30 more seconds if anyone else has any other questions to jump on. Otherwise, we'll wrap it up today. I will let you know that I post these on my Facebook is my bread and butter. Okay, well awesome, that's great. Yeah, you don't use Facebook either? I just, it's just too much of a stream of consciousness, you know, for people. I use groups on Facebook, I do think those are really helpful. So I belong to a lot of groups, but like, in terms of going on and actually like reading my feed, I just don't do that anymore. So, yeah, it's just not my deal. So, I'm gonna post this to my account, so if you wanna watch it again, if you wanna send it to a friend, if you think that there's something else Yeah, too much to sort through, exactly. If there's something else that you think could be useful for a friend, please pass it on. I, you know, I've been working as an attorney in this field for a few years and helping businesses, but I will admit I am an amateur legal marketer, so I'm still learning in terms of how to find my people, you people, and all your friends who are business owners in terms of helping you out. And I'm really trying to make myself available as a resource, so anything you could do to pass the word along, I'd really appreciate it. I'll tell you about my newsletter again if you're interested. It's BrittanyRatelle.com/newsletter. I have a free, you know, legal checklist guide that you can download when you sign up to be on my newsletter that kind of walks you through some of the bird's-eye view of things you should be thinking about in terms of setting up your business legally. I also have a podcast, so you can find that BrittanyRatelle.com/podcast called Law and Wit. Those episodes come out on Friday, and it's, um, the podcast is all about Creative Counsel for Entrepreneurs. So I have a mix of interviews with guests, people who are experts in different creative entrepreneur elements, people who have built their own businesses or otherwise work in advising businesses in the kind of creative online field. And then I put some, I drop some legal kind of tips and tricks in there for you too. So I can do kind of a mix of that. And then my newsletter comes out every week and I try not to waste your time. I try to make it funny and entertaining. And bite-sized, little digestible content for you. Because I get that you're busy, I'm busy, I'm a mom of 4, I'm a nap time attorney, and I don't have time to waste your time. So, I don't take that lightly, your time either. So, thanks so much for being here. I really appreciate it. And hope you guys have a great week. And I'll let you know next week when I'll pop on. It'll probably either be Monday or Wednesday. I'll have to take a look at my schedule and see what works. So, anyway, have a great week and thanks so much for being here. Bye.