It can feel like a veritable alphabet soup out there.
There are seemingly endless options for business symbols designating ownership.
And when you see them popping up on every business name, tagline, logo, website footer, and email sign-off, it can get really confusing about the specific—and legal—purpose for each one.
You want to protect your business, but how do you know which symbol is the right one for you to use?
Because, let’s face it, while protecting your business assets is essential, the last thing you want to do is land yourself in hot water because you misused a symbol that wasn’t meant for you.
**Real quick, first: this post is legal education and information. It’s not business, financial, or legal advice, and it doesn’t create an attorney-client relationship between us.
This is also an attorney communication under Rule 7.2 of the Rules of Professional Conduct of the State Bar of California and Business and Professions Code Sections 6157-6159.2.
Please chat with an attorney in your area to make sure you’re protecting your business.**
What you can–and can’t–protect with business symbols
When we’re dealing with the symbols we’re talking about here, we’re dealing with protection of Intellectual Property (IP) rights.
Intellectual property refers to creations of your mind or exclusive knowledge and can span everything from copyrights, trademarks, patents, and trade secrets.
But that doesn’t mean you can slap a symbol on your intellectual property and assume it’s protected.
Once you understand what intellectual property is, you want to claim your rights to it as quickly as possible. But how do you do that in a way that actually protects you?
While you were previously required to include a copyright notice on your work for it to take effect, it’s now simply recommended to put people on notice that you’re claiming your copyright rights.
Butonce your idea is physically manifested, copyright rights are automatically attached.
And that’s great, but is it enough?
If you’re serious about protecting yourself from copycats and infringers, registration with the United States Copyright Office is required to do things like:
Actually enforce your copyright rights, and
Obtain things like statutory attorney’s fees and statutory damages.
When to use the Trademark (™) and Service Mark (℠) symbols
You know what a trademark is: it’s a unique identifier for goods that allows your customers to know at a glance that the product they’re getting is coming from you.
Did you know that a service mark is the same thing, but for services?
It’s less common to see the SM symbol in use, but you technically wouldn’t use the TM symbol for your online service business (like my law firm providing legal services, for example) the same way you would for, say, soap or hair products.
Both of these marks can be used to indicate you claim common law rights to the work you’re attaching the mark to, even though it isn’t a registered mark.
But while it may act as a deterrent to potential infringers, there’s a limit to how much you can actually do to enforce your rights until your mark is registered with the United States Patent and Trademark Office (USTPO).
The power of ® for registered trademarks
The most comprehensive way to protect your business assets is through federal registration of your mark.
You’ll know if someone has registered their trade or service mark if you see the ® symbol next to something.
Using this symbol without registration is actually a violation of federal law TMEP 906.04.
Even if you have a pending application, US trademark law states that improper use of the federal registration symbol is deliberately misleading and considered fraud.
So you definitely don’t want to use this symbol unless you know you’re allowed to.
Protect your business with the right symbol, and don’t let copycats, infringers, or fraudsters take advantage of you.
In today’s day and age, you have more options to work with an attorney than just the traditional stuffy law firm environment.
Case in point? The virtual law firm.
A virtual law firm has no brick and mortar location but instead attorneys work remotely to deliver services using teleconference and videoconference communication software and cloud-based operations. Virtual law firms are redefining the legal landscape, creating a win-win for attorneys and clients alike.
This set-up results in:
Less overhead costs.
Lean operations means more competitive fee structures with the same high quality legal service so that you don’t have to break the bank to cover your legal bases.
Easier access to an attorney.
This less traditional attorney’s office set-up provides more flexibility to communicate with you around your schedule which ultimately results in better legal service.
Increased confidence.
The atmosphere is less stuffy, formal, and nerve-wracking. And you have confidence in knowing your matter has an attorney’s attention.
Entrepreneurial agility.
While traditional firms are slow to adapt, a virtual practice provides flexibility that allows us to be more agile to keep up with our clients’ needs.
Nicole Cheri Oden Law is a virtual firm, offering trademark law and contract law services. If you are looking to hire a California attorney who can leverage technology while remaining attune to your needs, please schedule a consultation.
This post is legal education and information, not legal, business, or financial advice and it does not create an attorney-client relationship between us. I am a licensed attorney in the State of California, but I am not your attorney unless a written Retainer Agreement exists with Nicole Cheri Oden Law, PC. You should consult an attorney in your area to make sure you’re taking the right steps for you.
This post is an attorney communication under Rule 7.2 of the Rules of Professional Conduct of the State Bar of California and Business and Professions Code Sections 6157-6159.2.
I would venture to guess that you’ve read a contract a time or two if you are an online business owner. And chances are that the provisions toward the end of the contract, the ones that seem to be legal mumbo jumbo, you glossed over at best.
The phrase “boilerplate provisions” refers to the provisions in a contract that a business owner does not pay attention to – and often times they’re the provisions in whatever form agreement they started with. They’re the standardized clauses in a contract that business owners often agree to with little (or no) negotiation.
Many times, a business owner’s boilerplate provisions are inconsistent, provisions are missing, or they could even be detrimental.
I am here to say that the devil is in the details! Contract interpretation or enforcement can hinge on what’s in those boilerplate provisions. And if you fail to spend any time considering boilerplate provisions, you could be hindering your chances of success if a dispute does arise with a client or customer.
This is why I’m a steadfast proponent that business owners work with an attorney to develop solid boilerplate provisions for their contracts and policies. And take the time to sit with the attorney to understand the provisions.
Before I go any further, note that this post is legal education and information, not legal, business, or financial advice and it does not create an attorney-client relationship between us. I am a licensed attorney in the State of California, but I am not your attorney unless a written Retainer Agreement exists with Nicole Cheri Oden Law, PC. You should consult an attorney in your area to make sure you’re taking the right steps for you and your business.
3 Boilerplate provisions to consider are:
1. Entire Agreement Provisions
I’m going to address an important concept in contracts – Parol Evidence. I know, it sounds like some sort of crime show right?! But what it really means is generally you’re not allowed to bring in other evidence to show what a contract was intended to mean. In other words, if you have a dispute about your contract with a client, they can’t use your Facebook messages to show what they think the contract was really supposed to mean.
That being said, without an Entire Agreement Provision in your contract, they might be able to introduce those Facebook messages into evidence to explain or potentially supplement the terms of the contract. Sounds like a loophole, right?
An Entire Agreement Provision in your contract acts like a gatekeeper. It says that the contract is complete and exclusive and no other evidence can be used to show what the contract meant aside from the language of the contract itself. And the courts do give these clauses great weight.
The question you’re probably asking is, “Why should I care?” As a business owner, we all understand that negotiation is part of all business relationships. There will probably be some back and forth in terms of price or services being offered, for example. A contract with an Entire Agreement Provision provides some certainty that everything is contained in one document that acts as the backbone for your working relationship.
2. Severability Clause
So, let’s say you have a dispute arise with a client or customer. And they decide to challenge your contract. If the Court were to find that a provision was invalid or unenforceable, it could also find the whole contract is invalid and unenforceable.
A Severability Clause prevents this from happening by saying that the unenforceable or invalid provision be severed (or removed) from the contract and the remaining provisions remain in full force and effect. Including this type of provision can weigh heavy in the Court’s eyes to prevent your whole contract from being set aside.
In California there is a preference for severability in the Civil Code. And since contract law varies on a state by state basis, you should check in with a local small business attorney to explore your state’s view on severability and how it affects this provision in your contract.
3. Notice Provision
If your contract provides that there will be interaction between the contracting parties or there are deadlines for performance, it should also include a notice provision.
The notice provision will outline things like:
the means of providing notice (personal delivery, mail, fax, etc.)
the addresses for notice
procedures for changing the addresses
If you work in the online space, much of your work is probably done virtually and via email. Email notices are generally enforceable under the federal Electronic Signatures in Global and National Commerce Act (E-SIGN) (15 USC §§7001–7031) and the California Uniform Electronic Transactions Act (UETA) (CC §§1633.1–1633.17) if you’re based in California.
BUT there is always a risk that your email could end up in the spam folder or never even show up if there are server capacity issues going on. For that reason, I always recommend that if you plan to give notice by email, you also provide a hard copy of the notice by mail. Just in case.
If you are ready to understand your contract’s provisions – or need a contract drafted – for your online business, book a consultation here.
This post is an attorney communication under Rule 7.2 of the Rules of Professional Conduct of the State Bar of California and Business and Professions Code Sections 6157-6159.2.
Online businesses involve a unique blend of legal issues – advertising, affiliate marketing, sweepstakes and promotions, email marketing, intellectual property (copyright and trademark), data privacy and security – all blended with contracts and contract law.
Avoiding contracts like the plague is not a smart way to do business. But signing a jankity contract you find on the internet can be a BIG mistake.
You never know if you’re using the wrong contract.
If you’re leaving out important provisions.
If you’re signing something you don’t even understand.
If you’re opening yourself up to a copyright infringement claim.
If you’re not accounting for California law requirements.
Having solid written contracts and policies in place for your online business is key to:
1. Mitigate your risk.
Contracts are a reflection of your negotiation with the other party. A well-drafted contract should protect both parties and serve as a reminder that the business transaction should be taken seriously.
2. Form the backbone of your relationship with clients and customers.
Your contract reflects the expectations of each party. It serves as the guidepost for each party’s actions and can encourage communication and collaboration when negotiated properly.
3. Protect your income.
Having your agreement in writing increases the odds of a successful working relationship because it provides protection if terms are not followed. And if an issue does arise, enforcement can be much easier.
Quite simply, working with an attorney to ensure you have solid contracts and policies in place for your online business now can save you thousands of dollars in the long run.
That’s where Nicole Cheri Oden Law comes in. The virtual firm is uniquely situated to provide solid legal advice as both an attorney and entrepreneur to ensure that you’re protecting your online business by offering:
Contract Drafting – having a contract or policy drafted for your particular situation takes out the uncertainty.
Contract Review – it’s important that you review any contract prior to signing it to ensure you have a solid understanding of its terms and that it meets both parties’ intentions. Reviewing the contract with an attorney who can provide you with an explanation of any complex terms and may allow you to negotiate better terms.
Legal Strategy Sessions – an intensive meeting to discuss the specifics of your business, the contracts and policies you currently have in place, and the contracts and policies you should consider getting in place.
Book a consultation with Nicole Cheri Oden Law here.
This post is legal education and information, not legal, business, or financial advice and it does not create an attorney-client relationship between us. I am a licensed attorney in the State of California, but I am not your attorney unless a written Retainer Agreement exists with Nicole Cheri Oden Law, PC. You should consult an attorney in your area to make sure you’re taking the right steps for you.
This post is an attorney communication under Rule 7.2 of the Rules of Professional Conduct of the State Bar of California and Business and Professions Code Sections 6157-6159.2.
About This Site
This may be a good place to introduce yourself and your site or include some credits.
