What was up with General Mills’ Legal Terms?

General Mills Kids Breakfast Cereals by Mike Mozart from Flickr (Creative Commons License)

General Mills Kids Breakfast Cereals by Mike Mozart from Flickr (Creative Commons License)

I got lots of messages last week when it came out that General Mills’ legal terms said that if you downloaded their coupons, connected with them on social media, entered a contest, or purchased any of their products that you agreed to resolve all disputes with the company through binding arbitration or informal negotiation via email.

And everybody lost their minds.

I can understand requiring arbitration for disputes related to contests. I write terms of service for websites all the time and I also include a dispute resolution where my client specifies where, how, and using which state’s law problems will be resolved. I would never tell a client to write their terms in a way that dictates how they’re going to resolve problems that are not related to a website.

I think it’s ridiculous that they’d even try to tell consumers that making a purchase forces them to resolve disputes in arbitration unless those provisions are available on the packaging and in print that might make a consumer take notice. I’ve never thought to examine a cereal box for contract terms.

Thankfully General Mills saw the light and reversed its decision and voided the offensive terms this past Saturday. In a blog post, General Mills spokesperson Kirstie Foster wrote, “No one is precluded from suing us by purchasing our products at a store, and no one is precluded from suing us when they ‘like’ one of our Facebook pages.”

General Mills still supports arbitration for resolving disputes and I understand why. It can be a faster and more cost-effective way to resolve problems. However, some disputes are better left to litigation where there is the option to pursue a class-action lawsuit when the situation warrants it.

We agree to contract terms all the time. Every time we click the “I agree” button for an online service or to create an account on a social media platform, we are agreeing to the terms of the contract (even if we don’t read the terms). The next time you go to a concert or a professional sporting event, flip over your ticket and read the fine print on the back. That’s a contract. I have no problem with these contracts as long as they make sense for the situation and don’t overreach into scenarios where it would be unreasonable for the terms to extend.

My Neighborhood Whataburger

My Neighborhood Whataburger

For example, I recently heard that there was a sign at a Whataburger restaurant that put consumers on notice that by eating in the restaurant, they agreed to resolve all disputes related to their dining experience via arbitration. I tried to confirm this but I didn’t see such a sign in my neighborhood Whataburger. I visited their website and didn’t see such a provision; however, I was perturbed to see terms and conditions that said:

By giving us permission to use your post or tweet, you agree that we may, at our discretion, use your real or social media user name and the content of your post or tweet (including all accompanying images) on our website to promote our company, products and services for such time period as we wish. You give us the right to edit your post or tweet for brevity, clarity and the like and to modify any image in any manner we deem necessary to use it on our website. You will not have the advance right to review or approve what we post on our website….You will not receive any compensation for granting us the above rights. We agree that you may withdraw the permission you have given us at any time by sending us an email at customerrelations@wbhq.com.

Whataburger’s Facebook page says they can use anything you post on their page but I didn’t see any similar verbiage on their Twitter profile. I think they’re trying to set themselves up so they can use anything you post about the company on social media, including editing it which I’m not too keen about the verbiage they used.

This is a topic that is worth watching to see what becomes the norm in social media marketing. I f you want to talk more about terms of service or social media law, connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. Please subscribe to the Carter Law Firm monthly newsletter and visit my homepage for more information about Carter Law Firm.

U.S. Copyright Office is Raising its Filing Fees on May 1, 2014

Burning Nature by Vinoth Chandar from Flickr (Creative Commons License)

Burning Nature by Vinoth Chandar from Flickr (Creative Commons License)

Last week, the U.S. Copyright Office announced that it is raising its fees to register your work. Effective May 1, 2014, the cost to register a single work or a collection of works using their online system will go up from $35.00 to $55.00 per application. For those of you who are old school and prefer to register your work by mail, the fee will go up from $65 to $85.

So if you have projects that you were planning on registering with the Copyright Office, now would be a really good time to get them done.  You only have to get your application in before May 1st; it may take the Copyright office until after May 1st to process it.

There is one piece of good news in the fee hike announcement. The U.S. Copyright made an exception for individuals who are registering single works that are not “works made for hire.” If you are a photographer, writer, or some other artist and you want to register you works individually, your filing fee will remain at $35 per application.

I had a question about this exception because I know many artists who create a lot of works that are not works made for hire, but they do it under an LLC for liability and tax purposes.  I called the Copyright Office and they confirmed that you only qualify for the $35 fee if you register as an individual person. If you register your work under your business name, you have to pay $55 per application, even if you are the only person in the business.

Heart in Pages by Vincent Lock from Flickr (Creative Commons License)

Heart in Pages by Vincent Lock from Flickr (Creative Commons License)

The only things that are changing on May 1st are the Copyright Office’s fees. The rest of the copyright laws have remained the same.

To qualify for a copyright, you need an original work of authorship that is fixed in any tangible medium. When you have a copyright, you have the exclusive right to control where your work is copied, distributed, displayed, performed, and what derivative works can be made from it. You get these rights the moment your work is created, even if you never register it with the Copyright Office and even if you don’t put a copyright notice on your work – i.e. “© [Copyright Owner’s Name] [Year].”  If you register your work, your registration provides the presumption of ownership and validity of your copyright rights. If you ever want to sue for copyright infringement when someone steals your work, you must register your work with the U.S. Copyright Office first.

If you want to talk more about copyright, copyright registration, or intellectual property strategy, connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. If you post your original work online, I strongly recommend you check out the many chapters on copyrights in my books:

Please subscribe to the Carter Law Firm monthly newsletter and visit my homepage for more information about Carter Law Firm.

Legal Issues if you Outsource your Blog Content

Content Writer by Ritesh Nayak from Flickr (Creative Commons License)

Content Writer by Ritesh Nayak from Flickr (Creative Commons License)

I don’t believe in outsourcing my blog content, but I understand that some people do because they’re busy, or they’re afraid they’re not a good writer, or they’re not dedicated to maintaining their site. Whatever the reason, it happens. If you fall into this boat, there are some legal ramifications you need to be aware of and plan for.

Regardless of who you use to write your blog material, you should review every post before it goes up to ensure that the content is accurate, especially if you work in a field where misstatements can happen and readers could be harmed if they rely on your blog’s information.

Copyright
If you outsource your blog to a third party, your content creator owns the copyright in whatever they create for you unless you have a contract that states otherwise. Without this contract, they own everything and, at most, you have an implied license to use it on your site. If you want to repurpose a blog post, you have to get your writer’s permission; otherwise, you could commit copyright infringement by reusing the material from your own site.

Indemnification
When your writer creates a post, you often do not know what source material they used or where they got the images for each post. (Yes, every blog post needs an image.) There is always a risk that your writer will rip off someone else’s verbiage or image without your knowledge.

If you do not review each post before it is released on your site, there is a risk that your writer could post something defamatory or harmful to another person. The alleged victim in that case might sue you for damages because they were injured because of your website. To avoid this problem, you can protect yourself with an indemnification clause that holds the blogger responsible for the damage they cause or at least requires them to a pay your attorneys’ fees and/or damages assessed against you.

Clear Contracts
If you work with a third party content creator, you want a clear contract that explains all the pertinent aspects of your relationship – what they will create for you, deadlines, who is responsible for website problems, if they’re allowed to write similar content for others, how you’re going to resolve problems, who will own the copyright, and if the writer can use posts as work samples if they assign the copyright to you.

I love contracts. If the term “contract” is a turn-off for you, think of it as a relationship management document. All it is a document that lays out how your relationship is going to work. I made a video this week about how awesome contracts are.

When you work with third party content creators, not having a contract is not an option. If you want to chat more contracts for your content creators, connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also check out my books about the legalities of blogging:

Please subscribe to the Carter Law Firm monthly newsletter and visit my homepage for more information about Carter Law Firm.

Arizona Fantasy Gaming Bill Fails

Fantasy Football League 1 Draft by Jay Thompson from Flickr

Fantasy Football League 1 Draft by Jay Thompson from Flickr

Arizona lawmakers have, once again, shown how lame they are. Earlier this year they approved the anti-gay SB 1062 which was thankfully vetoed by soon-to-be-former Governor Brewer. This time they killed SB 1468, which would have legalized fantasy sports.

Arizona is one of a handful of states where fantasy sports are illegal. Sometimes this means that Arizonans can’t participate in fantasy sports if they admit their true location or they’re allowed to play but they can’t accept prizes if they win – even if there’s no fee to play or the prize is as simple as a t-shirt.

Here’s what’s super lame – Under federal law, fantasy sports are legal!  Under the Unlawful Internet Gambling and Enforcement Act of 2006 (UIGEA) fantasy sports aren’t gambling because each participant’s team is made up of players from multiple teams and the results are based on the participant’s knowledge and skill. I can speak from my limited experience playing in the Deadliest Catch fantasy game that it definitely takes knowledge and skills. Unfortunately fantasy gaming is regulated at the state level so each state has the option to say that fantasy games are illegal.

Apparently SB 1468 was killed due to the influence of the Arizona Indian Gaming Association. They were afraid that legalizing fantasy games would negatively impact the tribal gaming compacts. I can understand that the tribal casinos want to have a monopoly on gambling in the state but I don’t see how fantasy sports would hurt them. I doubt that people will give up black jack and slot machines for a fantasy league. I think they’re afraid that people would start fantasy gaming businesses that could create competition for the casinos but I have serious doubts that people who love to hang out in casinos will give that up for fantasy gaming.

Technically fantasy gaming is a Class 5 felony in Arizona, and anyone convicted could face at least 6 months in jail and up to a $150,000 fine. As far as I know no one has been charged or convicted of violating this law and law enforcement isn’t concerned with pursuing these “criminals.” So it’s a law on paper, but in reality it’s just lame. Hopefully lawmakers will legalize fantasy games next session.

If you want to chat more about this issue, connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Can You Trademark & Copyright a Phrase?

What's not wrong with PIPA or SOPA? by opensourceway from Flickr (Creative Commons License)

What’s not wrong with PIPA or SOPA? by opensourceway from Flickr (Creative Commons License)

I saw this tweet come through my feed over the weekend.


It made me grin, and then my big dorky legal brain kicked in and had to analyze the possibilities.

Can You Trademark a Phrase?
It depends.

If a phrase is being used as a tagline or slogan for a company or product – think “M’m! M’m! Good!” for Campbell’s Soup or “Just Do It” for Nike – then yes, you can trademark it. If it’s just a phrase that’s not connected to a product or service, then it’s not trademarkable.

The purpose of the trademark is to differentiate similar products and services from each other so consumers know what they’re buying. When you register a trademark, you have to tell the U.S. Patent and Trademark Office what you’re claiming as your trademark (name, logo, slogan, etc.) and on what product or service you’re using it. A cool phrase without a product or service is just a phrase. It can’t be protected with a trademark.

Can You Copyright a Phrase?
Probably not.

The purpose of a copyright is to entice authors and artists to create works by giving them the exclusive right to control where their work is copied, distributed, displayed, performed, and what derivative works can be made from it. They have these rights the moment the original work is “fixed in any tangible medium.”  A phrase is often too short to be original so it doesn’t qualify for a copyright, even if it is fixed in a tangible medium like on paper or a digital file. If a person had a copyright in a phrase, they could stop others from using it in their work and it would create a big mess.

Think about Paris Hilton and “that’s hot.” She does have a trademark that phrase in conjunction with “multimedia entertainment services” and alcoholic beverages. She can stop you from using “that’s hot” as a slogan or product name in those industries, but she can’t stop you from saying “that’s hot” in general.

What about “Terminally Soulless Douche Canoe?”
“Terminally Soulless Douche Canoe” is an awesome phrase. You could use that as a company name, product name, or slogan if you want, but you have to be able to identify what industry that company or product is in. Unfortunately, even though I think it’s highly creative, it’s too short to get a copyright by itself. If it was part of a larger work – such as an essay, blog post, poem, book, or integrated into a work of art – the artist would likely have copyright protection for the larger work, but probably not for the phrase alone.

For more on the difference between trademark and copyright:

If you want to chat more about trademarks and copyrights, connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

I’m Doing a Google Hangout On Air at ABA TechShow 2014

Legal Side of Blogging for Lawyers for blog postI’m excited to announce that I’ll be doing a Meet the Author talk via Google Hangout On Air at the ABA TechShow 2014. I’ll be talking about my new book, The Legal Side of Blogging for Lawyers.

My talk will be on Friday, March 28th. It officially starts at 8:15 a.m. Pacific Time (10:15 a.m. Central Time) and will last for 45 minutes.  (We’ll be on starting at 8:00 a.m. making sure everything is ready to go.)

Because I’m doing my presentation via Google Hangout, anyone can attend – even if you’re not attending the conference. Here’s the link for the event. I hope you can join us!

I’m usually asked to do a lecture when I speak at events, but this time I want to talk about what you want to talk about and answer your questions. There will be a button on the Hangout where you can ask a question or you can tweet questions at me using the hashtags #RuthBook and #ABATechShow. (Feel free to tweet questions in advance too!)

If you are attending TechShow, my book is available at the ABA bookstore booth in the exhibit hall. I’ve heard all books are on sale for 15% off and your shwag bag has a coupon for additional savings.

This will be my first time doing a presentation at a conference remotely and my first experience leading a Google Hangout On Air. I look forward to chatting with everyone at TechShow any everyone else who will be watching from sunny Phoenix.

If you’re looking for other ways to connect with me, you can do so  on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Book Special for Captain Kirk’s Future Birthday

Dave Checking out the Perseid Meteor Shower at 10,000 Feet by Dave Dugdale from Flickr (Creative Commons License)

Dave Checking out the Perseid Meteor Shower at 10,000 Feet by Dave Dugdale from Flickr (Creative Commons License)

For anyone who hasn’t seen my YouTube channel, I’m a geek. In particular, I’m a great big Trekkie. I love the show and the movies. I have a uniform and I wear it at conventions (and whenever I want). And I try to do something special every year in honor of the future birthdate of Captain Kirk (March 22, 2233).

Legal Side of Blogging Book CoverEarlier this year, I enrolled my ebook – The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed – in KDP Select on Amazon. This is a program that’s available to people who only publish their work on Amazon. One of the perks is it lets you run a promotion on your book. I’ve never run a special on my book before so I thought I’d give it a whirl and see how it goes.

I had to make the arrangement weeks in advance so I decided to run my book special in honor of Captain Kirk’s future birthday. If you’ve been looking for an excuse to get your hands on this book, here it is – from March 17th until the 23rd, my book will be on sale for $1.99, down from its usual $3.99. If you want a copy for yourself or if you want to gift a copy to the blogger friend in your life, now is the time to do it.

This book covers common questions related to blogging including copyright, trademark, privacy, and defamation. It’s written in an easy-to-understand style expressly for serious bloggers with as many direct answers as possible (which is hard to get out of a lawyer). All of these lessons apply equally to other social media platforms so it’s a must-read for anyone involved in blogging, content creation, or online marketing.

I hope you enjoy it!  If you want to chat more about the legalities of blogging, you can connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

New Book – The Legal Side of Blogging for Lawyers

The Legal Side of Blogging for Lawyers

The Legal Side of Blogging for Lawyers

Having a blog is still awesome. Getting in trouble because of your block isn’t. When you’re lawyer, staying out of trouble when you have a blog is a little more complicated.

I became interested in the legalities of blogging when I started my personal blog, The Undeniable Ruth, in 2010. I have a lot of friends who are outspoken online and I wanted to know how far we could push the envelope before one of us crossed the line. That became a blog series, which inspired a paper for my Cyberspace Law class, and became the basis of my first book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. I tried to write as a blogger for other bloggers – in English instead of legalese. I tried to give as many straight answers as possible in an arena where the law hasn’t kept up with technology.

When I signed on to write The Legal Side of Blogging for Lawyers, I wanted to address all the common legal questions any blogger would have and also address some issues that are specific to the legal profession.  I added sections about the type of disclaimer every legal blogger should have on their site and under what circumstances lawyers can blog about their own cases. Lawyers also have to be mindful of their state’s ethical rules about lawyer advertising. This shouldn’t be that big of an issue because if your blog constitute advertising, you’re probably doing it wrong.  The book also includes practical advice on how to respond to people who leave comments on your site that ask for legal advice – despite the fact that your disclaimer clearly states that anyone in that situation should schedule a consult with a lawyer in their community.

I also added three appendices that list the state and federal laws that apply to blogging, online resources related to the legalities of blogging, and a list of recommended books about blogging and social media marketing.

One of my favorite parts of this book is the afterward written by anonymous legal blogger The Namby Pamby – a man who has personally experience blogging about his cases with the added burden of keeping his identity a secret. His blog is hilarious, and I loved hearing his take on my work.

After the book came out, I had the pleasure of talking about the book on the JD Blogger Podcast. Host John Skiba said that he liked the book can be used as a resource for lawyers with cases that are related to the internet because it’s filled with citations to the applicable cases and laws.

If you want your own copy, The Legal Side of Blogging for Lawyers is available through the American Bar Association.

If you want to chat more about the legalities of blogging, you can connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

How to Register a Trademark with the USPTO

USPTO Seal by cytech from Flickr (Creative Commons License)

USPTO Seal by cytech from Flickr (Creative Commons License)

I’ve had several people ask me what is involved in registering a trademark with the U.S. Patent and Trademark Office (USPTO). Your trademarks include the names, logos, tag lines, and anything else you put on your products and services to inform customers about the source and quality of what they’re buying.

Once you have a trademark registered with the USPTO, you have the exclusive right to use your trademark on your goods or services anywhere in the U.S.  If anyone tries to start similar business or sell a similar product with trademark that is too similar to yours, you can make them change it. The only companies that can have the same trademark as you are companies who were using the same trademark before you registered yours with the USPTO (i.e., the Burger King situation) or companies that use a similar trademark but on a product that is so different from yours that no one would think that they are owned by the same company (i.e., Delta Faucets, Delta Dental, and Delta Airlines).

Here is the process that I go through to register a client’s trademark with the USPTO:

1. Clarify what the trademark is and what products or services it’s being used on. You can only claim rights to a trademark that you’re using in commerce or expect to use within six months.

2. Determine if the desired trademark is trademarkable – not every trademark is. Your trademark can’t be the product itself.

3. Check the USPTO database to make sure no one else has registered the same trademark on a similar product as my client’s.

4. Evaluate if others are using the same trademark without registering it with the USPTO. Once your have a registered trademark, these companies can keep using it in their established geographic market, but they can’t expand without rebranding.

5. Complete the USPTO trademark application which includes determining the best description of the product and which class(es) of products we’ll be applying for. The USPTO charges a fee for each class of products you register the mark for.

6. Submit the application to the USPTO with the filing fee.

7. Wait three or four months for the USPTO to get around to reviewing your application. Yes, their backlog is that big. Once I submit an application, I typically check on it at the beginning of each month to see if it’s been assigned to a reviewing attorney at the USPTO.

8. Respond to any Office Actions if we receive any from the USPTO. An Office Action is a communication from the reviewing attorney that says that there’s a problem with the application. They may request clarification, a disclaimer, or claim that the desired mark can’t be registered. Depending on what the USPTO and my client wants will determine how I respond and how much work will be required.

9. Once the USPTO approves the mark, they will publish it on its official gazette. This puts everyone on notice that your mark is about to be approved. If no one objects within thirty days, your trademark will be registered.

You should expect the entire registration process to take at least eight months, but it could be longer. Once you have a registered trademark, you can use the ® next to it. You will continue to have your trademark rights as long as you’re using it in commerce. The USPTO requires that you send in update affidavits periodically that verifies that you’re using the trademark. If you don’t use your trademark for three consecutive years, it will be considered “abandoned” and anyone can use it.

If you’re looking for more information about what a trademark is and the benefits of registering it with the USPTO, I made a video about it.

If you want to chat more about trademark registration, you can connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.