Category: Featured Post

• Can You Trademark a Hashtag?

  

  I spoke at TechPhx on Social Media Horror Stories from the Legal Trenches. One of the stories I told was Turner Barr’s experience with having his blog, Around the World in 80 Jobs, essentially shut down because another company registered the trademark in the same name. At the end of my talk, someone asked if you could register the trademark in a hashtag.

  A trademark is the words, slogans, logos, colors, packaging, etc., you put on your products that differentiate you from your competition. If you don’t register your trademark, you get the exclusive right to use your marks where you’ve established your market. When you register your trademark, you get the exclusive rights to use your marks on your type of products everywhere in the U.S. If you want to know more about trademarks, check the story behind the Burger King trademark.

  

  Just like you can register a trademark in a company name, product name, or slogan, you can register a trademark in a hashtag. The first rule is your trademark can’t be the generic product. If you own a coffee shop, you can’t register the trademark #coffee. If the U.S. Patent and Trademark Office (USPTO) let you have that, you could stop your competition from calling their coffee “coffee,” which would be very confusing. You could register your business name (i.e., #DansCoffee) or a slogan like #GreatMornings or #WheresMyMug.

  The second rule is you can’t claim a trademark that your competition is already using. If you were a soda manufacturer, you couldn’t register the trademark #Coke or #CocaCola unless you were the Coca-Cola Company.

  Another thing to keep in mind is when you register your trademark, you have to declare what you’re claiming as your trademark and what goods or services you’re using it on. You only get the exclusive rights to your mark in your arena of goods. You can’t stop another company from using a similar trademark on their products as long as they are completely unrelated.

  Registering a trademark allows you to prevent your competition from using your trademark or something similar to it. It doesn’t give you the ability to stop people from using your slogan in their everyday lives. For instance, the Williamstown Theatre Festival could register the trademark in the hashtag #WTF which would allow them to prevent other theatres from using the same hashtag to promote their products, services, and events, but it would allow them to stop everyone who uses it on Twitter to mean “What The Fuck.”

  Registering a trademark is a long process. It can take months for the USPTO to look at your application and then there may be several rounds of communications between you and the USPTO before your trademark is approved. If you want to claim the exclusive right to use your desired hashtag, it should be for something that you’re planning on using for a long time.

  So can you register a trademark in a hashtag? Yes. Should you register your hashtag as a trademark? It depends on your situation. That should probably require a joint meeting with your marketing staff and your lawyers. If you want to chat with me about this or any other topic, you can connect with me Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
  You can also subscribe to the Carter Law Firm newsletter.
  Please visit my homepage for more information about Carter Law Firm.

  November 21, 2013

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  Ruth Carter

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  Business Law, Featured Post, Geek Law, Intellectual Property, Internet law

  Arizona business attorney, Arizona trademark attorney, Carter Law Firm, intellectual property, Phoenix business attorney, Phoenix trademark attorney, Ruth Carter, trademark hashtag

• Poor Man’s Copyright Doesn’t Work

  

  Every time I speak about copyright to a group of artists or writers, someone always asks me about how poor man’s copyright works and whether it’s valid. Poor man’s copyright is the idea that you can establish that you created something first by mailing a copy of your work to yourself and using the date on the postmark as proof of when you created it. If anyone copies your work and claims a creation date that’s after your postmark, you can use the postmark to show that you created the work first.

  To anyone who’s been sending their work to themselves, you can stop. Poor man’s copyright is crap and a waste of your time and money. A postmark on an envelope tells you when the post office processed the envelope, not what was inside of it. You could easily send an unsealed envelope to yourself and put your work in it later and seal it.

  

  You get the exclusive rights to copy, distribute, display, perform, and to make derivative works based on your work the second you’ve fixed your work in any tangible medium. (Sorry, there’s no copyright protection for ideas that only exist in your head.) If you want to maximize your rights in your work, including the ability to sue for copyright infringement and collect statutory damages, you need to register your work with the U.S. Copyright Office. You can do it online and most application fees are only $35.

  To demonstrate why poor man’s copyright doesn’t work, I recently addressed an envelope to myself and sent it, unsealed, through the mail. I made a video about the result. You can see it below or here.

  If you want more information about how you can protect your rights in your work, please contact me or a copyright attorney in your community. You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
  Please visit my homepage for more information about Carter Law Firm.

  June 20, 2013

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  Ruth Carter

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  Featured Post, Intellectual Property, Photography & the Law

  Arizona copyright lawyer, Arizona intellectual property lawyer, Carter Law Firm, Copyright infringement, copyright law firm, Copyright lawyer, copyright ownership, intellectual property lawyer, IP lawyer, Phoenix copyright lawyer, Phoenix intellectual property lawyer, poor man’s copyright, poorman copyright, Ruth Carter

• Does Your Employer Have a Social Media Policy?

  

  Does your company handbook have a social media policy in it? And I mean a policy that talks about what you can and can’t say on your social media accounts. I don’t mean the policy that a lot of employers have about not being on Facebook and Twitter during company time or on company computers.

  Seriously, go check. I’ll wait.

  If you don’t have one, don’t feel bad. About a year ago 76% of companies didn’t have a social media policy. That’s disturbing. I’m surprised when I meet someone who isn’t involved in some type of social media. It’s staggering that employers haven’t kept up with the times.

  People visit this site all the time looking for information about what their employers can and can’t do regarding social media – Can my employer require me to promote them with my personal Facebook account? (No.) Can my employer control my Facebook? (No.) Can my employer require me to delete my social media account? (No.) Can my employer print my Facebook pictures? (Yes.) Can I be fired for how I spend my personal time? (Maybe.) Can my employer monitor my personal Facebook page? (If it’s public, yes.)

  That’s just a handful of the questions I’ve gotten in the last month.

  The issue is clear – If your employer doesn’t have a social media policy, ask for one. And tell them they better check the latest report from the NLRB before they write it.

  Left to their own devices, most employers will write a social media policy that says you have to promote the company with your personal accounts and/or you can’t say anything negative about the company online. Both of these provisions are illegal. The former violates Facebook’s terms of service; the later violates the NLRA.

  What’s the NLRA? It stands for National Labor Relations Act. It protects employees’ abilities to talk amongst themselves about things like wages and work conditions. You’re allowed to do it publicly (even on the internet) and you don’t have to be respectful about it. If you’re ever fired for something you did on your social media account and you think it was protected by the NLRA, you can file a complaint with your employer with the National Labor Relations Board (NLRB). In the worst-case scenario, your employer will be required to give you back pay, pay you damages, and offer you your job back.

  My lawyer friend who litigates these cases recently told me that $10,000 was a low amount that an employer would be ordered to pay in these situations if they fired someone for a reason that violated the NLRA.

  I tell every employer that they need a social media policy that provides a list of dos and don’ts for employees. I also tell them to hire an attorney to write the policy for them to ensure that it complies with the NLRA. Then I tell them to at least have their attorney review it every 6 months. The NLRB regularly publishes new reports based on their cases so the policy that was valid when it was written may be invalid now.

  This is one of those times when you can’t just download a social media policy template and call it good. This area of law is changing too often.

  It’s better to pay a chunk of money now to have someone write your social media policy than to have to pay $10,000+ in back pay, damages, attorneys’ fees, plus whatever it costs for your headache and stomach pain medication to treat the stress of dealing with an NLRB investigation. This is a problem a lot of employers don’t realize they have until it’s too late, and it doesn’t have to be. Call an attorney who understands social media and the NLRB to draft your policy for you.

  If this was TL:DR, I made a video. You can watch it below or here.

  You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
  Please visit my homepage for more information about Carter Law Firm.

  February 21, 2013

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  Ruth Carter

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  Business Law, Employment Law, Featured Post, Internet law

  Arizona business lawyer, Can my employer control my Facebook, Can my employer monitor my personal Facebook page, Can my employer print my Facebook pictures, Can my employer require me to delete my social media account, Can my employer require me to promote them with my personal Facebook account, Carter Law Firm, Internet lawyer, Phoenix business lawyer, Phoenix small business lawyer, Ruth Carter, sample social media policy, social media lawyer, Social media policy

• Flash Mobs Are Not Crimes

  

  This post was originally published on The Undeniable Ruth in August 2011. 

  It appears the term “flash mob” is being used inappropriately and its meaning is being overly broadened to include any group activity that is coordinated using social media. This year, there have been several robberies and assaults perpetrated by a group of people that appear (at least on the surface) to have been orchestrated via social media sites. The media has called them “flash mob crimes.” They make it sound like someone created a Facebook event that said, “Meet at Broadway and Main at 10pm. At exactly 10:03, we’re all going to run into the minimart, grab whatever we want, and run out.” That’s not a flash mob. That’s solicitation and possibly conspiracy. If the event actually occurs, it’s larceny and perhaps inciting a riot.

  A flash mob is defined as “a group of people who assemble suddenly in a public place, perform an unusual and sometimes seemingly pointless act for a brief time, then disperse, often for the purposes of entertainment and/or satire.” Flash mobs have been occurring at least since the 1970’s. In recent years, they have been orchestrated via email and social media websites; however, that does not mean that every public group activity that is coordinated via social media is a flash mob.

  

  Flash mobs are generally light-hearted innocuous fun.  People who participate in flash mobs ride public transportation without their pants; they welcome back strangers at the airport; they have fake battles between heroes and villains; and they stand frozen in place for short periods of time. Some protests and promotional events are referred to as “flash mobs,” but technically they’re not. And any event that has a criminal intent is definitely not a flash mob.

  I give the media some leeway when it comes to coining terms; however, I was deeply disturbed when I saw a legal website refer to flash mobs as including criminal behavior. It suggests the writer did not do their research on this topic.

  I love flash mobs. I have been participating in them and organizing them since 2009. When Improv AZ organizes a flash mob, we do thorough research on the potential legal implications of our event. I have attended an event with pages of statutes in my back pocket to ensure that we’re acting within the confines of the law. We are diligent to inform our participants in advance of their do’s and don’ts. We may push the envelope, but we never intend to cross the line. Most of our encounters with police involve them smiling or laughing at us. At the 2010 No Pants Ride after party, a Tempe police car stopped near us and an officer yelled out, “We had a briefing about you!” And then he went about his merry way, knowing we were harmless. A bit odd and rather goofy, but harmless.

  Flash mobs are harmless, playful, and unexpected events. They are not criminal acts by design. Flash mobs and crimes are two completely different phenomena.  They do not exist on the same continuum.

  In other news, the flash mob community needs to send a big “thank you” to Mayor Jackson and the city of Cleveland. Mayor Jackson recently vetoed a proposed law that would have made it illegal to use social media to coordinate a flash mob.  Thank you for protecting our First Amendment rights!

  January 23, 2012

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  Ruth Carter

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  Featured Post, Flash Mob Law

  Cleveland, crime, criminal law, First Amendment, flash mob crimes, flash mobs, Improv AZ, Improv Everywhere, law, Lawyers.com, Mayor Frank Jackson, pranks, Ruth Carter, social media