Your Trademark and Copyright Questions Answered An Interview With Joey Vitale
Facebook interview with Joey Vitale
About Joey: He is an attorney for small businesses who are creative business owners, or creative entrepreneurs. His firm specializes in businesses that have grown out of the “hobby” stage, or the “startup” stage of their businesses. They offer a basic foundation layer of protection for the business.
Joey Explaining The Post “Break Up With Etsy”.
Joey: I don’t hate Etsy; I don’t think that Etsy is evil. I think that what is happening right now on Etsy is an unintentional consequence of them trying to figure out some type of illegal procedure to handle some things. When Etsy started, it wasn’t seen as a sales funnel, it was more like an opportunity for existing businesses to sell what they had, and not being where people go to get started. It has morphed and changed a lot since then. What is happening now is that the types of products that are on Etsy are getting a lot more popular, people are figuring out how to do those exact same designs. So there are a lot of similar products on Etsy, and the way that it is mapped out; you can go on the site and find products. From there it is easy to see similar products that are similarly priced, or lower in price. If you want to own a business that you intend on lasting from 5 to 10 years, you need a consistent predictable way of getting sales every month. It can be very hard to have that confidence, that you can get that steady stream, when the unfortunate reality of Etsy is that your store can get shut down at any moment.
Dalia Explaining Why Not To Rely Only On Etsy:
Dalia: I relied on Etsy a long time ago. Now I have my .com, Amazon, and a few more things. But there was one point where I resigned from my other job, my full time job; to do this full time. At the time, all I had was Etsy, was it a smart move? I don’t know. The point is that I don’t want people to do that. For the reason Joey mentioned earlier and because it’s just not smart. I talked about this Monday, for people not to just rely on one revenue stream. Even if it’s just your .com; because there will be up’s and down’s with retail online sales. Forget the fact that you may never get shut down on Etsy. You get worried, you feel scared, and then what happens, you are not productive that day, you’re not motivated. Then all of a sudden everything falls. I mentioned this same topic last week. I believe the title of the Facebook Live was “If Etsy is slow, that’s actually really good news”. It forces them to figure out an alternative plan; and then 6 months to a year from now, they realize “ man, I wouldn’t have had built my .com, or gotten those Amazon sales if I wasn’t slow at that time and forced myself to look out to get something else going”.
Word association game – Dalia will say some words, and Joey will tell us if it falls underneath the Copyright, Trademark, Other or None Category. Sometimes there is confusion between trademarks, and copyright. Of course there are some things that we are very aware of in our business, like the business name. I would say that people would assume that it’s a trademark, but sometimes people don’t know all of these.
Dalia – Books
Joey – The text inside of the book can be protected by copy writing. But the title of the book cannot be copyrighted. If you want the title of the book to be protected, then you would register the title as a trademark.
Example: The text inside of this book can be copyrighted. However, someone can still use the same name of this book if it isn't registered as a title trademark.
Dalia – Photos
Joey – Copyright
Dalia – Perfume Sent
Joey – A perfume sent can be protected by a trademark. It is not very common, but a smell is capable of getting a trademark protection.
For example: Verizon (the phone company) is trying to get an application registered for a certain smell to be in their stores. So when people go into the stores, they can identify the smell with Verizon.
Dalia – Logo Design
Joey – Either. It depends on whether it’s something that you are using for branding purposes, or not. Any kind of logo can be, as long as it’s not just text. In order for it to be copyrighted, there has to be some level of creativity to the design.
For example: If you are trying to use this logo for your business, then it would be illegal because they use this logo for branding purposes.
Dalia – Facebook Group Member Brenda Asked “What About The Bible”?
Joey – Bibles are kind of like books, so those passages are protected through copyright. There is a thing called a “public domain”. After a copyrighted work has existed for a certain amount of time, then it can fall into the public domain. There are a lot of bible editions that are in the public domain that are free to use. There are new additions to the bible that fall under the creative commons license. If you are wanting to use bible passages, figure out what edition you want to use, and do research to figure out if they have a public domain, or if they have a license that you can purchase or request permission to use.
Dalia – Music Lyrics
Joey – Music lyrics, kind of like a book, the lyrics can be protected through copyright. But the song title or the Album title can be protected by trademark. That being said, any part of a phrase can be a trademark if it is being used for branding purposes.
Dalia – Does That Mean That All Music Lyrics Are Off Limits? Are There Any Loopholes?
Joey – Public Domain is one area to think about when it comes to copyright laws. Addition to public domain, there is “fair use”. Fair use is a legal defense, when someone accuses you of using their copyright. You say “Yeah, but”… and give the reason why. In this case it is fair for you to use. One of those factors in the fair use defense is that you’re taking just a small piece of larger work. You could potentially make the argument that you are only using a part of a song lyric. If you are using it for educational purposes and not commercial purposes then you could use it.
Dalia – Someone Mentioned, What About Quotes?
Joey - In order for something to be protected by copyright, it has to do a number of things. It has to be original, has to be creative in some way, and it has to be fixed. The work that is copyrighted has to be in a fixed form somewhere. The quote only protected if it exists in a fixed form somewhere. If it’s recorded in some way, or if it’s written down, then it could be protected by copyright. But for example if you are talking over the phone with someone and they tell you something, and you say “that’s a really good quote”. I couldn’t have any protection over me just saying something that was never captured. Anything that comes from a public official cannot be copyrighted.
One thing that you can do is make the decision on whether or not you want your business model to have to lean on theses legal considerations. Or if you’re starting at a point to where you can pivot, if there might be something else you can do as a business that makes these matters less.
Dalia – Who Or Where Can I Ask To Figure Out If It’s OK To Use Trending Phrases.
Joey – Trademarks are a lot easier to track once you get familiar with that system. The United States Patent and Trademark Office, they have a website called https://www.uspto.gov/ . You can run a very basic trademark search. You can put the word, or phrase to see if anyone has tried to get a trademark registered for what you are searching for. Just because something shows up, does not mean it has a trademark, it could just be pending a registration.
Dalia – This Next Question Comes From David. “Is There Anything In Place To Stop The Flow Of Copy Writing Every Little Phrase? It Seems To Be Getting Absurd These Days.
Joey – The thing about trademarks, people need to understand first is, a trademark doesn’t exists as soon as you register it; it exists as soon as you use it in commerce. You don’t get trademark protection, just by registering at a federal level. You’re entitled to limited trademark rights the moment you use it in commerce. That’s important because, even if you have a registered trademark, that’s basically the federal level saying “we have this really strong presumption that you own this trademark” But it can still be challenged. Even though they have a registered trademark, there might still be no violation. The question is, do you have the ability (money) to challenge it?
Businesses that are serious, they should go with an attorney. It will increase the odds by 50%. If you don’t have an attorney, you might be successful; the chances are not in your favor. Technically anything can get trademark registration protection. The problem is that people are not using the common trend phrases as a trademark. They are just using them to put on a shirt or a card. If they wanted to name that business that phrase, or have a product line that was built around that phrase. The idea is when a consumer saw that phrase or product line, they thought of a specific source, that’s the point of trademarks. People are intentionally abusing the system because they are smart enough to know that this could knock a lot of people out of the water or they are trying to play defense in the best way they know of just to protect what they are doing. The reason why it is kind of villainous smart to do it this way is because the way that etsy and some other platforms work is that the platforms play a neutral party to these accusations. So even if you have a pending application for something you can send an infringement report, even though that report is merit-less, that other store now has a ding or strike on their account. If you don’t have something to point to and shows that you are actually in the right, then you don’t really have a leg to stand on in order to get etsy or any other platforms to remove that ding or strike.
Dalia – Could You Explain Whether Or Not Someone Should Trademark Their Business Name.
Joey – If you do want to be in business for over 5 years, and you think that your business name has standing power, then you should definitely be thinking about trademark protection. For a lot of small businesses that are just starting, the answer would probably be no. Instead of spending $275 to file a trademark application that will probably be denied, here is a way for you to learn what’s going on so you don’t have to waste money on the filing fee. Then when you are ready to have an application that has a high probability of success, then we can work together. There are allot of factors to consider, legally, business name wise, also where your area is at. That being said, if you are doing business on a platform that has that risk, then there is more of a reason for you to go ahead and register your business name as a trademark. If you have a registered trademark in your business name on Etsy, and then someone else accuses you with one of those merit list trademark accusations, you could say no, and also point to your registered trademark, and that’s probably the best way to get Etsy to remove that ding against your account.
Dalia – For People That Have Multiple Etsy Shops, Do They Have To Register Each Name?
Joey - One of my big philosophies that I think makes me a little bit different as an attorney is, I don’t think you need to worry about protecting your business until it is successful. The LLC is the big exception of that rule. Because the last thing you want, even if your business is still growing you don’t know how you might be sued. If your business is still growing, and someone comes after you, maybe you unknowingly violated someones copyright and they are coming after you for $150,000. If you don’t have that much money in your business account, and you don’t have an LLC wrapped around that, you’re not treating your business as an LLC or S-corp or C-corp, and then they can go into your personal assets. They can take your house, your car. If you are asking yourself whether or not you should stay as a sole proprietor or become a LLC; what you’re really asking yourself is “do I plan on this business needing protection down the road?” Becoming a LLC is the first thing you should do legally to protect yourself. That being said, if you have multiple businesses, I recommend creating 1 LLC, especially when you’re just starting out. The idea is to create what is called a “Sandbox LLC”. Because a lot of entrepreneurs are going to have a lot of business ideas, and it can be really expensive trying to maintain a lot of LLC’s. Especially if they are still in a “launching phase”. Create 1 LLC, name it whatever you want, because honestly it doesn’t matter. As many business adventures you want to work on, you file for the DBA (Doing business as) or that fictitious name. You apply for those under the same LLC .
Dalia – What Is The Point Of Me Applying For An DBA? Can’t I just say I Have These Businesses? Or Is It Because That Name Is Registered To Me?
Joey – Picture your whole life is like a house. And you are living in the basement. You decided that you want to start a business; everything in your business goes on the first floor. Create a LLC for the first floor. Even though you might be doing a lot of different things on that floor. It’s all one LLC, but you can do different things. The thing to keep in mind is that there is nothing separating the liability between anything on that first floor. So say, you have 2 companies; and company A starts doing really well, but someone sues company B, they could go after company A’s assets. Even if you have a DBA, because it’s all going to the same place. So the idea is that you create this sandbox LLC on the first floor. When something starts to become more successful, you move it upstairs. If one of your businesses starts to do well, then you create a new LLC in that name. And transfer all the assets to that bedroom that has its own shielded layer of protection.
Dalia – I’m in S-Corp; Could I File For An DBA?
Joey – The big thing to keep in mind when it comes to S-Corps is actually not a business entity, it is a tax status. When you form a business, you can become a sole proprietor if you don’t do anything. You can become a LLC, if you file the LLC paperwork, or a corporation. There are other things, but those are the main three. Once you do that, at some point you have to pay taxes. If you are a sole proprietor, you’re taxed as a sole proprietor. If you are a corporation, then you are automatically taxed as a C-Corp. That is your default tax status. But if you’re an LLC, there is no default way of being taxed. So if you are a single member LLC, then you are automatically being taxed as a sole proprietor. If there are multiple members in your LLC, then you are taxed as a partnership. S-Corp is an alternative tax status that is a way for you to say how you want to be taxed. For certain reasons a LLC or a regular corporation can say I don’t want that default status, I want to become an S-Corp.
Dalia – Question From A Group Member:
Baraka Alam- What Is The Average Cost Of Hiring A Legal Attorney?
Joey – It depends on what you want your attorney to do. So if you are wanting to form a LLC or a corporation, or some type of business entity; that would be somewhere in the ballpark of $1,000. Just to get that started. There are other options, such as Legal Zoom. They are cheaper than hiring an attorney, but I have heard great stories on how that worked for them, and I have heard horror stories. And the reason why is because usually what they are doing for you is asking you to fill out a form and they file it for you, they don’t really antilize stuff like an attorney would. You have to keep in mind, because their stuff is so cheap that they make money up selling you during the process. So a lot of people who are now my clients came to me because they used legal zoom and they kept getting phone calls saying they need to do more things. So my LLC package is $699. If you are wanting to form a LLC, there is a lot you can do without needing to hire an attorney. There are 3 parts to getting that LLC. First is filing the paperwork with the state that you need. That can be something you can do yourself, you don’t need an attorney. Different states make the level of complicated different. Second would be getting an employer identification number or an EIN. This is basically a social security number for your business. So even if you’re a single member LLC, you might not need an EIN. You should still get one, because it allows you to use that number instead of your social security number. That is free to apply for; it does not cost a fee.
Dalia – My recommendation if you don’t know what you are doing or you are busy, instead of wasting time trying to figure out if you’re doing it right. I would recommend hiring someone to do it for you.
Dalia – Question From Group Member:
Brittany- I've Heard That Cinderella Isn't Trademarked Although It's Disney Because It Was Originally An Older Story. Is That True? Does That Mean I Can Use Cinderella As A Tag To An Item That Does Not Depict The Disney Character But Has The Cinderella Colors?
Joey – A lot of the Disney stories are built off public domain. Technically your probably OK, you’re not violating anyone’s protected copyright that nods to that original story. The question to ask is “is this a risk that my business is worth taking?”
Dalia – Question From Group Member:
Daniela Pinaud- How Can I Protect My Original Illustration?
Joey – Unless you are using it for branding purposes, you would probably want to protect it by copyright. The interesting thing about copyright is as soon as you create something that can be protected through copyright laws, you automatically get copyrights protection. The problem is that you can’t do anything with the rights that you have until you register the copyrighted work. So if you really wanted to protect that from other people, what you would want to do is register that illustration with the copyright office. Copyright office is more DIY friendly when applying for a copyright registration than a trademark registration. It is fairly basic as long as you want to copyright basic fundamental things.
Dalia – I Heard That Some People, In Order To Save Money, They Will Copyright Multiple Images Under The Same Registration. Is That True?
Joey – You can. In that instance I would have an attorney help you. It would be worth paying for an attorney to help get it through, as to oppose to paying individual fees for each of them. You can apply for multiple variations of work at once, but there are various rules that you have to follow. In order for that to work, all of those works have to be unpublished. If you have them published or have already shown those works to people, you have to do it one by one. If your business is working on the summer line of X, it’s helpful to kind of get all of that stuff ready at the front end. And then before you push play on launching your website, you have applied for it all at once in the copyright office. The exception that might apply to some of you would be photography. Even if a photograph has already been published, that could be grouped in with larger amounts of work. That’s not just photographer friendly that is friendly for everyone who has product photos. The picture of your product is a separate thing that can be protected through copyright.
Dalia – Question From Group Member:
Stacey Hsu- "I Tried To Trademark My Biz Name Years Ago But It Was Denied For Being Too General. Blah"
Joey – One thing to do is work with an attorney to try and strengthen that application.
If you’re just starting, your business name is not an asset yet. The perfect business name in the world, wont drive you sells. I have found that a business name can help your business but it doesn’t solve anything. It helps build that brand reputation, also helps when people hear your business name, it helps people figure out what it is your business does.
I am putting up a link to ask.indiecreativelaw.com. It is basically a FAQ for all the different categories of legal topics that I cover. Underneath the bullet points will be the most popular questions I get. Then there will be a brief answer followed by a link to a blog or video where I go more into detail about that topic.
Want more information regarding copyright infringement? Then click here to view my blog about the different types of copyright infringements and how to handle them.
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