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Episode 07: What You Need to Know About Keeping Your Business Legal with Jamie Lieberman

How much do you know about the legal side of your business?

This is something that most online businesses owners avoid simply because it can be incredibly complicated.

In this episode, I am talking with my very own lawyer!  Jamie Lieberman from Hashtag Legal is talking with me about the financial rewards and potential legal risks that can come with being a creator, an innovator and an entrepreneur.

Jamie Lieberman, the owner and founder of Hashtag Legal, has been a practicing lawyer for 15 years. As an experienced entrepreneur, Jamie understands the unique needs of business owners at different stages in their organization’s growth. Today, she partners with clients across verticals including influencer marketing, creative services and e-commerce. She has a deep commitment to making legal accessible and regularly speaks about legal matters, the art of negotiation and entrepreneurial topics at leading industry events such as Alt Summit, Podcast Movement, and FinCon and as an expert source for media like Digiday and Forbes. You can also catch her as a co-host on The FearLess Business Podcast.

In Today’s Episode We Discuss:

  • Why creatives don’t usually want to deal with lawyers
  • What a sole proprietor is
  • How to know when to set up an LLC 
  • What I wish I knew at the beginning of my business
  • What policies you need on your website
  • The purpose and importance of Terms of Use and a Privacy Policy
  • Who to talk to about business insurance
  • The difference between trademarks and copyrights


Jamie makes all of this information so easy to understand, so I am really grateful that she was able to answer so many common questions.

I really hope this conversation encourages you to understand the legal side of your business more or start setting up the items you may be avoiding!

Don’t forget, if you’re ready to get started creating digital products and take your business to the next level, download my FREE Digital Product Toolbox!

Talk soon,

Monica

Resources Mentioned:

You are listening to the Empowered Business podcast, I’m your host, Monica Froese, a mom of two and your secret weapon to creating a six figure digital product business.

I’m on a mission to help 1000 women make 100000 dollars a year. That’s right. One hundred million dollars towards financial independence for women. As an online business expert, I am teaching you everything I know right here week after week so you can join us on the journey to 100 million dollars. Sound good. Then let’s jump in.

 

Welcome to the Empowered Business podcast, I’m so excited for today because it is my very first interview on this podcast and it is with a dear friend of mine. Her name is Jamie Lieberman, and she is the lawyer that I use in my own business. And she is just amazing. I cannot say enough good things about Jamie. She has a wealth of knowledge and she really knows how to take the most complex legal issues and just make it easy to understand. And she does it in a way that’s not intimidating. So before we dove in to today’s episode, I just want to tell you a little bit about Jamie. Jamie is the owner of Hash Tag Legal and has been a practicing lawyer for 15 years as an experienced entrepreneur. Jamie understands the unique needs of business owners at different stages in their organization’s growth. And today she partners with clients across verticals including influencer marketing, creative services and e-commerce. She has a deep commitment to making legal accessible and regularly speaks about legal matters, the art of negotiation and entrepreneurial topics at leading industry events such as summit, podcast, movement and Vinken, and as an expert source for media like Deji Day and Forbes. You can also catch her as a co-host on the Fearless Business podcast. And truly, she is one of the most fearless female entrepreneurs I know. And I’m so excited to dove into all things legal will answer your questions like trademarks and copyrights. And do you need terms of use?

 

We even touch on business insurance. So without further ado, let me bring Jamie on. Hi, Jamie. Welcome to the Empowered Business podcast. I’m really happy you’re here with us. I’m so excited. Thank you, Monaca. Me too. OK, so Jamie and I have known each other for a very long time, so you might hear some fun anecdotes about stuff that we’ve experienced along the way. And Jamie is an entrepreneur. I like to think of her as a lawyer for entrepreneurs. Is that how you see yourself? Yeah, I think so. OK, so can you tell us a little bit about yourself? Like, I know you’ve been practicing for a long time and how you ended up helping entrepreneurs as a lawyer?

 

Yeah, so my name is Jamie Lieberman and I am the owner of Hashtag Legal, which is a law firm that works with entrepreneurs, many of whom are in the online space, many of whom are either creating products or their services. They tend to be women, although I do have some wonderful male clients I don’t want to forget. I’ve been a lawyer for 15 years, so that does feel really long, especially because I had a career before I was a lawyer, which just continues to age me. But I started off my career in a very traditional way. I was big law in New York City. I worked for the federal government and all of those things are exactly what you’re picturing in your head. And it was fairly soul sucking. So after I had my first son, I left. I actually I went back. I practiced for a little longer, realized this doesn’t work. I was never going to see my son. I did not like how I felt pulled in these two directions where I had to choose. I like to make my own choices. I realized autonomy. I know that will resonate with you, Monica.

 

It doesn’t say I don’t think I realized how similar stories actually are until you have seen this.

Yeah. Is a really big deal to me. And so I actually just had a moment where I had gone back and had a particularly awful day. And I looked at my husband and I was like, I’m done. And he goes, go be done, go figure it out. So I gave notice. I stayed for a while because I was working at the government. They had to find someone to replace me and I was fine with that. But when I was doing that, I was a blogger many, many, many years ago.

I knew that either you were a blogger. I was. I had a blog spot and a live journal. Oh, OK. I had a live journal and an open diary, too.

 

I blogged about living in New York City like it was just a very fun nobody. Monitise blogs back then. It was just a way for me to, like, take pictures and write goofy stories about living in New York. And it was fun and it got really popular. And so I knew the blogging community at the time, which really was not much of a community at all, but I sort of understood an online space. I left that for a little while. And then once I had a baby, I was no longer fun in New York City. So I tried to blog about being a mom, but it didn’t work. That wasn’t a fit for me. I just didn’t I don’t know. That wasn’t my voice. And so when I left my job, I just freelance like a crazy person. I started another blog. I was a professor at a law school, and I was just kind of finding my way. And because of that blog, I ended up taking a writing job with a company which then referred me to a company that doesn’t exist anymore. It was called Taipei Parent. That’s where we met. Yes. And so I started working for Taipei, doing all kinds of crazy things for them, some legal, some not. And then the old founder of Taipei, she said, how do you think you want to give a talk about legal issues for bloggers? 

And I was like, Huh, yeah, let’s figure out what they are. That’s I. So where hash tag legal was born, because nobody was talking about those legal issues in the online space and from that I gave that talk sort of taking on other legal clients, I started giving up some of that freelance work I was still teaching. I started to realize that there was a gap in the space for lawyers who speak like humans and who are just regular people.

 

Would you say there’s still a gap? Because honestly, I get asked all the time about, you know, legal and financial, as we talked about, that those are like the hot topics everyone wants to know from me. And I don’t know anyone like you, but sometimes I’m like, I don’t really want to recommender only because I don’t want them to like being in conflict with me. I found I would never have found me first. You always come first because sometimes, like someone might be really close to that line of like you don’t really know what their intentions are and it’s like she’s mine.

 

Thank you. I hope to be yours forever. There really is a disconnect. And I think it’s because attorneys just generally speaking, are just really we’re taught a certain way like that. I had to smush that. How I was taught to be a lawyer. I had to push that away and just realize I need to be a lawyer the way I need to be a lawyer. And that just comes naturally to me. And I think it doesn’t come naturally to a lot of attorneys.

 

Sometimes I think that one of the biggest things is an online business. We’ve never, ever, in the history of business been able to start something with very little resources. And because of that, I feel like people who started traditional businesses before online business were a thing, had more access to lawyers, I guess, because when you start an online business, you don’t necessarily have money behind you, a lot of us, don’t you? So finding a lawyer who can distill it down and talk to us in a way that, you know, on topics that we don’t know anything about, I was at a little bit of an advantage because I think coming from corporate and having my MBA, I was exposed to a lot of the terms and stuff, and I knew enough. But a lot of people who started online business, you know, they don’t have that background and a lot of times are creative.

 

They’re not exposed to these business words. There’s a lot of fear around it. And I think that fear is rightful because, one, there’s a reason there’s a stereotype about lawyers. Like I will tell you, the worst part of my practice is when I have to deal with other lawyers. It’s a nightmare. It’s the worst. They make everything difficult. I hate it because it’s just so like, come on, why are you fighting me over this one word? Like, we’re literally taught to be adversarial. And I think that so many lawyers have that ingrained so deeply in them that they lose sight of how to actually, like, sit down and counsel because our work counselors, that’s literally what we call a counselor. And to really be there as advocates like lawyers, can be profit centers if done correctly. And so, so many, I think entrepreneurs, particularly the ones who maybe start it up on their own or maybe did it on a small budget and didn’t have the budget and did stuff by themselves, they feel judged by lawyers. And that’s just a key tenet of our practice where I’m like, no judgment. I don’t care what you did before. We’re going to figure this out moving forward. And they’ve had a bad experience with attorneys. And that’s really why I think they avoid lawyers so much. And frankly, lawyers hold themselves on this bizarre pedestal that they’re better than everybody. And so I think most people would rather not deal with it.

 

You know, that brings up a really interesting situation I had before I started working with you when I went to go for my LLC, which is actually going to be my first question, because I get asked this a lot. I formed my LLC early. You know me, I’m a fact finder. I like to have all my ducks in a row. And so I think I made like fifty bucks and I was like, let’s just get the LLC done so that it’s not a thing because I was very confident I was going to make this a thing. So I’m like, well, I’m going to have to be an LLC eventually. I’ll just get it done. And I did it myself and I remember that I just had a couple of, like, lingering questions that were like legalese things. And I went to a local attorney and it was a guy he treated me like I was dumb. And honestly, I you know, I don’t feel like I’m dumb. I’m not a dumb person. But he thought this was just kind of like, you know, look at this little girl who is going to start this online business chuckle, chuckle on the side. And little did he know. He didn’t take it serious. And I think that that’s really important when you are starting an online business. I had fifty dollars behind me. That’s it. But I was just confident I was going to do something with it. I wanted someone to take me seriously and believe that this was going to be a thing. Of course, you know, and that’s what you do. Like every question I’ve ever came to about, I never felt like you thought you’re silly. Why are you asking me this?

 

Thank you. Because there are no silly questions. You have to ask those questions. They’re really, really important, just like everybody has their expertize, like. Right. We’re creating businesses. So we’re really awesome at something. And so it happens that I’m an expert as an attorney. And so what comes naturally to me, like when to form an LLC or the difference between a trademark and a copyright is to me so second hand the same way that the developer that deals with the back end of my website, that plug in is the most Fahn thing in the. It’s me and I feel like I’m my nine year old could do better than me, but that’s his expertize. But if I were to ask him what he copyright and trademark is, he couldn’t tell me, but he sure as heck could tell me why. My website is slower, it’s crashing or whatever the case may be. So knowing full well that, like, I have gaps of knowledge to it just so happens that this is my area of expertize and my job is to make it as easy as an accessible to you as humanly possible. That’s the mission. That’s the goal. Right.

 

So that you feel comfortable and empowered to say, I know when I need to call the attorney or no, I think I can handle this myself, which leads me to like I’ve been working with you long enough that I know the answers to these questions now because you have disseminated them for me so nicely. So I’m going to Rapid Fire some questions that I got from my group. So my group is a mixture of people who I would say they’re either brand new to online business and they’re looking to build their first digital product or they’re a blogger who’s like, I need to make more money and monetize my expertize a little bit better. And they’re creating a digital product. So in my experience, bloggers are pretty good with understanding that they need like terms and stuff. But the business formation side is a little bit harder for them. So I’m going to give a mixture of those kind of questions. And the first one is, how do you know when to become an LLC versus a sole proprietor?

 

Great question. So I like to look at this topic on two levels. One is risk assessment. You have to think about how risk adverse you are, because the primary reason that someone decides to form a corporate entity and when they say entity, I just mean you’re actually forming a company. You can hold yourself out and do business as yourself and you’re a sole proprietor. You don’t actually have to do anything other than report your income on your taxes. And that’s great. If you’re in a partnership, same thing. You will need to come together and form your partnership, but you’re not filing paperwork with the state. Most people, when they decide, OK, I’m ready to be something more than that sole proprietor, I want to form an entity or a corporation or something. I’m filing some paperwork with the state where I do business for most people in the online world. But the state where you live, I know a lot of people want to talk about Delaware, Wyoming, all those things. But for the most part, typically speaking, you’re filing where you live. I should say this is all just information. This is not legal advice. Talk to your lawyer if you have questions. So when do you format the typical reason that someone and I’m going to talk about two different types of entities. There’s your corporation and there’s your LLC. An LLC is a limited liability company. They’re very easy to form. Most people like them because they have advantages of and the reason why people form LLC limited liability. And what that means is your business is separate from your personal. So your business assets do not mingle with your personal assets. And so if you have a conflict or an issue in your business, your personal assets are safe.

 

You don’t have to worry about if somebody sues you that they’re going to come after your house or your personal bank accounts or your car that’s held in your name. It’s just your business assets. And so that’s the primary reason people form an LLC, is to separate out those assets. And then you don’t have to worry. You’re like, my house is fine even if I have an issue in my business. So it is that risk assessment that you have to make for me. I wanted that stuff separate immediately. I didn’t care. I hadn’t made a dollar yet like you with your fifty dollars. You don’t even have to make zero dollars. You have to make dollars at some point or your LLC will get shut down. But you have time. And so I like to set things up from the beginning. It’s easier. Like you said, you’re not backtracking. So if you can, I think setting up an LLC as soon as humanly possible is the way to go. If you are ten years in business and you have not set up an LLC, you are not allowed to panic. You absolutely can do that going forward if you want to. And so that’s the primaries. And there’s also certain legitimacy to forming an LLC, some people more in the service business, but still only want to do business with an LLC. Frankly, if you’re creating products, whether they’re physical or digital or you’re using suppliers, you may want to only contract in an LLC name. So there’s other reasons to do it. But the primary reason is that limited liability.

 

So side note about this, what I wish I had known when I formed my LLC, even though I knew it was going to be something, why in the world I named it Redefining Mom LLC. I and I will tell you, as far as I understand, maybe this is a question I’ll ask you after the call. Changing an LLC name is not the easiest thing in the world. You can do it. I mean, doing business as but still on the contracts and stuff. Or when I go get my new car, they’re like, where do you work? I have to give them redefining my office. And it’s not like I’m ashamed of it at all because I am not. But, you know, you get Snicker’s about it like, oh, that’s cute. You know, the whole like that cute thing. And it’s like if only you knew what I really do and how successful I can be with such a name, I would have made a more encompassing L.L.C. name, something like I’ve thought about, like Froese media or something like that. So I mean, I tip for those out there who have not. Form their alphabet, just spend some time thinking about the fact that you’re going to be stuck with this for a while.

 

You can change the name. A lot of states just require a form to change the name. But then you have to obviously do all the extra work. You’ve got to go to your bank you to make. That’s the difficulty. That’s the annoying part, particularly if you’ve been in business for so long. You’re like, oh, it’s doable, but it’s yeah, been changing my address.

 

And I just went through all of that. And the IRS is not my favorite place to have to call because. No, they don’t really understand what you’re asking. Yeah. So if you haven’t formed it yet, just keep that in mind. Pick something that can last that you’ll be like, oh boy. Yeah, down the road. OK, so the next big question that I get and I get this one the most because of the fact that I teach digital products, which is terms. So I personally have had you do my terms of use, my privacy policy. We have earnings and testimonial disclosure and affiliate policy. We probably have other things too. But those are the ones that come to mind. So naturally, because I’m so type about making sure that everything is out there, people who I’m teaching are like, wait, do I need all of this? And I don’t give legal advice, although I strongly recommend they do have it. So it does overwhelm new business owners. So what out of these policies do you need on your website, especially if you’re going to sell digital products before you sell your first digital product? What should you have in place?

 

So by law, you’re required to have a privacy policy that’s your bare bones minimum. If you are collecting data, which you are doing, if you’re selling digital products, then you have to tell your users how you are collecting that data. Privacy is no joke. It is super complex. It is an area of law that I practice in frequently. For your standard website owner, it is totally doable to get a privacy policy that covers you that does not break the bank. However, you do need to have an understanding of how you collect data. So that really goes down to your third party providers because for the most part, you’re not building out your own store. You’re using other providers, whether it’s through Commerce or Shopify or stria, just understanding how they collect data and your interplay with that, because at the end of the day, you’re the data collector, their data processor, because you’re the one whose website it is. So do not launch start without a privacy policy because you’re required to have one. I highly recommend talking to an attorney just to make sure that you’ve covered yourself in the privacy policy. I know there’s loads of like free privacy policy generators that float around. I’d rather you have a free one if you don’t have the dollars, but if you can’t talk to somebody, it is good to kind of get your privacy ducks in a row. That is the only thing that’s required by law. However, I highly recommend terms of use that is without a doubt a best practice. It is going to help you down the road, particularly with digital products, which sadly get copied. So your terms of use can help you in a number of different ways. One, they can help you protect your intellectual property, intellectual property being your trademarks and your copyright.

 

They also can have your purchasing policies, your refund policies. That’s going to be key with digital products, particularly the more complex the product is that you’re creating and the higher dollar amount of your digital products. That’s key to. So your purchase that your refunds, your intellectual property. There are also, if you’re an expert, creating a digital product like me as an attorney, I’m a licensed attorney. I have to have very clear disclaimers on there saying this does not form an attorney client relationship. This is not legal advice, all of those things to comply with my license. There’s loads of other licensed professionals who have to think about this. Fitness professionals, nutritionists, food medical providers like you have a license. You need to make sure you have your disclaimers in place. You also should be focused on warranties like what kind of warranty are you providing this as is are you providing this with certain warranties, things like that? And then, you know, the assumption of risk saying if you use my digital product and something bad happens to you, like that’s not my fault. That’s your fault. And I’m not going to be liable for that. So that’s just sort of an example of a number of things that we put in terms of use. And this, again, goes back to what I talked about with the see, this is risk tolerance, right? There’s no set rule. Many clients come to me and they’re like, what should I do? And my answer is, I can’t tell you what to do. However, I can assess risk for you. And so I have some clients who are extremely risk adverse. And so I’d say to them, yeah, I’m one of them.

 

I am very risk adverse. Yeah.

And so I know you now so I can go to you and be like, Monica, don’t do that. That’s going to make you feel uncomfortable. Whereas I have some other clients who are like, you’re telling me this is high risk, let’s do it like this. And that’s okay. There’s no good or bad, but the more I get to know a client, the more I work with a client. I can make those assessments better. At the end of the day, with legal we’re just assessing risk. We’re just deciding where is my risk tolerance and what can I do. And so with terms of use, you’re really just like you’ve got your LLC. Your next layer of protection is going to be those terms of use, some people then get insurance. That’s another layer against that risk. And so you’re stacking to make yourself having these sort of building blocks in place that are going to minimize the risk in creating a business.

 Ok, I was going to go to trademarks and copyrights, which we will, because that’s a big one. But one of the other things I hear a lot and actually of all the things I was risk adverse about, I had my elfy, you know, I had my policies in place. I was slow on getting the business insurance, mainly because I feel like it was very overwhelming. To be honest with you. I still don’t even know what kind of business insurance I have, except you read it, said it was great and I went with it. So what kind of business insurance should someone online, particularly a digital product seller, be looking at?

This is a hard one because you really need to work with your broker. And we did that right. We asked them the right questions. And your broker is your expert. That’s the beauty of the broker. The problem is brokers are not used to dealing with online businesses. It’s much like lawyers and accountants where you’re like you’re the professional and the like. I don’t know what you saw. So I tend to recommend that when you go to your broker, media insurance is a great place to start, particularly that’s going to help you cover you and your intellectual property, you know, a general business liability kind of umbrella and then errors and omissions. You’ll need to talk to your broker about that. But these are some of the key words you want to be saying to your broker and will tell you the biggest piece of advice with insurance is make sure your insurance covers what you do, because a lot of people just go buy a general business, liability insurance and everything they do is excluded from it. Intellectual property is completely excluded from most, not all, just general business insurance. You need a whole other thing for IP scene with employees. So if you hired employees, you need to make sure that your insurance covers your employees, not just workers comp.

I’m writing this down, Isatou. I don’t even know. I mean, because I got my original policy before I had employees.

Yeah. So like employment discrimination, things like that. That’s something to think about. A lot of people, you know, sort of haven’t thought about that. And so it just really depends on your business and it also just depends on what you’re selling because again, insurance there to minimize your risk and the last thing you want to happen is have a controversy or some kind of claim against you in your business. You go to your insurance company, they’re like, yeah, we don’t cover that. Remember that insurance companies, their business is not covering claims. So you have to be really vigilant and talking to your broker to make sure that the things you know are the most risky in your business are covered under those policies. As best as they can be covered, some stuff just can’t be covered, unfortunately. So that also goes back to having an understanding of the places where you do have certain risks, not just to sort of the basis of your business. Why talking to a lawyer is good, like my whole job is to just be like, where are we going to get sued and how could avoid it? And that’s why, frankly, having a litigation background like I did helps me because I know where people are going to get sued so I can sort of poke those holes. So I have a strategy session, sit down with a lawyer for thirty minutes and just say, tell me all the places where things can go wrong, not to scare me so that I can get those building blocks in place so I can minimize a lot of those risks as best as I can. I mean, you can’t avoid all of them. Controversy will happen when you have a business, but at least you’ll know you’ll have a good foundation.

I’ve had lots of copycats come my way, no matter how many policies you’ve made. My terms pretty ironclad, were very specific and who will even allow in our courses. And yet we still run into issues. So I always say you can’t avoid all the bad apples like they are everywhere in every type of business. You have to accept it if you are looking for business insurance. What I did was I went to our actual local agent who does our home insurance. He connected me with someone who does business insurance, and I spent an hour on the phone educating him about what an online business was. And then I brought in Jamie to read the policy to make sure that it made sense because she knows my business and that’s how I got mine. But it was a process. I felt better once I did it.

Yours did a beautiful job. I know you and I know you came to them with all the information which they needed. And it does require advocacy on your part, particularly with brokers who are like, yeah, you’re fine. No, no, no. Answer my question clearly. But your broker did a beautiful job like you have actually one of the best the system give one of the best policies I’ve ever read.

 

I know you did tell me that when people ask me where did you hear policy from them? Like, all I know is it’s great. It’s good. Yeah. Yeah, for sure. So we’ll end with this because I have a feeling you have a lot to say about it, which is trademarks and copyrights. Oh my God. This is I mean, I actually think I have a pretty solid understanding of it at this point, but a lot of people lump them together. So first, like, what’s the difference and do we care enough?

 

I love it. So the short answer is we care. So intellectual property, which I sort of mentioned before, encompasses three areas, trademark copyright patents. We’re not talking about patents. I don’t practice patent law. I have a wonderful patent attorney that does that. I know that I refer people to. One of my focuses in my practices is trademarks and copyright. So trademarks are source indicators you have to think about. Trademarks from the consumer’s perspective, they tell you who makes the product that you’re holding. So when I get a Snapple, I know what quality to expect. I know what the packaging is going to look like, because as a consumer, I realize and equate something with Snapple that’s the trademark. The trademark tells the consumer this is who made the product or service that you’re consuming. So a trademark is a brand name, a logo. It can be a smell. Believe it or not, the smell of Plato is a registered trademark. I know it indicates source, though, like if you smell Plato, you know, you’re smelling Plato.

 

This is very true. I never thought about it, but that is very true.

 

The red soul of a Lobatón that is a registered trademark. Because when you see that red soul, what do you think? That’s a Louboutin shoe. So there are loads of ways that you can indicate source the most common, our name and logo. In my practice, it is very hard to register a smell or a red soul because a lot of times those are just properties. But when they become so famous and so your brain immediately goes the Valentino rocks, that is a specific shoe that they just got trademark protection for the shape and the design of that shoe, because it is such a clear source indicator. When you see it, you’re like, oh, that’s the Valentino rock stud. You just know. But for our purposes, we’re really checking about names and logos. And so when you think about naming a product, you have to sort of make that first decision. Am I going to make a name that is going to be descriptive so everybody knows what it is? Family budget spreadsheet.

 

Yep. Which do you mean? For me, we’re not trademark name because it’s descriptive.

 

Right. And there is value to naming your business or your product or your service for what it is, because then people know and you don’t have to educate them.

 

You don’t have to worry about it. Right. But the more descriptive or generic it is, it is not usually eligible for trademark protection. So if you pick a name that’s a random word, an arbitrary word like Apple for computers, you’re going to have to educate the public who the source says. And so that is a highly trademarked name. Also fanciful words, Exxon, Google, Kleenex. These are names that meant nothing in words that didn’t exist until these brands made them make something. Those marks are much more protectable or suggestive marks. Marks suggests something about the services like Sprint for data services. Right. You think fast, but it doesn’t describe what it is. So those are more protectable because you actually have to work as a brand to teach the public what it is that you do. Neither is right or wrong. But just knowing that when you choose these names, if you choose something more generic or descriptive, you’re probably not going to go down the trademark path. And that’s OK. If you are choosing something that has the potential to be trademarked, you really want to make sure that you’re not infringing somebody else’s marks. So having a clearance search when you pick that name and it’s not as simple as Googling it, just because the social media channels are available or the euro is available does not mean that it’s available. Somebody may still have that registered trademark when you choose a name for your business, for your brand, for your company, for your service, what, your product, whatever, get cleared is really key. And working with an attorney who’s an experienced trademark attorney is smart because no one wants to change all their branding.

 

I know people that that has happened to even phrases are trademarked. I was looking at I am empowered, but, you know, trademarks have classes and so it doesn’t necessarily mean you can’t use it. But I think that was one of the things I covered with you because I was going to put it on a shirt for a photo shoot. And I’m like the last thing I want, but it’s all over my website and then be told, oh, now I got to change my entire website because I have it on my shirt.

 

Right. And so one important thing, too, is when even if somebody has a registered trademark like I am empowered is a great example of that. If you’re not using it as a trademark, you can still say it. So it’s not like you can’t say it, but if you try to use it as a trademark, meaning you are attaching that name to a good or a service or some kind of revenue attached to it. So if you wanted to create the I am empowered, for example, mastermind, then that is really where things can go south. I don’t want to go down a rabbit hole of this because you see fights about this all the time with hashtags and this and that. However, it is just important that however you’re using a brand name in connection with goods or services. Just make sure you’re not infringing on somebody else’s mark who may be using it in connection with goods and services. The names don’t have to be identical and the goods and services don’t have to be identical, the same or similar. There’s no black and white test for that. So it just really comes with experience. An experienced attorney can look at a trademark and say, yeah, that’s too similar. And I’ve had a lot of clients push back and be like, there’s nothing similar about that. And I’m like, I get where you’re coming from. The Trademark Office is going to feel differently now.

 

We just ran into one with redefining mom similar. So redefining versus redefined. Right. Luckily, Jamie, court that for me because I was. I’ve have known someone because you have a responsibility to defend your trademark once you have it, and so that’s another reason a lawyer is very helpful. She monitors my trademarks and tells me if someone’s trying to file one that would be infringing on the one I have. So I don’t have to worry about that. Oh, it’s a real quick copyright.

 

Copyright. Yes. So copyright is different than trademark copyright are the rights in works that you’ve created. So I’m going to use a photograph or a book. The minute that I take that photograph or I write that book and I’ve created it. It’s fixed in a tangible medium. That’s the sort of phrase, meaning it just exists out of my brain and on the paper. And it’s an original work I have and copied it. Or, you know, it doesn’t have to be the Mona Lisa, but it does have to be an original work to you. You own the copyright and that’s what it is. Copyright is just a bundle of rights, things you can do with original works that you create. You can display them, you can sell them, you can create other works from them, which is called creating a derivative work you can perform. There’s a whole list of rights that you have with a copyright. And so when you create something like a digital product, the actual product, you own the copyright. And it’s so long as like I said, you meet that test of you created it.

 

It’s an original work and it’s fixed in a tangible medium. The key with copyright is you have rights the minute you start using it. Same with trademark. However, your rights are not as strong unless you register those rights. When you register a trademark, when you register a copyright, you get a lot more rights and it’s much, much easier to defend when somebody is infringing or somehow using those works, either your trademark with your name or logo or the actual work that you’ve created or some version of it without your permission. That’s what infringing means. And so a copyright really is created as soon as you create the work. But the key is ideas are not copyright protected. So if you have an amazing idea for digital products, but you have not created it and you tell your best friend or maybe someone you thought was your best friend, and then that person goes and creates that, there’s not much you can do because an idea is not copyright protectable. So be careful who you share your information with.

 

That is great advice. Definitely be careful who you share information with and then with the copyrights like you’ve copyright it for me. Everything down to a blog post. We even have copyright at some of our emails. I have some real juicy emails I send out and they’re just ripe for the taking and we’ve copyrighted those. That means that I can actually get statutory damages right where you can’t get that if you don’t register it with the copyright office. Correct.

 

So with just a work that you’ve created, we’ll use a photo just for an easy example. So if I take a photo and I post it on my Instagram and then somebody takes it and puts it on their Instagram without my permission, they’re infringing my copyright on my photo. All I can really do unless I register that photo is say, hey, knock it off. If I am actually damaged, I may be able to get a little bit of money, but probably not. It’s very, very hard. And without a registration, I actually can’t sue for copyright infringement in federal court. So really, I’m just like, take it down, it’s mine and I have to go registered if I even want to. So if you register before the infringement and somebody infringes, you may be eligible for what are called statutory damages, meaning you don’t have to prove that you were actually damaged. You may not have lost a dollar, but because you have a valid copyright registration and then someone infringes, you could get money from them and you also could potentially get attorneys fees. So with that registration comes a lot more power. You have the ability to sue and frankly, there are not a lot of defenses to copyright infringement. So it’s really hard and often really expensive to fight with somebody who’s infringed if you’ve infringed on someone’s copyright, even if you did it by mistake. So we see this a lot with the cease and desist. People got photographs that they use or the like. Well, I thought I could do it. And you’re like, you couldn’t. So it is really important both when you’re creating a product to just sort of note, am I worried about people copying this? And if I am, perhaps it makes sense for me to register this and also your use of other people’s work. It is really important to understand your rights, their rights and what you can and can’t do. So knowing the boundaries of copyright is super important.

 

I would say copyrights are the risk tolerance as well, because I don’t think we filed a single copyright until like my big course was worth like half a million dollars. That’s how much it had brought in. Had my first very bad copy cat and we copyright it and I remember how fast they backed out. Your defense for me was so much easier because you’re like, listen, here’s the copyright. And it was like word for word. It was ridiculous. Please don’t do that for everyone that’s listening. But, you know, at that point, I was like sold on the copyright. So I’m like, you know, when you’re in the business, an online business and you’re creating content constantly, whether it’s free content or paid content, this is your livelihood. Like you have a responsibility to protect that for yourself. At this point, what I create, like supports my family.

 

So I’m going to make sure that I’m doing. Illegal things to make sure that no one can just swipe it from me, and I remember thinking at that point was like three years of hard work, that this person just came in and copied and pasted. I was like, oh, no, that is wrong. You can’t do that. Of all of that. I mean, I’m passionate about all this, but I’m actually I feel like copyright and trademark are the things that people sort of shelve. And they’re like, if you’re going to spend all this time creating content, protect it. It’s just part of doing this online business thing. And you’ll feel much better about it when you find out and you will find out if you are doing original things, someone will copy you. It will happen. It will be a punch in the gut. And you’ll be very glad that you listen to this podcast and did what you needed to do to protect yourself because it happens.

 

I agree. And I can’t stress enough how, particularly if you’ve created a name for yourself and then suddenly someone pops up with the same or similar name, you have to start looking into it because I have so many clients who come to me and they’re like, I never thought they’d get that big. And I’m like, there’s nothing we can do at this point because you didn’t register it and you let them exist with you for so long. And it’s just an uphill battle. So I do agree with you. If you’re going to invest the time, effort and energy into creating something, it’s worth, at minimum, the conversation, the risk assessment with a lawyer who can talk to you about the pros and cons of it. And I will tell you, like there are times client come to me and I’m like, no, let’s not do that. That’s not a good use of your money. Like, find someone that you trust who is going to say to you, like, that’s not the right place to put that budget. And that’s really the way that you can make these judgments. You don’t have to do everything, but it’s different for every single person. So if your friend did it one way, that may not make sense for you, get the advice that specific to your business.

 

I love that. Well, thank you so much for all your expertize. I always love talking to you. Thank you. Can you tell everyone where they can find you except not copycats, as this doesn’t represent copycats, but if you are being copied.

 

Exactly. Or you’re doing your own thing.

 

So my website is hashtag all spelled out Dasch legal dot com. And if you actually go to hashtag dosch legal dot com IP, we have a really cool free download on copyright. So it tells you like how to make sure you’re using other people’s work when you may think about copyright registration. So I’m happy to have everybody go check that out on Instagram. And I do give a lot of information on Instagram or hashtag underscore legal. And if you want to email us, it is info at hashtag spelled out Dasch legal dotcom.

 

Awesome. And we will, of course, put all this in the show notes for everyone so that they can get access to it. Well, thank you again, Jamie. It’s been very fun talking. Monic, I love talking to you. Thank you so much.

 

Thanks for tuning in to today’s episode of the Empowered Business podcast. If you’re ready to get started creating digital products and take your business to the next level, download my free digital product toolbox, head to Monica Fros, dotcom or slash tool box to grab it. As always, you can find all of the links and information mentioned in this episode at Monica Fros Dotcom forGood podcast for you right here again next week.

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