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My Top 4 Legal Tips for Online Businesses

woman preparing to look up top legal tips for online businesses

My top four legal tips for online businesses. In this post you’re going to get an idea of my top tips when it comes to disclosures, copyright, and ideas.

Disclosure Requirements Apply to All Media.

First, remember that disclosures apply to all media. That means it’s not just for sponsored posts on instagram but also emails, blog posts, videos, photographs, anywhere where you’re talking about something and you have a material connection to that brand or that business — and remember a material connection can mean you’re getting paid, you’re getting free stuff, if it’s a family relationship — anytime there’s a material connection you have to disclose that to your viewer, your audience, your reader. And that disclosure should be conspicuous! That means it shouldn’t be hidden in tiny fine print at the bottom of a marketing email or affiliate email, it shouldn’t be at the very bottom of a blog post because someone might not scroll all the way down to the bottom of a blog post. Conspicuous means hard to miss.

Copyright Ownership Happens Earlier Than You Think

Next, when it comes to copyright, know this:

You own the stuff that you create by default. You don’t have to register it with the Copyright Office in order to own it.

(I say you own it and there are some exceptions when you’re an employee creating stuff for your employer.)

But for the most part, the default rule is you create it, you own the copyright to it, boom. You don’t have to mail it to yourself, you don’t have to register it — although, and that takes us to number three…

Copyright Registration Is Worth It

Copyright registration does have its benefits for a bunch of reasons. Like:

  • You don’t have to prove that you own it;
  • You can get statutory damages ($$$$); and
  • You can get your attorneys’ fees back.

Understand the Law of Ideas.

Finally, let’s talk for one second about ideas. An idea is just an idea.

Uber and Lyft: same idea.

Amy Porterfield and Jenna Kutcher both have online courses on how to grow your email list. Same idea.

What’s protectable is how you express that idea. What makes how you do it awesome? What makes it unequivocally you? Those little unique factors are probably what’s protectable about your idea.

So I hope that shines a light on my top four legal tips for online businesses and i’ll see you next time.

CONTACT COPYCATS YOURSELF WITH CONFIDENCE

An Online Brand’s Guide to Dealing with Copycats

Itching to contact that copycat, but not ready to go full lawyered-up-cease-and-desist, yet?

In this free resource, you’ll get:

  • A little checklist to run through before you contact someone yourself;
  • An idea of things that you can say; and
  • What NOT to say.

Click here for access.

How to Change a Contract After It Was Signed

woman researching how to change a contract after it was signed

Have you ever wondered how to change a contract after it was signed? I’m going to tell you two ways to do that in this post.

Contractual Do-Over

So the first way to change a contract after it’s been signed is to update that original agreement with whatever term you want to change, and then have everyone sign it again.

Your contract should have what’s called a merger clause.

That clause basically says “this contract is the full and final version of an agreement between us and supersedes all other prior versions.” In other words, this version takes the place of any other version of this contract.

An Amendment: Not Just for the Constitution.

The second way is to create an amendment.

An amendment amends the original version, only to the extent of whatever is covered in that amendment.

This can be good for things like

  • an amended payment schedule,
  • different deliverable due dates,
  • changing an event date (hello, 2020)

…anything in the original version that you want to amend.

Pretty easy, right?

So I hope that helps you to better understand two different ways to change a contract after it was signed, and I’ll see you next time.

CONTACT COPYCATS YOURSELF WITH CONFIDENCE

An Online Brand’s Guide to Dealing with Copycats

Itching to contact that copycat, but not ready to go full lawyered-up-cease-and-desist, yet?

In this free resource, you’ll get:

  • A little checklist to run through before you contact someone yourself;
  • An idea of things that you can say; and
  • What NOT to say.

Click here for access.

3 Lies Everyone Believes About Avoiding Copyright Infringement

Woman researching avoiding copyright infringement

Today I’m talking about the three big lies that you might have heard about avoiding copyright infringement.

You might think you’re not committing copyright infringement, but… you could be wrong. (Did you get that reference?)

In this video, you’re going to learn what every online brand needs to know about avoiding copyright infringement on the internet.

Lie number one: if I’m not charging anything, or making money from it, then it’s not copyright infringement. Right?

Wrong.

Copyright infringement is what’s called “strict liability.” That’s lawyer speak for: just doing the act is enough.

There doesn’t have to be any kind of intent to commit copyright infringement. You don’t have to make money from it. Just the act of copying is copyright infringement. There’s no requirement that you make money in order for it to be considered copyright infringement.

(Sorry.)

Number two: if I add a disclaimer, or tag the original creator, then I can’t get in trouble.

Wrong. So wrong.

(Apparently, I’m into quoting Mean Girls today.)

You’ve seen “I claim no rights to this music,” or “I claim no rights to whatever” in people’s posts, right? But, like I just said, you’ve copied it. That’s it. That’s the infringement. Just copying or using someone else’s material without permission is infringement.

And!

I’ve heard of several photographers who actually track infringement on social media, by the people that tagged them.

Using someone else’s photo without their permission, unless you properly licensed it somehow, is copyright infringement. Credit, or no credit.

Numero 3: If I found a photo on Google image search or on Pinterest, then it’s royalty-free or public domain, and I can use it, and it’s not copyright infringement.

No, no, no, no, no.

I had a client once that used a photo that he found on Google image search in a blog post. He got a big fat cease and desist letter from a firm that does volume copyright infringement work. That just means that they sent thousands of cease and desist letters — that is their bread and butter.

The photographers that they represent all register their photos with the Copyright Office. (Which is very, very smart.)

Then, they pay these firms to crack down on unauthorized uses. So this cease and desist letter asked for multiple thousands. Based on the Copyright Act, if someone infringes your work, and you’ve registered with the Copyright Office, you get from $750 to $30,000 in damages. He didn’t end up having to pay 30,000, but he had to pay something.

Hear me on this.

Google Image Search catalogs images from everywhere. They are not necessarily royalty-free. They are not necessarily public domain. Don’t look on Google image search for free images. Nope, nope, nope.

So the secret to avoiding copyright infringement online?

Use things that only you’ve created, or if you’re using something that you didn’t create, or posting something that you didn’t create, make sure you have permission.

That’s it.

So I hope that helps you to better understand the three lies everyone believes about avoiding copyright infringement on the internet. And I’ll see you next time.

CONTACT COPYCATS YOURSELF WITH CONFIDENCE

A Content Creator’s Guide to Dealing with Copycats

Itching to contact that copycat, but not ready to go full lawyer-cease-and-desist, yet?

In this free resource, you’ll get:

  • A little checklist to run through before you contact someone yourself;
  • An idea of things that you can say; and
  • What NOT to say.

Click here for access.

7 Things An Online Business Can Trademark Right Now

reading about the things an online business can trademark

Let’s talk about the things an online business can trademark.

“Trademark” isn’t really a verb, but we’re going to go with it because people use it a lot.

A lot of times people think that trademark just applies to a brand name or a logo. But there’s more to trademark than just those things, and that’s what I’m going to go through in this post.

So here we go: seven things that an online business can trademark.

1. Obviously, an online business can trademark a brand name.

So first brand name. This one is obvious, maybe it’s the first thing that you think of when you think of trademark. But your brand name — so your blog name, if you’re a blogger; your podcast name, if you’re a podcaster; maybe your personal name if you are a lifestyle personality, or if your name is your brand name — those things are all trade markable.

2. Logos, logos, logos.

Your logo, of course is another type of trademark. Nike swoosh is an obvious example. It is a symbol that signifies your brand. It’s different from just a graphic design that you use it in an artistic way. It’s different from an infographic — that’s too much information for a trademark. It is a symbol that your brand uses to represent your brand.

3. Product names.

I’m not talking about something like “red pen.” I’m talking more about something like JANE DOE’S SPARKLICIOUS RED PEN. You know, if you have a product name “the sparklicious something,” something more than just “red pen,” yes, that’s probably a trademark.

This can also include a course name trademark! Or a membership name! Those are your products, too.

4. Your flagship service.

If you have a package or a service that is your flagship service, and you offer that service under a particular name, then that name might be a trademark.

5. Slogans and catchphrases.

These are sometimes a little bit difficult to protect because they can be really descriptive. But if you use a slogan or catchphrase a lot in your branding, then yeah, that might be a trademark.

6. Your username or handle.

Wait, whaaaat?

Yep, your username — like on Instagram — might be protectable trademark. A lot of times, people on Instagram or Tiktok or wherever are using those accounts to provide promotional services for other businesses. That is a service that you are offering under that handle. And yes, the Trademark Office sees a difference between your name with spaces and your name without spaces. So yeah, your Instagram username, your TikTok username, might be a trademark.

7. Moving pictures, as something an online business can trademark?

We’re seeing video more and more and more, not just with the popularity of TikTok but on websites, too. Maybe you’ve got a really cool video of your logo coming together on your website. That moving picture might be a trademark. Think of things like 20th Century Fox spotlights — those things that you typically see in movies, those are moving, but they are certainly trademark.

Maybe you have a motion picture trademark in your video show! So add a TM to that if you have a moving trademark in your branding. (Can’t use an ® unless you’re registered.)

Hope that helps you understand some of the many different things that an online business can trademark!

CONTACT COPYCATS YOURSELF WITH CONFIDENCE

A Content Creator’s Guide to Dealing with Copycats

Itching to contact that copycat, but not ready to go full lawyer-cease-and-desist, yet?

In this free resource, you’ll get:

  • A little checklist to run through before you contact someone yourself;
  • An idea of things that you can say; and
  • What NOT to say.

Click here for access.

THE Telltale Sign You Have a DIY Contract (and why it’s bad)

creating her diy contract

The telltale sign that you have a DIY contract. In this video, I’m going to tell you about the telltale sign that I see that tells me you have a DIY contract, and why it’s really not so good.

Stick around to the end and I will tell you about my brand-spanking-new resource for content creators that will help you deal with copycats. I’m Maria Spear Ollis, lawyer for content creators, and this is the Spear IP show.

Before I get into that telltale sign, I want to explain to you what happens when there’s a dispute over your contract. Basically, if there’s ever a dispute, and something in your contract is ambiguous, that ambiguity is resolved in favor of the person who did NOT draft the contract. In other words, the contract is interpreted against the person who drafted the contract that is you.

So what’s the telltale sign that you have a DIY contract? Your defined terms are all jacked up.

What the heck is a “defined term”?

A defined term is that capitalized word in your contract. You usually have several defined terms, things like “Company,” “Deliverables,” “Services,” that kind of stuff. They have a very specific definition within the context of your contract. So the “Services” specifically means blah, blah, blah, blah, blah, blah, blah, blah, blah services, right?

So here is the problem that I see. Maybe you refer to yourself by your actual name in some paragraphs of your contract.

“Jane Doe will provide the following Services.”

Okay, fine.

Then you refer to yourself by something like “Company” and you say something like “Company has approval over all artwork.” Okay, well, you’ve referred to yourself as Jane Doe, you’ve also referred to yourself as Company… it might be a little ambiguous who “Company” refers to. So if there’s ever a dispute about approvals, now you have a contract term that says Company must approve all artwork. If it’s ambiguous, if it’s hard to determine what that means, it’s not going to be interpreted in your favor.

So that’s why it is super, super, super important to make sure that all of your defined terms in your contract, line up. That means being consistent in what you call yourself and how you label other things.

I hope that helps you understand the number one telltale sign that you have a DIY contract, and I’ll see you next time.

CONTACT COPYCATS YOURSELF WITH CONFIDENCE

A Content Creator’s Guide to Dealing with Copycats

Itching to contact that copycat, but not ready to go full lawyer-cease-and-desist, yet?

In this free resource, you’ll get:

  • A little checklist to run through before you contact someone yourself;
  • An idea of things that you can say; and
  • What NOT to say.

Click here for access.

Using Music in TikToks and Reels for Business

using music in tik toks and reels

Can you use music in TikToks and Reels if you use TikTok/Instagram for your business? The fact that I’m playing my son’s xylophone in the video above (instead of using music) might give you the answer!

But in truth, it’s a little bit more complicated than yes or no.

(At least for tik tok.)

By the way, that music that you hear in the intro to my YouTube videos, I purchased a license for that music.

And that’s not what I’m talking about today.

I’ve read the terms of use for TikTok and for Instagram. And I’m going to tell you whether you can actually use music in the background on your TikToks and Reels when you’re a business.

I am talking about the music that you see in a lot of Reels and a lot of TikToks either based on trends, or just because you feel like putting music in the background of a video.

Instagram (Facebook) and Music in Reels

Here’s what the Facebook company has to say about using music and videos. I’ve got those music guidelines right here.

“Use of music for commercial or non-personal purposes in particular is prohibited unless you have obtained appropriate licenses.”

Facebook Music Guidelines

…”Commercial or non-personal.” I would say that that means if you’re using Instagram or Facebook in connection with your business, that would be commercial or non-personal. And you may not not NOT use music, according to this policy. Which means you’re back to xylophone or whatever music you make up on your own, or music that is properly licensed.

Using Musing in TikToks (Legally)

TikTok is a little bit more complicated.

A long time ago TikTok was actually a lip synching app and it evolved over time. Because of its deep history as a music app, it’s got some arrangements with some music publishers. So there’s some music on TikTok that lives on there legally.

But here’s the thing.

The thing is that TikTok allows you to choose between a regular account, a “business” account, a “creator” account. Well, if you are a business on TikTok, you do not have access to a big bulk of music that’s available on TikTok. Instead, you’ve got access to a more generic sounds and music library (the “Commercial Music Library“), which allows businesses to use music. It’s royalty free, it’s all cleared. But it’s not as fun as maybe some of the trending dances. (Sorry.)

TikTok even says:

The Commercial Music Library is for any account that uses TikTok for marketing, advertising, sponsorships, endorsements or publicity, including official brand accounts, their promotional partners, NGOs and government organisations.

TikTok on Commercial Music Library

…”Their promotional partners.” Hmm. That might be you, content creator.

Here’s what you absolutely cannot do!

You absolutely cannot go on your phone or your computer and play, you know, the latest top 40 hits from your computer, do a little dance, create a little video on your TikTok account and then upload that to try and get around that music requirement.

No, no, no, no, no, no, no.

And here’s where it gets kind of confusing.

A lot of content creators are businesses, but they might have a creator profile and not a business profile. So if you have a creator account and not a business account, you’ll still see some of those fun songs. Your account won’t be limited to the Commercial Music Library. But you’re using TikTok in connection with business and promotion and marketing, because your business is content creation, and maybe sponsorships, and maybe teaching people about your expertise, which is your whole bread and butter.

A content creator is a business. So can a content creator use music on TikTok or NOT?

What is absolutely clear is that business accounts are not allowed to use that regular library of music on TikTok because of publishers becoming weary of say, brands using their music on TikTok. It’s that brand-music association that makes them twitchy. For that reason, I would stick to the Commercial Music Library or, at the very least, go the extra mile to make sure that you’re allowed the music you’re using on TikTok. Especially if your post has something to do with promoting a brand.

Not as fun, but neither is a copyright infringement lawsuit.

So I hope this helps you to understand some of the issues with using music in your Reels and TikToks.

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stop worrying about what could come back to haunt you with these 4 easy-to-DIY action items

Your information will NEVER be sold or shared with anyone outside of Spear IP, and will always be used according to Spear IP’s Privacy Policy. By signing up, you will receive relevant email updates from Spear IP from time to time (but you’re free to opt out if you wish).

What to do About Podcast Copying

researching what to do about podcasty copying

What to do about podcast copying, including the one question that you really, really need to ask yourself before you even figure out what you’re going to do about it.

So here’s the thing. If somebody’s copying you, there are a few things that you can do. But there’s one question that you really need to ask yourself before you figure out which of those things is the best for you. I’ll tell you about it in one second. But first, here are some of the options when you are a victim of podcast copying.

Contact the infringer directly.

Number one, you can contact the infringer directly. You’d be so surprised at the lack of copyright or any IP knowledge that people have. Some people just don’t know that what they did was wrong. So a lot of times this option works if you are comfortable reaching out to the person directly and telling them hey, here’s what you did, here’s what I own, please stop or take it down.

DMCA takedown request.

You can also submit a DMCA takedown request. You see a DMCA takedown on sites like Facebook (here’s a link to its reporting tool) and YouTube (and here’s YouTube’s.). But basically, it’s like a copyright infringement takedown, where you fill out a form and say what was copied. But it’s that form that allows you to report copyright infringement.

You can always lawyer up!

The next option is consulting with a lawyer to maybe send a cease-and-desist letter, or maybe if it’s a really intense situation, depending on what’s going on, file a lawsuit.

Do nothing.

And then you might do nothing. If you think you might do nothing, I would say at least talk to a lawyer to make sure you’re not giving up your rights to anything if you really want to do nothing.

The one question you need to ask yourself before taking action when podcast copying strikes.

Okay, so I told you, there’s one thing that you need to figure out before you take any of these steps. That thing? Figure out what was copied?

Was it your podcast, general theme? Guess what? That might not be infringement. Same thing with a theme of an episode or subject matter of an episode. But essentially, think about the number of television shows about doctors. A general idea, or a general topic as it might apply to podcasts, is not really protectable under copyright law. Now, did they take your script? Did they take your words and just basically repeat them? That’s a little bit different.

Did they use the same guest that you use? Again, that’s probably not a situation where there is infringement going on unless you had some kind of exclusivity agreement with a guest, where the guest agreed that they would be, you know, your exclusive guest, maybe for a certain amount of time. Then your issue is with the guest, maybe not so much the podcast.

Podcast art? Totally legit. U.S. copyright law absolutely protects things like art, graphic design, and photography. So if someone copies your podcast art, that’s a situation you might want to handle.

Intro music. Again, it’s only an issue if you own that music, or if you licensed it under an exclusive license. “Exclusive license” just means you’re supposed to be the only one with permission to use that specific piece of music. And again, it might be an issue for the licensor — the person that you got the music or the company that you got the music from — maybe not so much the podcast.

Bottom line? If you’re a victim of podcast copying, the first thing you have to do is figure out WHAT was copied. That will dictate your next steps. (Especially if it’s something like an episode theme, which may or may not be protectable.)

So I hope that that helps you to understand some options and some things to ask yourself when you are a victim of podcast copying and I’ll see you next time.

How to Tell the Difference Between Copyright and Trademark

woman taking notes on the difference between copyright and trademark

Want to know how to tell the difference between copyright and trademark? It’s so super easy and not complicated, I promise you won’t forget after you read this post. I’ll even give you a little trick to remember so that you’ll never forget again. And if you stick around to the bottom, you’ll learn more about my latest free resource for content creators!

Alright, are you ready? Here comes the definitive way to remember the difference between copyright and trademark.

Trademark.

First, we’ll talk about trademark. Trademark is branding. Trademark is something — like a word or a slogan or a logo — that signifies your brand. It tells people where a product or service originates: whether it’s you, your company, whatever it is. You see the Nike swoosh, you know where those shoes came from. You see the red can with the white script, you know, it’s a coke. So think: trademark, branding. Trademark, branding. Trrrrrrademark? Brrrrranding!

Copyright.

Next, let’s take a quick look at copyright. Copyright protects creative works — technically original works of authorship. And there are a few specific categories of things that copyright protects. (There are also certain things that copyright doesn’t protect, like facts, or lists of ingredients.) But like I said, copyright protects your creative works like art, and music, and video, and even a downloadable PDF, graphic designs, infographics. So copyright, creative works, copyright, creative works.

A quick trick to help you remember the difference between copyright and trademark.

Copyright: Creative.

TRademark: BRanding.

That’s it!

If you want more info on copyright, check out this post on the content you can copyright.

And, for a trademark toolkit, click here! (Think of it as your go-to educational resource on trademarks.)

So I hope that this short little post helps you remember the best way to remember the difference between trademark and copyright.

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straightforward legal protection for influencers

stop worrying about what could come back to haunt you with these 4 easy-to-DIY action items

Your information will NEVER be sold or shared with anyone outside of Spear IP, and will always be used according to Spear IP’s Privacy Policy. By signing up, you will receive relevant email updates from Spear IP from time to time (but you’re free to opt out if you wish).

Are All Contracts Legally Binding?

woman taking notes on whether all contracts legally binding

Are all contracts legally binding? That’s a great question. The answer is yes, so long as you tick off all the little boxes in the elements that make up a contract. In other words, there are certain factors that make up a valid contract. If you stick around to the end, you will learn something about contracts — and writing — that might surprise you.

So aside from being of legal age to enter into a contract, there are four things that you have to satisfy in order to make up a valid contract: mutual consent, offer and acceptance, consideration (and no, it’s not like… caring about something), and legal purpose.

Mutual Consent.

That first one, mutual consent. That’s sometimes called a “meeting of the minds.” In other words, you and the other person are all agreeing to the same thing. You’re all on the same page as to what you’re agreeing to.

Offer and Acceptance.

Two, offer and acceptance. Pretty straightforward, there is an offer on one hand and an acceptance of the offer on the other hand. You can see where you might poke holes in a situation where… was that offer really accepted? Was there even an offer?

Consideration.

Consideration is something of value that you are giving in exchange for whatever the other person is giving. So, typical scenario is: I agree to provide services, you agree to provide payment, we are each providing consideration. One is services, the other is payment. We’re each providing something in order to enter into this contract.

Legal Purpose

And then legal purpose: you can’t contract for something illegal. (Sorry.) If you’ve satisfied all of those things, yep, it’s a valid contract.

Why Having it “In Writing” Does and Doesn’t Matter When it Comes to Legally Binding Contracts

Notice! I did not say that it has to be in writing in order for it to be a valid contract. I was one of two A’s in my contract, law class in law school thank you very much, and there was a little something called the “Statute of Frauds.” I know that sounds very legal. But it basically says that certain types of contracts are only valid if they’re in writing. That’s stuff like real property, real estate. You have to have it in writing in order for that type of contract to be valid. But in general, a contract does not have to be in writing in order to be valid.

This is why I say you should always have your agreements in writing. Not in text messages, not in DMs, not in emails back and forth, because those things can make up a valid contract. Or they could provide holes that you can poke into the agreement that say was there really an offer? Let’s scroll back through these emails. Was there really acceptance? Let’s scroll back through these DMs. Avoid all that. Avoid all that just have it all in a document.

So, I hope this helps you better understand that yes, all contracts — so long as you tick off all the elements of a contract — are legally binding.

Want my latest free resource for content creators? Scroll down to the bottom of this page and sign up!

What Year to Put On Your Website Copyright Notice

preparing to research what year to put on a website copyright notice

It’s a new year, and here’s a question I get asked a lot. And that question is, “What year should I put on my website copyright notice?” You know, that little copyright notice at the bottom of your website that says “copyright, blah, blah, blah?” Well, I’m going to give you the answer in this short post. And if you read through to the the end, I will give you the ONE exception for changing this general rule.

What’s in a copyright notice and why it’s important

So you’ve heard me say this before, but a copyright notice has three elements:

  1. The copyright symbol or the word copyright;
  2. The year that the creative work was published; and
  3. The owner.

A copyright notice is not a requirement for copyright protection (at least, not any more). But, if you don’t have one, an infringer could claim innocent infringement. And that’s a big deal, because it could drastically reduce the amount of money that they pay you for infringement, if it gets to that level.

What year to put at the bottom of your site

When was your website published? Well, if you’re constantly adding content to your website, by adding blog posts, by adding videos, then you have content on your website that could span a couple of years. So, what year should you put on your website copyright notice? A lot of times you will see a date range. So my website, for example, was first published in 2015. But I’ve added blog posts and videos for years and years since then. So if you scroll down to the bottom of this very page, you will see a date range at the end of my copyright notice.

The important exception to this rule

Now, the exception to this is: if you’re not adding new content to your website, or you haven’t added new content to your website since it was published. So if you have a brand new website that you’ve never added content to before, yeah, you would only have the one year: the year that the website was published. Otherwise, you are welcome to use that date range on your website from the date on which the website was originally published through the last date that you updated the content on your website.

One more thing…

All of this assumes that you actually own your website. Gotta look back at your contract with anyone that worked on your website to make sure. And if there wasn’t a contract, get your hands on my IP Rights Agreement Contract Kit™, stat!

IP Rights Agreement Contract Kit™

3 Mistakes to Avoid When Running a Giveaway (Legally)

woman reading about running a giveaway legally

If you’re running a giveaway on Instagram or elsewhere online, you must do it legally! Let’s talk about the three biggest mistakes that I see when people are running giveaways on social media.

Mistake #1: Creating an Accidental Lottery

Okay, so the first big mistake is accidentally creating a lottery. What the heck do I mean by that? Well, giveaways can actually fall under sweepstakes, contests or lotteries. A contest is something that’s judged based on criteria — like the best answer to a question or the most creative “whatever,” That’s a contest, when you have to judge the winner. A lottery, on the other hand is against the law in a lot of states.

What is a “Lottery,” and Why Is It a Problem?

To qualify as a lottery, you need a prize, you need chance — in other words, luck; luck of the draw — and you need “consideration.” What does consideration mean? Consideration means that to enter, you give something of value. It might be an email address, it might be a purchase. Note that an email address is completely free, but still valuable. A lot of times you’ll hear “no purchase necessary necessary to enter.” That’s because they’re trying to avoid a lottery. If your contest is actually a lottery, like I said, it could be against the law in a lot of states. (Some states consider lotteries to be gambling.)

Avoiding the Accidental Lottery

How do you avoid the accidental lottery? Well, you can make it into a pure contest, where you are judging people based on criteria — like I said, the most creative “whatever.” And you set out those criteria in your giveaway rules. OR, you give someone a totally free way to enter that doesn’t involve giving something of value. Tagging someone in the comments is an example. Another example? I ran a giveaway a couple weeks ago, and in my official rules, I said that you could enter either by filling out a survey, or by emailing me with the subject line “giveaway,” and that would count as an entry. Now, of course, you can give weight to different ways to enter. So, “you get five entries if you do this, you get one entry if you do this, no multiple entries allowed” — that type of thing.

Mistake #2: Not Having Giveaway Rules

You must, must must, must have giveaway rules in order to run a giveaway legally. You should also stick to those rules. Giveaway rules talk about things like how to enter, who’s eligible, what the prize is and what it’s worth, how the winner is chosen, how the winner is notified, and any other miscellaneous terms that are essential to your giveaway. For product-based prizes, you’ll often see that Alaska and Hawaii are excluded because the person holding the giveaway wants to avoid paying those Alaska and Hawaii shipping fees. You’ll also notice on Facebook and Instagram and many other social media networks that they require that you state that Facebook and Instagram or whoever is in no way affiliated with the giveaway.

Mistake #3: Not Adding the Proper Disclosures

Here’s a mistake you might not think of. Not disclosing when you are getting something for free in exchange for running the giveaway. Yes, even a giveaway can cause a sponsored relationship that you need to disclose to your audience. If you are getting something for free or something of value in exchange for running this giveaway, you have to disclose that to your audience. You should disclose that in any posts.

Running a Giveaway Legally: In Summary

So again, wrapping all of this up. One, avoid an accidental lottery. Two, have some official giveaway rules. Three, disclose, disclose, disclose if you are getting some kind of benefit or freebie or something in exchange for running this giveaway.

Those are the three biggest mistakes that I see made when people are running giveaways.

The #1 Trademark Registration Requirement for Online Brands

researching the trademark registration requirements

Curious about trademark registration requirements in the US? Today we’re talking about the number one most important thing that you need in order to file for federal trademark protection in the US.

I’m going to cut to the chase, the number one most important thing that you need in order to successfully register your trademark is use of the trademark in interstate commerce.

Whaaaat? What does that mean, exactly? Well, it means that you have to be able to show that you use your trademark across state lines. That can be a little bit harder for hyper-local businesses, or businesses that don’t do any business online. But if I know you, you absolutely do business online. In fact, you might only do business online.

So how does this trademark registration requirement play out? How do you show that you’re using a trademark across state lines? Well, when you file a trademark application, you have to submit what’s called a “specimen.” (Unless you haven’t started using your trademark yet, and then that’s a whole other can of beans.) Your specimen will show exactly how you’re using your brand. It will likely be a screenshot of your website and the services that you offer under your website. It also could be a screenshot of your podcast on Apple, or a screenshot of your video show on YouTube. If you promote others’ products and services on social media as an influencer, you can submit screenshots of your account where you promote those goods and services and your trademark might be your Instagram handle.

Bottom line, though, is that the best way to show that you’re using a trademark across state lines is to offer services across state lines by using the internet. And, if you have an internet-based business, you’re probably already doing that. Which mean you have this trademark registration requirement in the bag!