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WordPress: Terms of Use You Didn’t Read

group of people reading wordpress terms of use for the first time

Y’all know I’m a big Terms of Use geek. I’m super excited about this new monthly series, “Terms of Use You Didn’t Read.” I will go in and pick out a handful of terms in platforms that you might be using and point out some of the things that you’ve agreed to by using the platform.

The series will show you, in general, how Terms of Use are used. It’ll also show things that you might not know you’ve agreed to by using certain platforms. Today I’m talking about WordPress.com, a common website platform for building tons of different kinds of websites.


WordPress Terms of Use: Share and Share-Alike

The coolest thing about WordPress’s Terms of Use is that they have released them under a Creative Commons Share-Alike license.

Well, what the heck does that mean?

That means that you can copy and paste those suckers and use them for your own website!
Obviously, they should be tailored to your website. WordPress even says this in the first couple of paragraphs of their Terms of Use. WordPress also says it would appreciate credit if you do post them. Still, pretty neat that they put out there that you can use these Terms of Use for your own website.

Pretty cool, WordPress. Pretty cool.

Permission to Re-Blog [automatically] Granted

Next is something in the WordPress Terms of Use that has to do with “re-blogging.” The Terms of Use say:

“You give other WordPress.com users permission to share your content on other WordPress.com websites and add their own content to it (so in other words, re-blog) so long as they only use a portion of your post and they give you credit as the original author by linking back to your website.

See: https://wordpress.com/tos/

In other words, by posting on a WordPress.com website, you grant permission to other WordPress users to copy and paste portions of your website “so long as they only use a portion of your post.”
It doesn’t say what “a portion”means, it doesn’t say big or small portion. This might be worth monitoring, to the extent you monitor your own content that’s being reposted or shared.

The Easter Egg in the WordPress Terms of Use

In the Disclaimer of Warranties section, WordPress has a little Easter egg hiding. So, they say, “If you’re actually reading this, here’s a treat.” And they hyperlink to a picture of barbecue. ‘Cause they love barbecue.

It’s just funny because they call out the fact that nobody actually reads these things. ( I mean, I do.) I bet at least ten percent of the people that read this post will be surprised by what they’ve agreed to by using WordPress.

WordPress Limitation of Liability

In their Limitation of Liability, WordPress points out that their liability is limited. The limitation is either the fees you’ve paid over the last 12 months, or $50 (whichever is greater). So, to use easy math, if you pay $10 per month for a year, then you are limited to $120 in damages. (That is, if there’s ever a cause of action that arises between you and WordPress.)


So that’s it in terms of some of the terms that you’ve agreed to by using WordPress. Just a handful there for your entertainment and education.

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3 Things to Think About When Choosing a Trademark for your E-Course

brainstorming session when choosing a trademark for your ecourse

By the end of this post you’re going to have a good handle on what trademark strength is and what descriptiveness is, and how they kind of play a role and in naming your e-Course. You will also have a couple of real-life examples of what can happen when you choose a descriptive trademark for your eCourse, and you’ll have an action plan in the form of a little exercise to do when naming your e-course programs.

The Spectrum of Trademark Strength, Descriptiveness, and How They Affect Choosing a Trademark for your e-Course

Trademark Strength

So first, the spectrum of trademark strength. Briefly, the trademark strength spectrum speaks to how protectable a mark is, at least initially. I have another post that speaks through the whole spectrum of trademark strength, but this post will focus on descriptive marks and online courses. 

trademark strength spectrum for use when choosing a trademark for your e-course
A little primer on the different levels of trademark strength

Descriptiveness

A descriptive mark describes a quality, characteristic, function, or purpose of the service offered under that brand. “Distinctive” is another way of saying “protectable.” Essentially, it’s that legal term that says that a mark is strong, identifiable, etc. 

Compare a mark like HOME GOODS to a mark like SPOTIFY. You know what you’re going to find when you walk into a store named HOME GOODS. But when you hear SPOTIFY, at least the first time you hear SPOTIFY, you’re not really sure what that company is about.

But on the HOME GOODS example, for the same reason that you know exactly what you’re going to find when you walk into that store, it’s also hard to stop another store from using that phrase “home goods” in connection with a store that sells home goods.

SPOTIFY, on the other hand, is so unique and so “distinctive” that right away, the owner might be able to stop someone from using a similar mark.

Now, descriptive marks like HOME GOODS, like SPORTS AUTHORITY, like BED BATH AND BEYOND, can earn that distinctiveness factor over time. Because it’s been used for so long it has such a huge following and huge market recognition, etc. HOME GOODS has earned that distinctiveness that’s usually reserved right off the bat for stronger marks like SPOTIFY.

The Supplemental Register

A lot of times if you file to register a descriptive mark with the US Patent and Trademark Office, the Trademark Office will require you to move it over to the Supplemental (or secondary) Register. 

The Supplemental Register is fine, and it does have some of the benefits that the Principal Register has:

  • You get to use that R-in-a circle symbol; and
  • Your registration acts as kind of a roadblock to later filed similar marks,

(to name just a few benefits).

But, the Supplemental Register just doesn’t have the same protections that the Principal Register has. Some of those beefier protections are:

  • The registration acting as notice of the owners claim of ownership and the validity of the trademark;
  • Filing for incontestability later. (I know I’m using a lot of legal words but “incontestability” is a huge thing in the trademark world. It basically severely limits anyone’s ability to challenge your trademark a few years down the road.)

You can file a new application on the Principal Register for a descriptive mark after it’s been registered on the Supplemental Register but you’re paying to register the mark again.

So when you’re choosing a trademark for your e-course, why not just choose a distinctive strong trademark from the get-go?

Real-World Examples of Choosing a Descriptive Trademark for your E-Course

real-world examples of choosing a descriptive trademark for your e-course

Okay so I’ve got two real-life examples for you from mega, female digital empresses. And my big disclaimer is:

I don’t represent either of these women, I’m just making observations based on information that’s publicly available from the Trademark Office!

So example number one is Marie Forleo’s B-SCHOOL. B-SCHOOL was registered but it was initially rejected based on descriptiveness. (‘Cause, you know, “B school” is how every college kid refers to “business school.”) The Trademark Office suggested that it be moved over to the Supplemental Register. (Check out the record for yourself, here.)

Another example is Amy Porterfield’s LIST BUILDERS SOCIETY. The LIST BUILDERS SOCIETY trademark was also initially rejected based on the descriptiveness and moved over to the Supplemental Register. (That record is here, if you’re interested.)

An Exercise When Choosing a Trademark for Your E-course

So here’s a little exercise to run through when you’re brainstorming ideas for your eCourse names.

You want to break up the page into three columns.

In that first column, you’re thinking through those marketing phrases, keywords or keyword phrases — things that your audience might search for when looking for a course like yours. These are going to be your descriptors, your descriptive words, right? Those terms might get you into Supplemental Register territory on their own.

In the middle column, think about the transformation you want your customer to go through when completing your course. Focus on the customer and what they will be once they complete your course.

And then, in the last column, you’ve got your brand name. This is your existing, core brand name that all of this will be housed under.

Now use some combination of the three and start working towards a strong trademark. Those first two columns could land you into descriptiveness territory, but now you have an understanding of what a descriptive mark is, right?

At the very least you could have blah blah blah descriptive mark by [your brand name] …whatever your brand name currently is.

So remember, while descriptiveness can be your friend with marketing and in connection with marketing purposes, it might not be your friend for trademark purposes.

I hope this post gave you some things to think through when you are going through the process of choosing a trademark for your e-course.

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Online Marketing Lessons from Fyre Festival

legal lessons about online marketing

By now, you’ve seen the documentaries. (One aired on Netflix; the other, on Hulu.) It’s the kind of story you end up watching with your hands partly covering your eyes, for several reasons. That the situation departed from the planned luxury music festival experience is an understatement. To go from advertising a private villa experience to directing customers to rescue tents, something had to go wrong somewhere. Well — spoiler alert — multiple things went wrong, on multiple fronts. “Went wrong” is putting it lightly. And yes, legal action ensued on both the criminal and civil sides.

So what can we learn about online marketing from the Fyre Festival fiasco? This post will go through influencer marketing, email list manipulation, and false product descriptions on a website.

Online Marketing Lessons, Lesson 1: Using Influencers in Your Online Marketing…the Right Way

The Background: An influencer doesn’t have to be a reality television star or even Kim Kardashian to qualify as an influencer. An influencer is simply someone that has monetized his or her identity online. Remember how, in 2017, the FTC started cracking down on influencers and sponsored posts on social media? Well, that was a result of Fyre Festival’s flop. You see, supermodels and other influencers were posting about and promoting the festival. The FTC’s concern, after the fact, was that ordinary users on the Internet weren’t able to tell the difference between genuine opinion and a sponsored relationship between the Festival and the influencer.

The Lesson: Influencers must now be clear when there’s a sponsored or promotional relationship between the influencer and the brand. That doesn’t necessarily mean they have to disclose the amount of money involved. It can even be done in a playful or non-awkward way, e.g., “When [brand] first approached me….” But hard-to-miss clarity is key.

Online Marketing Lessons, Lesson 2: The Sacred Email List

The Background: There are rules for collecting email addresses, and there are guidelines. Thanks to the GDPR, everyone is pretty well aware that you have to have a “legal” basis for collecting personal information. The most common legal basis is “consent.” And not just enter-your-email-address-above-this-pre-checked-box-and-click-yes consent. That won’t cut it any longer, now that the GDPR is boss. Consent under the GDPR means giving the user enough information to make an actual yes or no decision. (That is, “Yes (or no), you can collect my information and use it in this way.”)

Master Serivce Agreement MSA Software Development Maria Spear Ollis Spear IP Nashville Tennessee Tech Attorney

The Lesson: One of the documentaries shows someone, allegedly at the behest of the Fyre founder, emailing Fyre Festival attendees regarding future events. And not just future events, but tickets to the Masters, the Grammys, the Met Gala, and other high-society, high-ticket events. Well, the law is pretty clear that you can’t contract away your responsibility to comply with legal requirements. In other words, if you hire someone to do your email marketing, you still have to comply with applicable law. That means things like having an accurate “From” description. It also means making sure that messages are clearly identified as advertisements. And, having an unsubscribe mechanism in place (and honoring requests to unsubscribe) are also key.

Online Marketing Lessons, Lesson 3: The Lanham Act and Misleading Product Descriptions

The Background: We learn from watching the documentaries that Fyre Festival was promoted as an incredible, luxury vacation and music festival experience. Attendees could book an incredible, beachfront villa. They could book yachts. Each of these experiences came with a hefty price tag, but people paid. Then, they arrived… and the reality was far from the enticing experiences they booked online.

The Lesson: The Lanham Act may sound familiar to you. It’s the act that governs trademarks and trademark infringement in the United States. False advertising and false product descriptions also fall under the Lanham Act. The Act allows a consumer to sue for advertising that “misrepresents the nature, characteristics, [or] qualities” of goods or services. 15 U.S.C. § 1125(a). The FTC can also enforce false advertising claims on a consumer’s behalf. (In case you didn’t notice, the FTC is the common thread, here. It wields the hammer when it comes to false or misleading communications that affect consumers.) So, if you sell someone a ticket to a private yacht with a Michelin-decorated chef, you’d better deliver on just that. It’s pretty simple: be accurate in your product or service descriptions. Be clear.

In sum, while the Fyre Festival documentaries were equal parts horrifying and entertaining, there were definitely online marketing lessons to be learned.


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What the SCOTUS Sales Tax Ruling Really Means

what the SCOTUS sales tax ruling really means spear ip fashion law internet law

Last week (specifically, on Thursday, June 21, 2018), the Supreme Court ruled on a South Dakota law relating to the collection of sales tax for online purchases. Cue a frenzy of brands and online retailers trying to decipher what this SCOTUS sales tax ruling really means. Here’s a breakdown of the decision.

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