yogitoes–Setting the Standard for Organic Brands
© Cheryl Hodgson 2010 | Posted On March 1, 2010
The word organic has been popping up all over the place lately. Do a search and you will find organic food, organic wine, organic beauty products, organic textiles… you get the picture. Organic implies a more natural way of approaching what we consume. Let’s face it… these days organic is big business… but can business be organic?
I work for a company that I refer to as an organic entity. yogitoes® (branded with a lowercase “y”) is a creative company that develops yoga accessories, it’s main product being the SKIDLESS® yoga towel. From inception, the yogitoes story has unfolded as organically as a flower in a backyard compost garden. Everything from the manifestation of the company name, logo and products, even the way employees have come to work at yogitoes has been of an organic nature. Owner, creator and yogini Susan Nichols, has allowed the company to evolve in this way, trusting that the yoga community would dictate whether or not there was a need for her products and from there, what shape her company would take.
It happened to turn out that there was a tremendous need for the products she created as she found the company quickly grew to where it is today; an internationally recognized brand. Along the way, there have been many opportunities to practice what she promotes – yoga. I am referring to the side of yoga that gets less attention – the philosophy that it rests upon. Practicing the yamas and niyamas, which are often referred to as ‘the ten commandments’ of yoga, becomes much more challenging in the business world, whether it be dealing with patent infringements or difficult business interactions. Susan has shown that it is possible to remain true to these principles, trust the unfolding, and be successful.
Another part of yogitoes’ organic existence is the fact that it is a non-advertising company. This presents the opportunity to think outside of the box regarding product promotion. When the company started in 2004, the world didn’t revolve around social media; yogitoes’ product promotion was done mainly through word of mouth. Today, staying true to the only business plan it has – organic growth, yogitoes Facebook and Twitter pages exist along with a blog and a YouTube channel featuring respected teachers known as “yogitoes Enthusiasts” using their favorite products. It has proven to be an effective way to gain further exposure for the brand as well as a public platform to answer a wide variety questions regarding the products… essentially working as customer-specific advertisements. yogitoes also involves themselves with many charity events and fundraisers, exposing their product line to new populations and launching new products to devoted fans.
Susan’s unique story and business approach has been much sought after as she frequently gets asked to mentor start-up entrepreneurs… perhaps another business waiting to unfold… organically, of course.
-Alex Ward
View Print Friendly Version
Technorati Tags: brand management, Branding, brands, business management, Intellectual Property, Marketing, trademark, Trademarks
No Comments »
The Devil Wears Prada: Criminals Involved in Fake Goods Are Often Involved in Human Trafficking
© Cheryl Hodgson 2010 | Posted On February 9, 2010
On January 11, 2010, National Human Trafficking Awareness Month was launched across the U.S. Human trafficking involves horrible mistreatment of children, with some abuses too difficult to even speak of, much less imagine. Did you ever wonder who makes those “cheap” GUCCI knockoffs? Those DKNY items on street corners? Many of them may well have involved child labor, some of them akin to slavery.
I recently chatted with a friend who is deeply involved in raising awareness of human trafficking through www.intent.com. I offered to share how intellectual property theft is tied to human trafficking by sophisticated criminals. My goal is for this piece to forever serve as a reminder to those of us who have been tempted to buy those inexpensive, counterfeit luxury handbags or watches. We are all aware of the issue, but until more informed, tend to think in terms of the big brand owner who is upset about loss of rights and profits. “So what’s the big deal?” Read this, and I hope you will think again before you buy.
I am an Intellectual Property attorney who has worked passionately in the field of trademark and copyright law for many years. Even I was completely sobered and sickened by a story I heard at a U.S. Trademark Office program here in Santa Monica a few years back. An American attorney based in Thailand spoke of his law firm’s involvement in verifying fake goods seized by Thai custom officials. This type of cooperation is a rather recent side cooperative effort, resulting more from terrorist concerns since 9/11 than a real concern about protecting luxury goods trademark owners. Discovery of the fake goods is a rather random event, since custom officials are routinely bribed to “look the other way.”
Imagine a horrible, unsafe, and unsanitary warehouse containing $20 million in state-of- the-art cigarette manufacturing equipment used to make fake cigarettes. Imagine criminals who have recruited unsuspecting youngsters to travel from China and beyond to “job fairs” seeking a better life. The innocent girls are sold into sexual slavery, and young men are chained to machines like the one in the cigarette plant, forced to do the work of criminal enterprise. In this case, a raid of the plant found the owners long gone, tipped off in advance by custom officials in Bangkok. All that remained were the young male teenagers, chained to the machines to which they were slaves.
A 2004 Time magazine post on the issue of fake bags pointed out the profit motive:
The machines that companies use as legitimate manufacturers are also available to the bad guys,” says Timothy Trainer, president of the International AntiCounterfeiting Coalition. The factories disguise the contents of containers with foodstuffs or other consumer products like lingerie. For those brave enough to risk it, it’s a spectacular investment, with as much as a 1,000% return–better than drug trafficking. A 40-ft. container filled with fake bags can turn a profit of $2 million to $4 million. And counterfeiters save the roughly 50% of that revenue that luxury houses would invest in innovation and marketing. Read More: The Purse-Party Blues
A June 2009 piece by Gary Jones appearing in Time brings home the reality of the enormity of the problem with a view of the Bangkok Museum of Counterfeit goods.
Clemence Gautier, a Bangkok attorney with Tilleke & Gibbins explains:
“People think, ‘Oh, it’s just a T shirt and it’s no real harm,’ but we try to explain where the money is going. What if a 10-year-old girl is working every day to make those T shirts?” Read more: Knock it Off: A Thai Museum for Counterfeit Goods
The writer’s own shame, like mine, and I hope yours, is inevitable once we acknowledge and understand the why and how such cheap prices come about. Counterfeit trademark goods involve large scale criminal activity, preying upon the most innocent of humanity to reap billions in profits. Please share this with others to spread the word. Together we can make a difference.
Cheryl Hodgson is a member of the Emerging Issues Committee of the International Trademark Association, and past president of the California Copyright Conference. Cheryl can be reached at www.hodgson-law.com. She posts regularly at the BRANDAIDE Blog. www.brandaideblog.com.
View Print Friendly Version
Technorati Tags: brand equity, brand management, brand protection, police your mark
4 Comments »
What’s your copyright worth if it’s not registered prior to someone stealing your work?
© Cheryl Hodgson 2010 | Posted On February 1, 2010
The answer is: “Not much.” Visual and graphic artists are particularly vulnerable to unauthorized reproduction of copyrighted images on the Internet. It’s literally a simple “right click,” “copy,” and “paste.” Many such infringements go undetected. Those that are discovered are often let go without remedial action. Why? The artist fails to register his or her work with the U.S. Copyright Office prior to the work being stolen. For years, I’ve been asked: “Can’t I just mail it to myself?” In the case of scripts, “Isn’t the Writers Guild enough?” Then I hear, “I never got around to it.” My answer is, “Sorry, there’s not much I can do to help you.”
NO, NO and—NO! There is one place, and one only, to register your works, www.copyright.gov. Instead of sending in your registration by mail and waiting for years, the Copyright Office has come into the digital age so you can digitally upload the files. So why wait?
Exactly why is registration so darn important? While a copyright is valid without registration, the very statement is misleading. Copyright registration is essential to preserve key remedies for infringement. Unless registered prior to infringement, attorney’s fees and statutory damages are not available. It is often difficult, if not impossible, to prove actual damages or profits attributable to theft of a copyrighted work. For example, if the work is used on a product that doesn’t sell millions of copies, how do you prove your damages?
Congress created two types of damages to recover under copyright law. In addition to “actual damages,” one can elect statutory damages without proof of out of pocket losses. This means not only will the infringer have to pay you up to $150,000 per willful act of infringement (the amount is discretionary with the court) they will need to pay your lawyer’s fees. However, your work must have been registered prior to the theft or these remedies are lost. Without the threat of having to pay attorney’s fees to the copyright owner, there is little, if any, chance of finding counsel to bring a costly and drawn out infringement action on a speculative basis.
Legally, you are entitled to obtain an injunction to prevent ongoing or future infringements even if you file the registration after the infringement. A preliminary injunction in a copyright case can cost six figures and above in legal fees. Just ask Perfect 10 who spent a fortune in litigation costs against Google for the past five years. The company was p.o.’d at the search engine for providing thousands of its modeling images as thumbnail versions and for providing links to infringing sites.
If you don’t register, you won’t be getting any statutory damages or lawyer’s fees from the defendant. Unless you can finance the case out of your own pocket, this is one lawyer who can’t afford to help you. Do your selves a big favor—take care of this simple but all important part of your business. Register your works—someday you may be glad you did!
View Print Friendly Version
Technorati Tags: artist rights, attorney fees, Copyright, copyright registration, Entertainment Law, Intellectual Property, photographer, statutory damages
2 Comments »
Ready for Art Licensing 102? Advance On!
© Cheryl Hodgson 2010 | Posted On January 18, 2010
Wednesday January 20, 2010, 5:30-6:30pm PST.
FREE Art Licensing Teleseminar!
IP Attorney Cheryl Hodgson will answer the questions: Hosted by Artist Tara Reed
Back by popular demand! After the success of her last art licensing teleclass, Cheryl Hodgson will once again be answering artists’ questions during this free teleseminar. To submit your questions and register, go to www.askcherylhodgson.com.
When you register for the call, you will also receive a free mp3 copy of Cheryl’s July 2009 teleclass as our gift to you!
It’s easy to attend—all you need is a phone! You can also sign up for a free mp3 audio replay of the call.
View Print Friendly Version
Technorati Tags: artist rights, Copyright
No Comments »
Oprah’s “aha moment”— Is this your trademark’s “aha moment?”
© Cheryl Hodgson 2010 | Posted On January 15, 2010
“Aha moment.” What do you think of when you hear that phrase? Or should I ask who do you think of? Oprah Winfrey would like it to be her! However, after her recent settlement with Mutual of Omaha insurance company, she might not be the only one that can use the popular phrase.
Oprah’s production company, Harpo Productions, had originally claimed that “aha moment” was a trademark from her television show. At oprah.com, you will find numerous videos showing the “aha moments” of various celebrity guests. Some of those moments include, “finding a different kind of happiness, learning to prioritize, and the courage to do something new.”
Harpo learned that Mutual of Omaha was using the slogan “official sponsor of the aha moment,” and sent them a letter asking them to stop use. Omaha responded by filing a lawsuit in the U.S. District Court in Omaha arguing that they had already been granted preliminary approval of a federal trademark for the slogan.
Harpo had previously applied for trademark protection of “aha moments” in entertainment services and in magazines, while Omaha applied to register “Proud sponsor of life’s aha moments,” “Official sponsor of life’s aha moments,” and “Celebrating life’s aha moments” in the insurance industry.
In doing a Google search, I found that Omaha also owns the domain <ahamoment.com> where they describe “A moment of clarity, the aha moment is a defining moment where you gain real wisdom—wisdom you can use to change your life.”
Even though Oprah had made the mark famous, Omaha alleged that she failed to police the mark and there was no opposition to its trademark application. The case was settled out of court. This story can be your “aha moment” in brand protection. I’ve written much about the importance of developing and maintaining a trademark monitoring program. Read our earlier post: http://brandaideblog.com. Enforcement means having a watch program in place to monitor new filings and counsel to give prompt notice of potential conflicts. Failure to police can mean complete loss of rights.
This all might not even matter much longer anyway, now that Oprah has officially announced her talk show will end September 9, 2011. Aha…
For more information on the importance of policing and monitoring your trademarks in the digital age, sign up for our blog and we’ll send you a free chapter from the Guide to Building and Protecting a Valuable Brand on the Internet, based upon the INSURE™ Brand Protect Sequence.
View Print Friendly Version
Technorati Tags: brand management, brand protection, Branding, Intellectual Property, loss of rights, police your mark, Registration, trademark, trademark infringement, trademark registration, trademark selection
4 Comments »
FTC REGULATIONS AFFECT INTERNET AFFILIATE RELATIONSHIPS, ENDORSEMENTS AND TESTIMONIALS
© Cheryl Hodgson 2009 | Posted On November 19, 2009
Are Internet marketers affected by the new FTC regulations? The answer is yes! Recent changes taking effect December 1, 2009 have been made to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising. These regulations will likely require disclosure of affiliate relationships, as well as paid endorsements and testimonials by many Internet marketers. Once relegated to truth in advertising in traditional television, radio and print media, the new regulations expand coverage into the Internet arena. Internet marketers commonly pay a commission for sales made by so called “affiliates.” Also at issue are tighter rules requiring disclosure of paid endorsements and testimonials.
The rules will apply to bloggers as well as social media such as tweeters and Facebook users.
We are sending you the most important things you need to know about the FTC rules:
1. Do not have a consumer describe his product experience as typical if you can’t prove it! Otherwise, you will also have to disclose the results that consumers can generally expect. Under the 1980 Guides, advertisers were able to include unusual results in a testimonial so long as there was a disclaimer. That is no longer the case, as illustrated in an FTC example:
A brochure for a baldness treatment consists entirely of testimonials from satisfied customers who say that after using the product, they had amazing hair growth and their hair is as thick and strong as it was when they were teenagers. The ad will also likely communicate that the endorsers’ experiences are representative of what new users of the product can generally expect. Therefore, even if the advertiser includes a disclaimer such as, “Notice: These testimonials do not prove our product works. You should not expect to have similar results,” the ad is likely to be deceptive unless the advertiser has adequate substantiation that new users typically will experience results similar to those experienced by the testimonialists.
2. You must disclose payments or free products between you and endorsers. The FTC likes to call these material connections that consumers would not expect. This even applies to bloggers. If you are paid to review a product and post a blog about it, it is an endorsement and must be disclosed. The FTC illustrates below:
An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer’s product. Knowledge of this poster’s employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board.
3. If you mention research company data and you sponsored that research, you must disclose that connection in your advertisement.
4. Do not make false or misleading claims. Any paid endorsement or advertisement with false or misleading claims is deceptive and not allowed under the FTC Act. Under the new Guides, advertisers as well as the celebrity endorsers can be held liable for making false claims or failing to disclose material connections. “Celebrities have a duty to disclose their relationships with advertisers when making endorsements outside the context of traditional ads, such as on talk shows or in social media.”
Basically, the new Guide covers endorsements by celebrities, consumers, experts and organizations, as well as disclosure of material connections. There are more great examples at www.ftc.gov
View Print Friendly Version
Technorati Tags: Advertising, business management, Marketing
1 Comment »
FACEBOOK for Business-and my 11-11 Birthday
© Cheryl Hodgson 2009 | Posted On November 13, 2009
November 11, Veterans Day, my birthday and that “mystical” number 11-11 (so I’m told). This year it marked my conversion to FaceBook. While I’ve had a Facebook page for some time, it was only earlier in the week that I logged in and started learning the darned system. I had just finished listening in on a wonderful social media teleclass conducted by Kerianne Mellott. http://marketingmakesmesmile.com.
After some fiddling around I was finally able to configure updates to come to my phone by text message. (Still have not quite got the wall thing down). Wednesday dawned to a steady stream of “Happy Birthday” text messages coming from Facebook Friends. I’ve never felt quite so popular or loved on my birthday! Who would have known that Facebook would bring me one of my best birthdays ever!
Then there’s the business thing. Is my Facebook about staying in touch with my 21 year old rocker nephew, his mother, or engaging with my trademark and intellectual property clients, or potential clients? Is it about building my personal brand? Maybe some of all? As the week closes, I happened upon an interesting piece in the NY Times on how customers are engaging with businesses through Face Book. A great little piece (even if I can’t get the link to work!) http://www.nytimes.com/2009/11/12/business/smallbusiness/12guide.html?em
Looking back this year, many of us have been disappointed in our government and our systems. A feeling of powerlessless can set in if one is not mindful. No wonder the ability to build community on line and have one’s voice heard and acknowledged by others is becoming a national obsession. Maybe all this social media is a great thing after all!
View Print Friendly Version
Technorati Tags: facebook, Intellectual Property, social media, Trademarks
2 Comments »
FAIR USE…FREE EXPRESSION—DOES FAIREY HAVE ANY HOPE?
© Cheryl Hodgson 2009 | Posted On October 29, 2009
Shepard Fairey’s last name is kind of ironic being that he claimed fair use, even though he just recently confessed to concealing his mistake by submitting false images and deleting others.
Tip #1—If claiming you are guilty of stealing someone’s copyrighted work based upon “fair use” at least be honest about which work you used.
A legal battle was launched in February by Fairey against the Associated Press. Fairey claimed his use of the photograph taken by AP’s Mannie Garcia of then-Senator Barack Obama appearing on the artist’s “HOPE” poster was not copyright infringement. The Associated Press fought back arguing willful copyright infringement over use of the photograph.
The artist originally stated that he based his poster on a photo of Obama sitting next to actor George Clooney. He has now changed his mind as to which AP photo he actually used in creating his work.
Fairey’s recent statement may hurt him in his case, especially since he is going to lose his attorneys led by Anthony Falzone, Executive Director of the Fair Use Project at Stanford University. The team has announced they intend to withdraw from the case since their client misled them, fabricated information and destroyed material.
Tip #2—Don’t lie to your copyright lawyer!
Despite his loss of credibility, the case brings to the front and fore a major issue in copyright law certain to affect photographers, composers and artists whose works are used in subsequent content. Subsequent users claiming fair use must show their use of the underlying work was transformative, namely the new use adds value to the original and the prior work is “transformed in the creation of new information, new aesthetics, new insights and understandings.” 4-13 Nimmer on Copyright § 13.05.
Was it ok for the artist to manipulate an existing image? How much of the original image was altered in the creation of his poster? Was it enough to add red, white and blue and the word, “HOPE?”
Fairey stated, “Regardless of which of the two images was used, the fair use issue should be the same.” So we have artists and free speech advocates on one side versus photographers and journalists on the other side.
It will be interesting to see the outcome. Either fair use will triumph or Fairey will have to pay for use of the photograph.
Tip #3—If you base your work on a previously copyrighted work, make sure it is original and transformative.
View Print Friendly Version
Technorati Tags: artist rights, Copyright, Intellectual Property
1 Comment »
HOTELS.COM, HOW GENERIC—TRADEMARK LOST ITS LUGGAGE!
© Cheryl Hodgson 2009 | Posted On October 23, 2009
The costly and belated attempt of Hotels.com to create a protectable trademark and brand from a generic domain name illustrates a point I have been ranting about to internet business owners for several years. A generic term will never be a trademark or brand for the product or service being sold. Before investing thousands of dollars in marketing and advertising solely under a generic or descriptive domain name, consider adopting and registering a term that can be a valuable brand. A strong trademark will distinguish your services and can be used to stake out your turf in the marketplace. Otherwise, you will end up just like HOTELS.COM. It is a nice location on the Internet, but they have no fence to keep out the competition!
Early internet marketers and domain aggregators have spent the last 10 years creating misinformation and leaving many internet businesses with weak or no brand protection. Marketers in their quest to secure easy search rankings, as well as domain resellers seeking to drive up prices, failed to communicate this important message. Now it is not just my pet peeve, it is the law according to the U.S. Court of Appeals. http://brandaideblog.com/wp-content/uploads/2009/11/in-re-hotels.com_.pdf
Despite spending huge amounts in legal fees to convince the court that HOTELS.COM could be a trademark, the efforts to retrieve its lost luggage failed. In re Hotels.com, L.P., 573 F.3d 1300 (Fed. Cir. 2009) affirmed that a generic word can NEVER be trademarked, at least not for the goods or services being sold under that name. The whole point of having trademarks is to identify source. By definition, a generic term cannot identify source. Do not be generic. Be unique. Get protected.
Hotels.com thought that by adding a dot-com to the generic word “hotels”, they could get trademark protection. That is not the case. A word is still generic regardless if it has a dot-com or not. A dot-com merely shows internet commerce. For example, the court referenced the Lawyers.com case. See In re Reed Elsevier Props., 482 F.3d 1376 (Fed. Cir. 2007) (online interactive database featuring information exchange in fields of law, legal news and legal services denied registration of generic mark LAWYERS.COM).
The only argument available to business owners who are wedded to a weak or generic term, is to throw money and legal fees into attempting to prove the term has “acquired distinctiveness” so that the public identifies the term with a particular business or source for goods and services. As was the case here, such efforts after the fact are an uphill battle not easily won. The company failed to persuade the board that its survey showing 76% of 277 consumers thought the domain name was a brand name was sufficient evidence. The board stated that “the survey design did not adequately reflect the difference between a brand name and a domain name.”
So what does this mean now that HOTELS.COM is not a trademark? It means that Hotels.com cannot sue other companies who use the term “hotels.com” to trigger ads on Bing™, Google™ or other search engines. Try doing a search for “hotels.com” and see what comes up—the official website, plus Travelocity®, Priceline® and many more.
What about www.all-hotels.com, www.web-hotels.com and www.my-discount-hotels.com? The TTAB cited these websites to demonstrate a competitive need for others to use “hotels” as part of their own domain names and trademarks.
The holidays are just around the corner…which site will you use to book your hotel stay? Save money and just go with the generic brand—Hotels.com!
View Print Friendly Version
Technorati Tags: Branding, brands, copyright registration, generic terms, internet law, loss of rights, Registration, trademark, trademark registration, trademark selection, Trademarks
2 Comments »
BRANDS WE LOVE TO REPRESENT
© Cheryl Hodgson 2009 | Posted On October 4, 2009
Denise Linn www.deniselinn.com, Hay House author and founder of INTERIOR ALIGNMENT®, has authored numerous books, including Feng Shui for the Soul and Space Clearing to name just a few. Denise has appeared on Oprah and has trained hundreds of people worldwide. Denise’s book Soul Coaching is also a 9-day experience held on her beloved Summerhill Ranch in Paso Robles, CA.
Denise’s weekly radio show on www.hayhouseradio.com is one of the most popular on the network. Soul Coaching is now an online course offered via Hay House, http://www.deniselinn.com/Events-28week-Soul-Coaching.htm. As of the last count, over 700 people worldwide are participating in the online course with monthly tele-classes.
Thank you Denise, for being a beloved client and inspiration to so many people around the world.
View Print Friendly Version
Technorati Tags: brands, women entrepreneurs
No Comments »
« Previous Entries
