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The Slants. USPTO. “Disparaging”

Trademark. Rejection.

USPTO. Trademark.

Imagine that you find that ideal name that suits your business and brand quite perfectly. You rush to quickly file all of the appropriate paperwork with the US Patent and Trademark Office so that you can start to use your trademark. Then your attorney reaches out to you to inform you that you’ve received a rejection letter from the USPTO stating that your trademark was not approved because it was found to be “disparaging.” What would you do?

Well this is exactly what occurred to the Asian-American rock band, The Slants. The band’s trademark was rejected in 2010 on the grounds that it is disparaging to people of Asian descent. The band leader, Mr. Tam, was surprised about the rejection notice and cited that the band had received not one formal complaint by any Asian-American. At that time the band had been touring for over several years.

In an edited excerpt from the conversation that the NY Times conducted with Mr. Tam, he says the following about where the name originally came from:

It came from me asking around friends when I was trying to think of a band name. I said, “What’s something you think all Asians have in common?” and they told me slanted eyes. That’s interesting because, No. 1, it’s not true — not all Asians have slanted eyes and Asians aren’t the only people that have a slant to our eyes. But No. 2, it worked [as a name] because we could talk about our perspective — our slant on life, as people of color navigating the entertainment industry — and at the same time, pay homage to the Asian-American activists who had been using the term in a reappropriated, self-empowering way for about 30 years. We know that irony and wit can neutralize racial slurs, because it shifts the dynamics of power. It makes people check in and think, “Is this actually appropriate to use or not?” Prior to that, people just make assumptions. Read more here.

The Slants.

The Slants, not wanting to give up on their band name, took their case all the way to the Supreme Court. And after 5 years of battle, the Supreme Court recently ruled the USPTO is not able to determine what kind of speech is socially acceptable and what is not.

Justice Samuel Alito wrote, “The disparagement clause violates the First Amendment’s Free Speech Clause.” The court went on to say that “the federal government does not dream up these marks,” and that registration should be “viewpoint neutral.”

Attorney Lee Rowland of the American Civil Liberties Union agreed with the decision that the Supreme Court made and said:

“The government’s misguided effort to protect minorities from disparagement instead hurt members of that very community by hindering their right to compete in the marketplace of ideas. Fortunately, today’s opinion prevents the kind of absurd outcome that results when the government plays speech police.”

As this moment, the government has appealed the decision to the U.S. Supreme Court. So, we will need to continue to follow this case. What do you think of the Supreme Court’s decision? Feel free to comment below.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Feel free to join my conversation on my Facebook Fan Page, on my Twitter page, in one of my LinkedIn Groups.

Terms and Conditions. AirBnB. Change in Terms.

Terms of Use. Check box.

Illustration depicting a roadsign with a 'read the small print' concept. Sky background.

AirBnB. Terms.

How many of you sign up for an online account with a business and when you get to the terms of service, you simply check the box without reading the fine print? It happens all of the time, right? It may be that you are too busy to read through it. Or even if you did have the time to read it most of the language is designed to be nearly impossible to decipher.

And then once you check those terms, you agree that the company can at any given point modify those terms without your approval. And make no mistake, you are legally bound to this agreement with the company.

AirBnB.

One business that recently sent out a notice to all of their users regarding a change in the terms of service is AirBnB; the online marketplace and hospitality service. These changes could have major implications for all AirBnB users.

Taken from the email sent to their customers AirBnB says:

Our community and vision for travel have grown significantly, so we’re updating our Terms of Service, Payments Terms of Service, and Privacy Policy (collectively, “Terms”). Also, we rewrote and restructured the Terms to make them shorter, more concise, and easier to read. The changes will go into effect for all existing users on August 25, 2017. When you use Airbnb on or after that day, we’ll ask you to agree to the new Terms.
You can review the new Terms by clicking here. We’ve also put up information to explain these changes in more detail on our Terms of Service Update page. Both the old and new versions of the Terms can be found at the Terms of Service, Payments Terms of Service, and Privacy Policy, tabs through September 25, 2017. You should review these Terms in full yourself.

Review Terms.

These recent updates include changes to their terms, payments and privacy policy.  If you are a user of AirBnB, I’d highly recommend that you review these revised terms to determine how these changes may affect you.

And if you’re overwhelmed by these types of legal agreements, an attorney can always help you navigate through the fine print.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Feel free to join my conversation on my Facebook Fan Page, on my Twitter page, in one of my LinkedIn Groups.

 

 

 

 

 

 

Why Me?

Everything happens for a reason

Good health. Yoga woman relaxing by seaSometimes when we’re disappointed because we didn’t get an outcome we wanted, it’s hard to understand why it happened. It seems unfair that we try so hard to achieve our goals with little visible success. It’s especially hard if we did our very best. “Why me?” we ask. “Why is this happening to me? What did I do wrong?”

Nothing happens by accident

Nothing, absolutely nothing, happens in this world by accident, even if in the moment we can’t make sense of the experiences. There are often two levels of reasoning. There is a logical, secular explanation, such as we weren’t prepared in the way we need to be or we could have made some different choices. But there is also a spiritual, metaphysical accounting that suggests that whatever happens was for our highest and best good, regardless of outward appearances to the contrary.

The spiritual reasons could be we weren’t emotionally ready to go to the next level. We had more inner work to do, there were more important things to attend to before our dreams could be realized, it wasn’t the right time, or had we realized our dream, we would have missed another opportunity that we needed to experience.

How do you know whether to let a dream go or keep at it?

And if you let go, how do you know when it’s time to try again? There is no one-size fits-all answer. There are many factors to be considered, including timing. If you’re at this crossroads take into account the following:

  • Are you consumed with making your dream happen?
  • How long have you worked to make it happen? How many attempts have you made?
  • How does your obsession with making it happen affect your loved ones? Sometimes the price we pay is worth it – and sometimes it’s not. Only you can decide.
  • What are the financial implications? Health implications? Are you using your last dime, your family’s savings, or your rent money? Are you getting sick? These are questions to consider.
  • Is it really your dream to make this happen? If so, sometimes it’s worth everything to keep the dream alive.
  • Does your life or livelihood depend on the success of this experience?
  • How do you know when you’re ready to resume the process? The answer varies. However, the amount of time since your last attempt, whether you’ve been able to acknowledge your mistakes, whether you’ve been able to indentify lessons learned, and whether you’ve been able to reach out for help are all factors to be weighed.

Today allow yourself to think through what would happen if you put your dream on hold temporarily. You may not think that you have the time or that you’ve already invested too much money to stop now. But perhaps if you continue as you are, more money and time will go to waste. Sometimes allowing time to come between you and the experience gives you a chance to regroup, reassess your strategy, and become spiritually and emotionally strong again.

Join my conversation on FacebookFacebook Esteemableacts Fan Page, or my Facebook Law Page, you can also interact with me on my Twitter Esteemable Acts page, Twitter Law Page, or on LinkedIn. Feel free to subscribe to my newsletter.

Ask for what you need

Grateful. Gratitude.

It’s 6:30 in the morning and I was in McCarran airport waiting for my flight to return home. I was hungry and didn’t want to risk eating something on the plane that I’d regret. So, I scouted around the concourse with some possible options. I approached the first food counter and asked for what I wanted, even though I didn’t see it on the menu. I’ve learned that it’s better to ask, even if you don’t see what you want, because they just might happen to have it. So, I asked. The server was really kind and said, “It’s good that you asked. Even though it’s not on today’s menu, we usually have it. He continued, “You might check the restaurant next door.” Thank you,” I said, and I went next-door.

Again, I didn’t see what I wanted on the menu but decided that I at least ask. The worst thing they could say would be “Sorry, we don’t have it.” And I walked up to the counter and asked for my selection.

“Do you see it on the menu?” The server said, in a somewhat irritated tone. “No,” I said, “but sometimes it’s worth a shot to ask.” He said, “Well not here. You get what you see and we don’t make egg white anything. This is not a gourmet restaurant.”

“Do you have oatmeal?” I asked, in an effort not to give up on my plan. “Well no, we don’t have oatmeal. Is there anything on the menu you’d like?” “No, thank you,” I said and I left.

As I walked away, I overheard him saying to a co-worker, “Some people are so picky. She should eat what she can get. Everybody’s on a health kick today.”

Some of you might be thinking if I had asked for something on the menu, this would have never happened. And you know, you’re right. But at the moment in time, I want to what work for my meal plan. I didn’t want bacon, fried eggs, and hash browns; I want to eat a healthier choice.

How many of us give up too soon or don’t even ask for what we need because we’re afraid someone will perceive us as “high maintenance” and picky, and with that ungrateful attitude, because our health needs differ from theirs.  How many of us make a choice every day not to take care of our needs because someone might not like us. For years, I was that person. The one who couldn’t or wouldn’t ask for what she needed for fear of what others would think. Today I am not.

A powerful force, fear defines who we are, controls the choices we make, and keeps us stuck in places we’d rather not be. How do we learn to ask for what we want?

  • Know going into a situation that it probably won’t be easy. You’re doing something you’re not used to doing.
  • Just ask. You’ll never know unless you ask. I can’t tell you how many opportunities I missed simply because I was afraid to ask for what I needed or wanted.
  • Know that there will be times and you’ll get what you want, and times you won’t. Sometimes I get what I want when I want it; sometimes I don’t. That’s life, and I’ve got to live with it.
  • Have a Plan B. Be prepared in case you don’t get what you want. Are there alternatives and you can live with? Is there another option?
  • What can you do in the future to better prepare for similar circumstances? In my particular case, I can perhaps bring the snacks with me or eat a little something before I leave for the airport. Think I’m alternatives that work for you.

Today I invite you to ask for what you need and want in a providing of situations.

Pick Your Battles Carefully

Practice when to take acton and when to let go

An empty interior with a door shaped like a keyhole

We arrived as scheduled at the hotel of choice for a two-week stay. It’s always been one of my favorites. My husband and I checked into our room, only to discover that we were located directly above the garbage dump, the loading dock, and the motorcycle pit. As I’ve learned to do, I took responsibility for my feelings and call the manager for assistance.

“We’re regular visitors to this hotel,” I said. “Can you move us to another room, please?” “I’m sorry. I’m not able to change your room without assessing an additional $250 charge. That’s the hotel’s policy.”

A little put off by his unwillingness to accommodate us, I asked, “Is it hotel policy to put regular customers over the garbage dump?” Undisturbed by my obvious disapproval, he simply said, “There was nothing we can do for you at this time. You can check back with me in a few days.”

“What about a dinner voucher for my husband and me for the inconvenience? It’s very noisy over the loading dock, and the smell of the garbage dump seeps into our window,” I said. “No, I’m sorry. We are not able to provide that for you at this time. I can, however, offer you a free drink at the pool.”

When I got off the phone, I was livid and gave myself permission to be mad for about an hour.

Then I read Step Three and recited the Serenity Prayer.

Step Three: Made a decision to turn our will and our lives over to the care of God as we understood him.

Serenity Prayer: God, grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference.

In that moment, I thought, “What can’t I change?” First, I couldn’t change the hotel manager’s mind. I asked, he said no. Second, I couldn’t stop the noise from the garbage dump, the unloading of the truck, or the motorcycles revving up. And third, I couldn’t get another room without paying more money.

Then I thought, “What can I change?” All I could think of was myself and my attitude. That was it. I repeated the Serenity prayer and I knew I had a choice – actually, lots of choices. What were my choices? To move to a different room and pay the extra fee. To stay in the room and accept the situation as it is. To stay in the room, complaint for two weeks, allow resentment to destroy my vacation, and then blame the manager.  Or demand my money back and go to another hotel. They were all valid choices. Someone better than others. And I could to make my choice. The wisdom to know the difference is about having the courage to choose wisely and carefully. It’s knowing or what I can control and what I can’t. After talking it over with my husband, we decided to pay the extra money to a more comfortable room.

There are times when it’s appropriate to fight a battle because of the principal. There are times to know when it’s best to let go and claim victory in the letting go. Knowing when to do which is the challenge, and the gift. The wisdom to know the difference.

All we can change it ourselves: our attitude, our behavior, or feelings, and our beliefs. Nothing more. We can’t change other people’s attitudes, behaviors, feelings, or beliefs.

 

 

Success. Obstacles. Core Beliefs.

Core Beliefs as Obstacles to Success.

Successful. Women. Janice Howroyd.

We are what we believe, and we create our reality based on what we think.  What do you do today (or not do) that can be traced back to a childhood belief?  For example, as a kid, were you taught that vegetables were good for you?  If so you either love vegetables because you believe they were healthy, and you want to be healthy, or you hate them because you rebelled against being told you had to eat them.  Either way, your belief about vegetables defines your relationship with them today.

Let’s tie this theory of beliefs and outcome to goals. If you grew up believing you could have anything in the world you wanted, you would likely take actions that supported that belief.  So it wouldn’t be a surprise if your life turned out exactly as you wanted it. Likewise, if you grew up believing that you were not good enough or smart enough to have what you wanted, then there was a strong likelihood that you would not get your heart’s desire.  A self-fulfilling prophecy.

Our beliefs are powerful and if we’re not careful, they will control our destiny. 

What do you believe? How are those beliefs impacting your dreams and goals?

This week why not spend some time exploring what it is you’d like to happen for the rest of this year.  Then, I invite you to honestly assess your beliefs and feelings about it. You may be surprised at what you find, particularly if what you find is an obstacle to your success.

Let’s get you busy taking action. It’s an Esteemable Act.  To read more on how you can change your beliefs in order to live the life you want, take a look at Esteemable Acts: 10 Action for Building Real Self Esteem

 

Join my conversation on FacebookFacebook Esteemableacts Fan Page, or my Facebook Law Page, you can also interact with me on my Twitter Esteemable Acts page, Twitter Law Page, or on LinkedIn. Feel free to subscribe to my newsletter.

Stop And Smell The Roses.

It’s an Esteemable Act to stop and smell the roses.

Good health. Yoga woman relaxing by seaDaily Meditation.
For many years, I diligently and faithfully read my daily meditations. I took my time while reading and digesting every single word, carefully making notes and highlighting sections, which caught my attention.  I weaved the message of the day into my daily activities.  Reading my daily meditation was a part of my routine, just like taking a shower, brushing my teeth, and pressing my clothes. Reading my daily meditations was a great way to start the day and helped me to maintain some semblance of balance throughput the day.  But over the years, I became lazy and careless in my approach to my readings.  I rushed through them, rarely understanding a word that I read. As a result, I missed the essence of what keeps me grounded.

Do you Understand What you Read?
Do you really take the time to understand the meaning of your daily readings? On average, I’d imagine too few of us do. When we skim through our readings, we miss the real benefit of these powerful, inspirational, mind-altering tools. There are powerful riches to be found in our daily readings, which give us the means to change a bad day, avert a disaster, calm a nerve, think through a problem, or simply untwist a mind wrought with anger. Think of a time when you needed help in making sense of an experience and you opened a spiritual or inspirational book to just the right page, seemingly by accident. When we don’t process what we read, how can it help us?

Benefits of Investing the Time to Slow Down.
Yet if we invest the time, we will experience more abundance and a greater sense of serenity. We’ll discover tools for living that previously eluded us. We’ll feel better equipped to handle situations that used to baffle us because we’re participating in our solution. We’ll know a new freedom and a new happiness because we’ll know we are not alone.

Today, I invite you to stop… and smell the roses.  You can start that practice by reading, understanding, and really digesting your daily inspirational readings. The more you practice reading for understanding, the easier it becomes and the more you will benefit.

Join my conversation on FacebookFacebook Esteemableacts Fan Page, or my Facebook Law Page, you can also interact with me on my Twitter Esteemable Acts page, Twitter Law Page, or on LinkedIn. Feel free to subscribe to my newsletter.

Disclaimer.

FTC.

Disclaimers

Disclaimers

More and more we are seeing disclaimers at the foot of websites, on social media pages, in direct mailers, in 15-second TV ads, in videos, and on products.  The savvy marketer understands the importance of affixing disclaimers to their advertising material.  Yet, while they may understand the need for disclaimers, they do not often properly draft them or place them, nor do they truly appreciate the “clear and conspicuous” requirement.

Both federal and state law govern advertising of products and/or services.  In particular, the Federal Trade Commission(FTC) has adopted an reasonable definition for a “clear and conspicuous” disclaimer:

“When written, clear and conspicuous information generally is printed in a type size that a consumer can readily see and understand; that has the same emphasis and degree of contrast with the background as the sales offer; and that is not buried on the back or bottom, or in unrelated information that a person wouldn’t think important enough to read. . . . When disclosures are oral, clear and conspicuous means at an understandable speed and pace and in the same tone and volume as the sales offer.”

The National Advertising Division of The Council of Better Business Bureaus (“NAD”) has adopted a similar approach in determining whether a disclaimer is sufficiently “clear and conspicuous”:

“Factors to be considered in assessing whether material product information is clearly and conspicuously disclosed include: the prominence of the information that needs to be disclosed, its proximity to the underlying claim that it is intended to qualify and (particularly in the case of Internet advertising) the likelihood that consumers will have notice of the existence of this information before making a purchase.”

In order for a disclaimer to really be effective, it must be easily understood.  One way to accomplish that is by using language appropriate to your target market.  For example, if your target market consists of children, then your disclaimer should include more disclosures and appropriate disclaimers than if you were advertising to adults.

What about you, do you have disclaimers?

If so, have they been properly drafted in language that could pass the “clear and conspicuous” test? Have they been properly placed? If not, fix it, before it is too late.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Feel free to join my conversation on my Facebook Fan Page, on my Twitter page, in one of my LinkedIn Groups.

Use Policy. Social Media.

Social networking is the hottest discovery since email. It’s fun, fast paced, interesting, and allows you to connect with friends, colleagues, and clients in a way that you never could before. And for entrepreneurs and small business owners, it levels the playing field by allowing you to develop a network and marketing plan at a fraction of the cost. BUT don’t be lulled into thinking you can act with impunity. With all the good social networking can accomplish and the ease in which you can use it, there are landmines to be aware of.

Over the next few weeks, I’ll address a number of legal issues you should be aware of when playing in the social media sandbox, and actions you can take to side-step them. The first issue is the most basic and the easiest for you to comply with–having a social media use policy.

Have a social media use policy.
Do you have a social media policy in your work place? Do you think you need one? The average small business person does NOT have a policy on what’s acceptable behavior in their office, with regards to  social media use. Yet without a policy, which let’s people know what your expectations are, you can’t hold them accountable.  Whether you are a large or  small business, or sole proprietor, you should have a written policy letting people know, what you expect, in terms of their behavior in your workspace.

Communicate your policy.
Having a policy is essential to the effective running of your business.  But a policy alone is useless, unless everyone with a need to know, knows about it. So who needs to know about your social media use policy? At a minimum, the following people need to know about your social media use policy:

  1.  Full time staff
  2. Temporary staff
  3. Part-time workers
  4. Independent contractors
  5. Consultants
  6. Clients who visit and access your computers

Enforce your policy.
Having a policy and communicating that policy are all well and good.  But if you have a policy and don’t enforce it, or you enforce it against only certain people, then it is as if you have no policy at all.

Until next time, beware of social networking landmines!

Technology. YouTube. Terms.

You Tube and Technology.

Terms. YouTube.

Terms. YouTube.

I love technology. It’s a wonderful tool, which makes our lives easy, fun, and more efficient. We use technology to communicate, to market, to create, to learn, and to share with others. It’s hard to imagine what we would do without it. Yet, with all the many advantages that come with our use of technology, there are a plethora of challenges, and terms and conditions that must be followed.

Whether driving your car on the freeway, negotiating traffic on a local street, or knowing what’s yours for the taking and what’s not, there are terms and conditions—rules that must be followed. You can choose not to follow those rules. You can choose to outright break them. But regardless of your reasons, if you break the rules, if you don’t abide by the terms and conditions, you’ll have to pay. Look at it this way, if you are adult enough to do whatever you feel like doing, then be adult enough to accept the consequences.

Internet.

Like it or not, those rules also apply on the Internet, especially social media venues, such as Second Life, Facebook, Instagram, Pinterest, LinkedIn, Twitter, and YouTube.  Not everyone uses technology in the same way. Nor does everyone have the same value system when it comes to the use of cool technology devices and platforms. For example, what’s one person’s porn is another person’s art. And while we all have our own opinion as to where the line gets crossed, there are rules we must follow, at least on the Internet. Regardless of our personal views, we all have to follow the rules or pay the price.

My advice, if you want to fight and can afford litigation—go at it!  On the other hand, as always, my suggestion is think preventatively. READ and UNDERSTAND everything BEFORE you sign (or agree to the contractual Terms of Use). Once you sign, you are bound. And while you absolutely have the right to fight, you will have to pay to play.

Until next time, I’m Attorney Francine Ward helping you make better choices. Join the conversation on Facebook Fan pageTwitter Legal PageGoogle+, or in one of my LinkedIn Groups.