The Blog

Someone once said, “Imitation is the most sincere form of flattery.” And maybe that’s true when it’s your best friend copying your cool outfit or a stranger asking for your photo of your hairstyle. But clearly whoever said that wasn’t a business owner. I see you out here pouring your blood, sweat, and tears into building a business that you’re proud of. Always pushing yourself to think outside of the box, and bring fresh ideas, and innovative solutions to your people. The last thing you want to happen is for another business to rip off your work and show it off as their own. Luckily for you, the law has your back. 💁🏼‍♀️ And as your friendly neighborhood business attorney, I’m here to tell you that taking action against copycats isn’t a mean girl move. You can and should do what you must to protect your business.   Do you have a copycat on your hands? Here are 5 steps you can take to protect your biz!   Step 1: Register your work for copyright protection. The good news is that copyright protection goes into effect as soon as you publish your work! But in order to pursue any legal action, you’ll need to REGISTER YOUR COPYRIGHT so you won’t be liable for any fees or damages.   Step 2: Notify the copycat. As frustrating as it is, sometimes copyright infringement is an honest mistake. If you discover that someone is copying your work, you can shoot them a message letting them know that you’re aware of it and that it’s protected under the law. Aka “Swiper, no swiping!” More often than not, any mention of legalities is enough for them to scurry away and take it down. 😉   Step 3: Ask the hosting website to take the material down. On that note, you’re protected under the DIGITAL MILLENNIUM COPYRIGHT ACT and you can ask the infringer directly to take the content down. No one wants to get sued, so this is usually an easy ask!   Step 4: Hire a lawyer to send a cease and desist letter. If the mention of legal action doesn’t turn your copycat into a scaredy cat, it’s time to actually take action. HIRING A LAWYER to send a cease and desist letter threatens a costly lawsuit in an official manner. It might not be as exciting as splurging on a new outfit or a trip to Mexico, but it’s worth it for your business.   Step 5: Buckle up for a lawsuit. If it escalates further and the copycat refuses to take down the content, it’s time to buckle up for a costly lawsuit. Make sure to discuss with a lawyer if it’s financially worth it! Starting the process is expensive and quite frankly migraine-inducing, but sometimes it’s the right move!   It’s no secret that the online world is like the wild wild west. You never know who is lurking around the corner, trying to capitalize on your hard work! The best move you can do for your business is to make sure it’s protected before anything happens. So if the time comes, you’re armed and ready to claim what is yours. If you haven’t yet, grab my free START-UP LEGAL GUIDE! It breaks down everything you can do to legally protect your biz from the start. Always cheering you on! XO Berkley

"WHAT IS THE DIFFERENCE BETWEEN AN LLC AND A TRADEMARK? An LLC is a type of business entity that acts as a wall around your personal assets so that if your business were to ever get a judgment against it, a creditor could not take your personal assets like your bank account, car, or home. A trademark protects a name, logo, or slogan. Registering a trademark (like your business name) prevents other people from using your name, or a similar name in your industry. "DO I OWN THE EXCLUSIVE RIGHT TO USE MY BUSINESS NAME BECAUSE I FILED AN LLC WITH THAT NAME IN MY STATE?" No! While your state won't let you register your LLC with the same name as someone else who has registered it in your state, only federal trademark protection gives you the exclusive right to use your name/tagline/logo in your industry. "SHOULD I FORM MY LLC OR MY FILE MY TRADEMARK APPLICATION FIRST?" As a general rule of thumb, my clients hire me to do a comprehensive trademark search (this covers existing United States federal applications and registrations, and common law results like state trademark filings, domain names and social media accounts) before filing for their LLC. Once they've formed their LLC, we file the trademark application for their brand name (since you'll want your LLC to own the trademark). Many times clients already have their LLC formed when they start the trademark process, and in that case we'll do the trademark search and application after the LLC is formed. "WHAT HAPPENS IF I DON'T TRADEMARK MY NAME?" Trademarking your name is a business investment, so sometimes people understandably have to hold off on the expense until the business starts growing. The downside to not trademarking right away is that someone else could come along and trademark the name first, and send you a cease and desist for copying them. It's often worth a cost-benefit analysis of the how expensive (and annoying) a rebrand would be vs. making the investment sooner. Because trademark applications are at an all-time high (thanks to Covid and the thousands of people starting online businesses), the US Patent and Trademark Office is taking a year + to approve applications, so the sooner you apply, the sooner you have trademark protection (and can make money off of your name with licensing opportunities). Contract templates and trademarks are my two favorite legal things, so I set aside 2 mornings per week to talk to you ladies. If you've been thinking about trademarking your name or logo and want to learn about the process, feel free to book a call with me through my LAW FIRM.

HERE ARE A FEW OF THE QUESTIONS I'VE BEEN ASKED LATELY ABOUT TRADEMARKS. “What is a trademark and why should I have one?” A trademark is any word, phrase or design that identifies the source of your goods or services. A trademark gives you the exclusive right to use your name in your industry. Trademark registration gives you protection against would-be copycats in all 50 states. Trademarking allows you to stop competitors from using your name, make money off your name with licensing agreements, gives your brand credibility, and makes sure you have a name that will last. "What kind of trademarks do I have in my business?" Here are all of the things you can trademark - most businesses have at least 3. Your business name Your logo Your course name Your catchphrase/slogan A hashtag Your podcast name Your membership community name The name of your product or services (you probably have a few) A distinctive sound or color that identifies the source of your goods/services (think red bottom shoes). "When Should I Trademark?" You can trademark a word or design either when you are using it in commerce or when you have a good faith intention to use it in the future. The filing date of a trademark application at the USPTO constitutes “constructive use” of the trademark and this date gives you priority over someone wanting to trademark the name after you. The sooner you file, the sooner you beat would-be competitors for the rights to your name. Ready to get your brand protected? BOOK A 15-MINUTE CALL with me to learn about the process.

Do you like to procrastinate? I know as I lawyer I am supposed to say YOU HAVE TO DO ALL OF THE LEGAL STUFF RIGHT NOW, and it is all important, but in reality some things are riskier than others to leave until later. Here is a list of the legal things that should be on your to do list, in order of their urgency. 1. HIRING AN ATTORNEY TO DO A COMPREHENSIVE TRADEMARK SEARCH FOR YOUR BRAND NAME Getting your business name wrong, by choosing one that is already taken, is one of the most expensive and easily avoided mistakes you can make when starting your business. At a recent business brunch I attended, the keynote speaker was asked what her number 1 business mistake was, and I bet you can guess her answer - not making sure her business name was available before she launched her media agency (and had to change it later). You can avoid an expensive rebrand and a stressful cease and desist letter by hiring an attorney to do a comprehensive trademark search to make sure your name is available. 2. FORMING A BUSINESS ENTITY Forming a business entity protects your personal assets. It’s not retroactive, so if you make a costly mistake in your business and get sued, you can’t then get a business entity and expect it to protect you from the prior act. You can form the LLC in the name that you just cleared with a trademark search. 3. TRADEMARKING YOUR BRAND NAME Trademarking is the only way to make sure you have the exclusive right to use your business name in your industry. Whoever filed first has priority to the name in the eyes of the USPTO, so timing down to the day matters. 4. YOUR CLIENT CONTRACT AND/OR TERMS OF USE Your CLIENT CONTRACT is what is going to protect your primary source of income. Ditto TERMS OF USE if your income comes from a course or digital product. 5. COPYRIGHTING ANY ORIGINAL WORKS OF AUTHORSHIP. Copyrighting is the only way to be entitled to 25k in damages if someone steals your original works of authorship like pictures or course video content. It’s not retroactive, so timing matters. 6. CONTRACTS WITH YOUR INDEPENDENT CONTRACTORS CONTRACTS WITH YOUR INDEPENDENT CONTRACTORS are important when your business expands. They outline the services provided, set out a timeline for payments, talk about how taxes will be paid, how out-of-pocket expenses are handled, protect intellectual property and confidential information, and prevent independent contractors from taking current employees or clients. 7. HAVING A PRIVACY POLICY, FOLLOWING FTC ADVERTISING & AFFILIATE RULES Having a PRIVACY POLICY is legally required and you can get in trouble with the government and third parties if you don’t accurately state how you collect, store, and share user data. Chances of running into problems for not having a privacy policy are less likely than running into a competitor using a similar name. Ditto following FTC advertising and affiliate rules. The government has limited resources and is likely more concerned with Facebook and the Kardashians breaking the law. Not to say these things don’t matter or you won’t get in trouble - having a privacy policy is a simple step and the FTC has easy to follow GUIDES for affiliate and advertising rules. Ready to get legally protected? Check out my CONTRACT TEMPLATES, or BOOK A CALL with me to chat about what legal protections your unique business needs.

Hello from Portugal! Over the last 8 weeks, I have traveled more days than I have spent at home. I have been able to do this, working less than 20 hours a week, and I'm making double what I made working for someone else. Here are the top 4 things that have made this possible. 1. I systematized my workflow and outsourced everything outside of my zone of genius. Systems may seem like a scary concept, but you probably already have a workflow that you rely on without realizing it. To start, write down your entire process of how things work in your business, from the moment you acquire a new lead. For instance, when someone fills out a contact form to work with me, they are automatically entered into my client management software. From there, leads are sent an automated email prompting them to book a call with me. Once I’ve had a call with someone, I have mapped out a series of steps for my virtual assistant to take (from creating a client matter, to sending proposals and contracts). I save ten hours of work every week by delegating these seemingly quick administrative tasks. Along the same lines, I outsource graphic design, and anything super techy or data-based (like ads). I use my INDEPENDENT CONTRACTOR AGREEMENT for all of my part-time hires, so I know my confidential business info is safe. By outsourcing, I can handle an increased volume of clients and focus on the things I love (like TRADEMARKS, product creation, and writing these emails). 2. I chose work that I love Work is easier when it’s something you enjoy doing. I tend to procrastinate tasks I don’t enjoy (like sending a nasty lawyer email when I was doing litigation). I actually enjoy practicing trademark law and creating new contracts and offerings for my clients. Plus, I get to work with amazing people – entrepreneurial women who are building incredible businesses. 3. I stopped over-complicating client acquisition When I first started my business, I spent a lot of money on my business that I didn’t need to spend. I learned that getting clients was actually a lot simpler than I was making it out to be. Once I made the shift and started spending time on the things that mattered, I saw results immediately. 4. I make passive income with digital products In addition to working 1:1 with women on TRADEMARKS, copyright, website policies, and contracts through my LAW FIRM, I have a CONTRACT TEMPLATE SHOP that operates as its own business. While creating this business did require the initial work of drafting the agreements, and overhead of web design and hiring attorneys to review them (like any normal start-up overhead), it now has unlimited potential for growth, without having to trade time for money or worry about physical inventory. Want to learn more about working smarter, not harder? Inside THE BUSINESS STUDIO, you’ll basically have in-house counsel combined with business coaching for a whole year (me 🙋‍♀️) . Not only will I be making sure your business is legally legit (unlimited trademarks & access to contract templates + one-on-one time with me + text access), I will be teaching business workshops and bringing in the experts who helped me build a 6-figure remote online business in less than a year. Ready to join? I only have THREE spots left! APPLY FOR THE BUSINESS STUDIO

1.     Community is Key Working from home is something we are all used to by now in the age of COVID, so when Florida started opening up I knew I had to get back to making in-person connections. I thrive off human interaction (hello fellow extroverts) so making community a priority kept me sane in an otherwise work environment of my home office. 2.     It’s a Small World Afterall Thinking of not paying your bill? Of ghosting someone? Of sending a nasty email? You may want to think again. This world is smaller than you think, and people talk. As an example, my friend was picking out a spa for us to go to for my birthday next month. She sent me the one she had in mind, and it was the same one I knew had not paid my client’s bill last month. Needless to say, we are not going there. If you signed a contract with someone, live with the terms of your contract. 3.     No boundaries = burnout This lesson was a tough pill to swallow. When you own your own business, it is kind of like your baby. You feel like it’s your duty to answer every email right away (even past business hours) and you work on the weekends to get ahead. I didn’t take a vacation for about two years, and this winter I realized I wasn’t going to last much longer if I didn’t create a balance. For me, boundaries look like having a work-free vacation every few months and putting my phone in the other room during set times during the day. 4.     I Get By with a Little Help from my Friends  It’s very easy to get lost in the weeds when you’re the CEO, head attorney, creative director, marketing director, and receptionist. It took about 3 hours creating a single graphic in Canva before I realized I needed to stick to my zone of genius and outsource the rest. Not only does my business run more efficiently when I stick with my expertise, but I have learned so much from the women who help me with systems, social media, and marketing. Their knowledge has been invaluable to my own development as a business owner.   5.     People are Paying for YOU  People are not buying a product, they are buying the person behind the product. It wasn’t until I had followers that knew, liked and trusted me that I started seeing sales. This happened by showing up (in stories, on podcasts, in-person) and making connections. In the early days of my business, I imagined that I would be purely product based, i.e. digital template sales. I quickly learned even in the age of COVID and efficiency, people want one-on-one help. My advice to those of you who are strictly product-based or strictly service-based is to try to incorporate both. 6.     This is a Bonus Because I Couldn’t Not Include it – TRUST YOUR GUT. You will know whether or not you should take a client or project. That little feeling in your stomach will tell you. It’s up to you to listen.

Starting a business is so exciting – the branding! The color scheme! The collaborations with other like-minded women – that a lot of the time we forget about protecting what we have worked so hard to create. Here are the top 5 legal mistakes I see women make when starting their online businesses. 1)    Not Forming a Business Entity Forming a business entity that limits liability acts as a wall around your personal assets (your home, bank account, car, etc.) in the event someone were ever to sue your company and get a judgment. While both LLCs and Corporations limit your personal liability, the two entities differ in terms of how taxes are paid, how money is raised, and what paperwork needs to be filed. It’s a good idea to consult an attorney and/or accountant to see which is right for your business needs.  2)    Not Having Contracts  Sometimes business owners feel awkward making clients sign such formal agreements. But CONTRACTS actually help to avoid uncomfortable situations by establishing expectations and setting clear boundaries between parties. Contracts set forth the scope of work, define deliverables, and state how parties get paid and what happens when one party fails to pay. They limit a party's liability and determine where and how disputes can be handled. You must have a client contract to protect your income, an independent contractor agreement with your contractors, and a non-disclosure agreement with anyone who comes into contact with confidential business information. 3)    Not Having Website Policies Did you know that if you don’t have a PRIVACY POLICY on your website you could be fined by the government or sued by private third parties, or have your Google/Facebook/Instagram ads shut down? Your Privacy Policy tells users how you collect and store user data. Both California and the EU have privacy laws that require specific legal language in your Privacy Policy. Your Website Terms of Use is also one of those very important legal documents located in the footer of your website. It’s your contract with anyone who visits your website or purchases your products, it tells visitors how they can behave, what kind of comments they can post, states any user account policies, explains your refund and payment policies, protects your intellectual property, and finally, spells out how and where any disputes are handled.  4)    Not Having Disclaimers DISCLAIMERS are necessary if you giving any kind of advice on your website that involves an industry requiring any kind of license (medical, legal, financial industries). A disclaimer states that the reader should not rely on your advice, which protects you from liability. If you are receiving money for a product or were given a product for free in exchange for an endorsement, you also need to have an affiliate disclaimer per the Federal Trade Commission. 5)    Not Protecting Your Intellectual Property  You’ve spent time and money creating your digital product (photos, e-books, videos, courses, blog posts) but you have very little leverage against anyone who steals these things from you unless you register for copyright protection. You’re going to want to trademark your brand name and course name to prevent copycats too.     Want to learn more about how to legally protect your business?Download the FREE Start-Up Legal Guide!

“They say imitation is the sincerest form of flattery, but sometimes being copied doesn’t feel very good. When I was young, my little sister loved to copy my outfits. One time during a vacation, I had to change three times because she kept changing her outfit to match mine. I finally thought I had gotten away with expressing my individuality in a denim-on-denim outfit when my sister and I both got in the car with unmatching clothes. Turns out my mom had secretly conspired with her and brought her an outfit to match mine, which she promptly changed into in the car. Now, of course, she is the way more fashionable sister and I steal from her closet all the time. Having your work copied in a business setting feels particularly icky. You’ve worked hard to design your piece of art or literature, and someone else shouldn’t get to take credit or make money from your creativity.  Luckily, the law agrees. Copyright law protects original works of authorship, which includes things like literary, musical, architectural works, and motion pictures. So what can you do to protect your business and stop copycats? STEP 1: REGISTER YOUR WORK FOR COPYRIGHT PROTECTION Copyright protection exists automatically the moment the work is created. But you’ll want to REGISTER YOUR COPYRIGHT so that you can sue under the federal copyright statute and be eligible for statutory damages and attorney’s fees if you’re successful in litigation.   STEP 2: NOTIFY THE INFRINGER  It never hurts to ask nicely. When you notice a person or company is copying your design, you can reach out to them and educate them that they are using your work, and that it’s protected under copyright law. It may be an innocent mistake, in which case they will probably just take it down.   STEP 3: ASK THE HOSTING WEBSITE TO TAKE THE INFRINGING MATERIAL DOWN If a company is infringing on your work on a website or photo-sharing platform, under the Digital Millennium Copyright Act, you can reach out to the service provider and ask that they take the infringing material down. Note: the website is motivated to do this because they do not want to get sued. Read more about the DMCA takedown process HERE.   STEP 4: HIRE A LAWYER TO SEND A CEASE AND DESIST LETTER Nobody likes hiring a lawyer. I get it, you’d rather spend your money on a pair of Louboutins. Or if you have a kid who steals your money, on groceries. You can write this letter yourself, but since the object of a cease and desist letter is to scare the copycat into stopping their behavior without you having to pursue a costly lawsuit, you’re better off ponying up the money now.  If they don’t listen…   STEP 5: BRING A LAWSUIT If the person/company stealing your work is still refusing to take down the infringing material, you may bring a lawsuit if your work is registered. Lawsuits can be expensive (like 10k+ to start) so it’s important to know what you’re able to gain. Under the Federal Copyright Act, remedies include an injunction (taking down the infringing material), damages, and attorney’s fees. You’re either able to recover your actual damages and any additional profits of the infringer, or you can elect statutory damages, which range from $750 to $30,000. When the copyright owner can prove that infringement was committed willfully, the court may increase the award of statutory damages to up to $150,000. Want to learn more about how to legally protect your business?Download the FREE Start-Up Legal Guide!

“Blogging is just a hobby right? Maybe not so much. The content marketing industry is projected to be worth $400 billion by the end of 2020. There is one blog for every three people in the world. Blogging is a business venture like any other, and therefore subject to formalities and laws like traditional businesses. Here are 3 common mistakes I see bloggers make and what you can do to avoid them…   MISTAKE #1: NOT USING REQUIRED AD DISCLOSURES If you were given money for a product or were given a product for free in exchange for an endorsement the Federal Trade Commission requires you to disclose it. These disclaimers need to be “clear and conspicuous,” for example in the first few lines of an Instagram post before the “more” button or within the blog post itself (i.e. not just buried in your terms and conditions). Furthermore, your endorsements have to reflect your actual opinions and experiences with the product. You can read more about FTC affiliate/endorsement disclaimers HERE:    MISTAKE #2 NOT HAVING TERMS AND CONDITIONS/PRIVACY POLICY/ APPROPRIATE DISCLAIMERS  When I started my blog back in 2014 I didn’t have a Terms and Conditions and Privacy Policy because it felt overwhelming to draft one (and I’m a lawyer). I get that it is something a lot of creatives put off because they don’t know where to begin, but the truth is these documents are so important to protect you from liability. If you have a website you need a Website Terms of Use, which is your contract with visitors of your site. It tells users how they can behave, what kind of comments they can post, and limits your liability. You also need a Privacy Policy, which tells your website, visitors, how their personal data is being stored and shared. You’re legally required to have one if you’re reaching anyone in the EU or California and if you run Google or Facebook ads, or use Google Analytics.   MISTAKE #3 RELYING ON BRAND CONTRACTS AND GIVING TOO MUCH AWAY  Brands often have the upper hand in the brand-influencer relationship due to their resources and legal teams. As a result, Influencers are often presented with contracts that have very unbalanced terms. For instance, these contracts could provide that the Brand is going to own all of the Influencer-created content during the brand campaign forever. That means the picture you have promoting the brand could end up on that brand’s billboard 10 years from now, and you wouldn’t get any extra $ (unless it was provided for in your contract). The solution?  If you’re an influencer/blogger you can negotiate things like giving away your intellectual property rights and exclusivity requirements by asking for more $.  Want to learn more about how to legally protect your business?Download the FREE Start-Up Legal Guide!