There’s no better time to talk about shock advertising than during the campaign of Donald J. Trump. The ‘Teflon’ candidate has rewritten the rulebook on political manuevering, by doing and saying everything that grabs a headline. Forget the information economy. We are in the age of the attention economy. There is enormous value to be captured simply by commanding the attention of the consuming public, if only for a fleeting moment. For a long time, shock marketing has been limited to a select few companies pursuing short term plays....
You plan for business success of course. But do you start off with governance documents in place that will facilitate orderly exit when that success is achieved? If your business is like most small businesses, the answer is no. A common assumption among owners of new ventures – if it achieves success, everyone will be happy enough to sort out the spoils in a friendly way. The reality is much more complicated. Success will turn out to be defined differently by each owner. One is ready to exit, the...
What’s in a Name? Trade names, Fictitious Names, and Trademarks Explained
Something as simple as a business name can actually cause a lot of headache and confusion for business owners. Most states allow for several types of names to be registered for a business. These names serve different purposes and can be mistakenly or unnecessarily registered, and the confusion can also spill into trademark strategy. Most commonly, we find a situation where a business has registered a trade name believing it will also establish trademark rights.Here’s what the different names mean: First, a company’s basic ‘name’ is its actual legal...
Isn’t advice great! Everyone has two cents to give. The Upstart Business Journal recently ran two pieces concerning advice to entrepreneurs that stood out. The internet is a sea of the overused and useless alike, but these two catchy titles at least captured a click-through: First is a list from Dan Graham, founder of BuildASign.com, sharing his top five worst pieces of advice he ever received. There’s infinity ‘top five best tips’ out there, so a worst five list is intriguing on its face. Here are the thorns in...
Birthday Bash. Will the classic jingle survive as proprietary? UPDATE: NO!
After an adverse ruling back in September, Warner music has decided to settle the plaintiffs’ claims. Chief among the terms – Warner music will concede the public domain status of the song and repay significant amounts of licensing fees it received in the past. This is certainly a big development in music law. Intellectual property this old and this famous doesn’t often get re-characterized in its entirety. Does this mean we will lose all those create derivative versions at chain...
Among the myriad regulatory changes in the last few months, at least two are of note to the small business community here in Ohio. First, there are now rules for the ride-sharing game here in Ohio. State regulations have been passed regarding the insurance requirements for ride-sharing drivers. The largest operator of ride-sharing platforms, Uber, has expressed approval of House Bill 237. For drivers, this bill has a few key impacts: It defines drivers as independent contractors for insurance purposes at least. The responsibility to carry insurance is with...
Local payment processor Vantiv is caught square in the middle of the New York effort to ban DraftKings and similar daily fantasy sports (DFS) betting platforms. Vantiv handles the payment flows for DraftKings and is faced with a difficult choice: Continue processing payments as normal according to their agreement with their client DraftKings or cease performing some or all services as a way to limit potential exposure if indeed the DFS business model is ruled illegal. This legal issue heated up in a big way for DraftKings when the...
After years of lobbying for above-bore crowd-based funding (and an equal number of years of speakeasy financing), the Securities and Exchange Commission has published final rules for permissible crowd based funding, set to become effective this May. In brief, this exemption will operate like the other registration exemptions: soliciting entities must file certain information to demonstrate eligibility of the exemption. Here are the highlights: 1. Soliciting entities are able to seek up to $1M in aggregate funding per 12 month period. 2. For individuals whose net worth and annual...
The last two or three years have witnessed considerable consolidation activity among large law firms. The trend is expected to continue into 2016. What are the implications of this for clients and the consuming public? Is bigger better? Some reasons for the merger trend are pretty easy to identify. The arc of the legal industry over the last two decades has slowly moved towards improved efficiency. Clients expect more to be delivered for their legal dollar. Large firms use a lot of resources and vendors, and this creates considerable...
Start smart. Run strong. Finish with success. It’s never too late to button up your small business and, unlike your fitness goals, small business resolutions can be achieved by the end of January! Here’s our list of essentials for any small business. Resolve to make it happen: Have an updated owner’s agreement. Regardless of the form of your business (corporation, partnership, LLC, etc.) every business should have a written agreement among the owners spelling out basics of their arrangement. There are always three items that should be covered in...
Papering a proactive solution to business divorces
Ownership disputes within small businesses can become epic battles. Minority owners can face an additional challenge when trying to secure a remedy against the majority- their status often closes off access to practical recourse during and after the dispute. For example, the majority can authorize the business to fund the majority’s legal costs while the minority usually has to self-finance the litigation. Given the expense of fighting in court and the all-too-common ‘attrition’ mindset of attorneys, this alone presents a substantial hurdle. A recent case out of Maryland, Bontempo...
The franchise model is one of the most popular and effective methods to grow a business. Many of the largest brands are franchise systems. While the franchise method can enable rapid growth, it must also be respected for the substantial legal investment required to properly establish and operate the system. State and federal law provide robust remedies for persons in the position of a franchisee – whether real or not. That’s right, even an unintended franchisee can avail itself of franchise law remedies, including statutory damages, rescission, and attorney...
There has been some chatter this year in the tech startup community that reveals an early skepticism in private valuations. After the dot come bubble and the real estate bubble, lessons about the early warning signs of irrational valuation are perhaps better understood. Could these recent concerns about private valuations of tech startups be substantive canaries in the coal mine? Some of the remarks are specific to company valuations – questioning their legitimacy to be specific – but are otherwise sort of stereotypical concerns that don’t identify a particular, inflated company or companies. Check...
…Or something like that. Does your business have a will? Not a will to succeed, but a will will. A last testament will. A here’s-what-to do-when-the-proverbial-bus-hits will. If you are the sole owner and maintain substantial management control over day to day operations, what would happen to the business if suddenly you were no longer able to captain the ship? Why does this matter? Businesses are called going concerns for a reason – things are going, parts are moving, cash flow is cycling. Single owner/operator businesses are extremely vulnerable to a rapid...
Subcontractor vs Snubbedcontractor; The importance of payment terms.
Construction is a difficult enough industry by itself without the law creating extra heartburn, especially for the little guy. Whether acting as a general contractor or as a sub, small business parties need to be vigilant with their contract language. Among many provisions that can upend the unwary, the payment obligation language can quickly leave one side holding the bag. It pays to be on the right side here! Many construction contracts have payment language that reads in one of two ways. First, the GC’s obligation to pay can be contingent,...
Daily Fantasy Sports: A transactional lawyer’s dream industry
There’s an interesting dust up in the fantasy sports world. Apparently employees of the two largest fantasy sports platforms, DraftKings and FanDuel, are able to participate on the other company’s betting games. For obvious reasons, the companies have internal policies preventing their own employees from betting on games hosted by that company. This may seem sufficient to protect the integrity of the games, except for one industry characteristic: The data set for any given week of fantasy sports betting is substantially intermixed between the two largest providers because they...
The latest wave of energy in the startup space is focused on what’s called the shared economy. The shared economy is characterized by new services, often on a digital platform, that connect suppliers of basic services with consumers interested in them. The buzz in this sector of the startup field is all about the new middlemen – er middlepersons – that essentially broker a market of goods or services. Sometimes the brokerage element is disruptive to a traditional industry model. Think Uber. Uber does far more than connect drivers and...
A recent article on CBS News highlighted 5 challenges new business owners may face without necessarily anticipating them: Our experience confirms these challenges, but also suggests a few more to consider: Basic regulatory compliance: The local, state, and federal administrative compliance burden is more significant than most new business owners imagine, even if a business doesn’t operate in an industry considered ‘highly regulated’. The challenge is really about finding out what all must be done, because the three levels of government overlap in some respects but not others, and...
The relatively young sportwear brand Under Armour has made a name for itself as an aggressive defender of its brand. Most recently it has engaged a basically non-existent ‘threat’ called Armor & Glory. It claims the company’s shirts are confusingly similar because of ‘armor’. The company’s name and artistic focus are based on biblical passages, and aside form the word armor, does not appear to position itself as a high-performance competitor to the giant. Consistent defense of a brand mark is important to maintaining exclusive ownership. On the other hand, going...
The tip of the (drone) blade; exploring commercial deployment of UAV’s
Drones are exploding into everyday life at an accelerating pace. Just a few years ago the idea of mass adoption at the consumer level seemed a bit science fictiony (I just made that a word if it wasn’t), but hardly a week goes by now without drones hitting the news feed. Most drone news touches on other areas of law like personal injury, privacy, trespass, which are all very interesting in this nascent era of drones. That said, early adopters of UAV technology should also appreciate the implications of...
Cincinnati’s park system is at a crossroads of sorts, caught on the horns of two very appealing arguments. The parks appear destined for an up or down vote on a structural change to how they are funded and what those funds are used for. The ballot measure language – a Charter amendment no less – is already crafted and drafted. Proponents of change have put forward the ballot initiative. Mayor Cranley and a strong consortium of civic leaders have energetically proposed a tax levy to permanently support increased Cincinnati parks funding....
Is It Tam to Rethink Marketing? Trademarking Shock Advertising
There’s no better time to talk about shock advertising than during the campaign of Donald J. Trump. The ‘Teflon’ candidate has rewritten the rulebook on political manuevering, by doing and saying everything that grabs a headline. Forget the information economy. We are in the age of the attention economy. There is enormous value to be captured simply by commanding the attention of the consuming public, if only for a fleeting moment. For a long time, shock marketing has been limited to a select few companies pursuing short term plays....
Techniques to improve small-business owner-exits
You plan for business success of course. But do you start off with governance documents in place that will facilitate orderly exit when that success is achieved? If your business is like most small businesses, the answer is no. A common assumption among owners of new ventures – if it achieves success, everyone will be happy enough to sort out the spoils in a friendly way. The reality is much more complicated. Success will turn out to be defined differently by each owner. One is ready to exit, the...
What’s in a Name? Trade names, Fictitious Names, and Trademarks Explained
Something as simple as a business name can actually cause a lot of headache and confusion for business owners. Most states allow for several types of names to be registered for a business. These names serve different purposes and can be mistakenly or unnecessarily registered, and the confusion can also spill into trademark strategy. Most commonly, we find a situation where a business has registered a trade name believing it will also establish trademark rights.Here’s what the different names mean: First, a company’s basic ‘name’ is its actual legal...
Advice from all sides
Isn’t advice great! Everyone has two cents to give. The Upstart Business Journal recently ran two pieces concerning advice to entrepreneurs that stood out. The internet is a sea of the overused and useless alike, but these two catchy titles at least captured a click-through: First is a list from Dan Graham, founder of BuildASign.com, sharing his top five worst pieces of advice he ever received. There’s infinity ‘top five best tips’ out there, so a worst five list is intriguing on its face. Here are the thorns in...
Birthday Bash. Will the classic jingle survive as proprietary? UPDATE: NO!
After an adverse ruling back in September, Warner music has decided to settle the plaintiffs’ claims. Chief among the terms – Warner music will concede the public domain status of the song and repay significant amounts of licensing fees it received in the past. This is certainly a big development in music law. Intellectual property this old and this famous doesn’t often get re-characterized in its entirety. Does this mean we will lose all those create derivative versions at chain...
Regulatory Updates: Ridesharing & Securities
Among the myriad regulatory changes in the last few months, at least two are of note to the small business community here in Ohio. First, there are now rules for the ride-sharing game here in Ohio. State regulations have been passed regarding the insurance requirements for ride-sharing drivers. The largest operator of ride-sharing platforms, Uber, has expressed approval of House Bill 237. For drivers, this bill has a few key impacts: It defines drivers as independent contractors for insurance purposes at least. The responsibility to carry insurance is with...
Payment Processing Pickle
Local payment processor Vantiv is caught square in the middle of the New York effort to ban DraftKings and similar daily fantasy sports (DFS) betting platforms. Vantiv handles the payment flows for DraftKings and is faced with a difficult choice: Continue processing payments as normal according to their agreement with their client DraftKings or cease performing some or all services as a way to limit potential exposure if indeed the DFS business model is ruled illegal. This legal issue heated up in a big way for DraftKings when the...
Highlights of Regulation Crowdfunding
After years of lobbying for above-bore crowd-based funding (and an equal number of years of speakeasy financing), the Securities and Exchange Commission has published final rules for permissible crowd based funding, set to become effective this May. In brief, this exemption will operate like the other registration exemptions: soliciting entities must file certain information to demonstrate eligibility of the exemption. Here are the highlights: 1. Soliciting entities are able to seek up to $1M in aggregate funding per 12 month period. 2. For individuals whose net worth and annual...
Trendspotting: Law firm consolidation
The last two or three years have witnessed considerable consolidation activity among large law firms. The trend is expected to continue into 2016. What are the implications of this for clients and the consuming public? Is bigger better? Some reasons for the merger trend are pretty easy to identify. The arc of the legal industry over the last two decades has slowly moved towards improved efficiency. Clients expect more to be delivered for their legal dollar. Large firms use a lot of resources and vendors, and this creates considerable...
Your 2016 small business resolutions
Start smart. Run strong. Finish with success. It’s never too late to button up your small business and, unlike your fitness goals, small business resolutions can be achieved by the end of January! Here’s our list of essentials for any small business. Resolve to make it happen: Have an updated owner’s agreement. Regardless of the form of your business (corporation, partnership, LLC, etc.) every business should have a written agreement among the owners spelling out basics of their arrangement. There are always three items that should be covered in...
Papering a proactive solution to business divorces
Ownership disputes within small businesses can become epic battles. Minority owners can face an additional challenge when trying to secure a remedy against the majority- their status often closes off access to practical recourse during and after the dispute. For example, the majority can authorize the business to fund the majority’s legal costs while the minority usually has to self-finance the litigation. Given the expense of fighting in court and the all-too-common ‘attrition’ mindset of attorneys, this alone presents a substantial hurdle. A recent case out of Maryland, Bontempo...
The Inadvertent Franchise
The franchise model is one of the most popular and effective methods to grow a business. Many of the largest brands are franchise systems. While the franchise method can enable rapid growth, it must also be respected for the substantial legal investment required to properly establish and operate the system. State and federal law provide robust remedies for persons in the position of a franchisee – whether real or not. That’s right, even an unintended franchisee can avail itself of franchise law remedies, including statutory damages, rescission, and attorney...
Early signs of the next bubble?
There has been some chatter this year in the tech startup community that reveals an early skepticism in private valuations. After the dot come bubble and the real estate bubble, lessons about the early warning signs of irrational valuation are perhaps better understood. Could these recent concerns about private valuations of tech startups be substantive canaries in the coal mine? Some of the remarks are specific to company valuations – questioning their legitimacy to be specific – but are otherwise sort of stereotypical concerns that don’t identify a particular, inflated company or companies. Check...
Where there’s a will there’s a way…
…Or something like that. Does your business have a will? Not a will to succeed, but a will will. A last testament will. A here’s-what-to do-when-the-proverbial-bus-hits will. If you are the sole owner and maintain substantial management control over day to day operations, what would happen to the business if suddenly you were no longer able to captain the ship? Why does this matter? Businesses are called going concerns for a reason – things are going, parts are moving, cash flow is cycling. Single owner/operator businesses are extremely vulnerable to a rapid...
Subcontractor vs Snubbedcontractor; The importance of payment terms.
Construction is a difficult enough industry by itself without the law creating extra heartburn, especially for the little guy. Whether acting as a general contractor or as a sub, small business parties need to be vigilant with their contract language. Among many provisions that can upend the unwary, the payment obligation language can quickly leave one side holding the bag. It pays to be on the right side here! Many construction contracts have payment language that reads in one of two ways. First, the GC’s obligation to pay can be contingent,...
Daily Fantasy Sports: A transactional lawyer’s dream industry
There’s an interesting dust up in the fantasy sports world. Apparently employees of the two largest fantasy sports platforms, DraftKings and FanDuel, are able to participate on the other company’s betting games. For obvious reasons, the companies have internal policies preventing their own employees from betting on games hosted by that company. This may seem sufficient to protect the integrity of the games, except for one industry characteristic: The data set for any given week of fantasy sports betting is substantially intermixed between the two largest providers because they...
Durable innovation in the sharing economy
The latest wave of energy in the startup space is focused on what’s called the shared economy. The shared economy is characterized by new services, often on a digital platform, that connect suppliers of basic services with consumers interested in them. The buzz in this sector of the startup field is all about the new middlemen – er middlepersons – that essentially broker a market of goods or services. Sometimes the brokerage element is disruptive to a traditional industry model. Think Uber. Uber does far more than connect drivers and...
Unexpected challenges to new business owners
A recent article on CBS News highlighted 5 challenges new business owners may face without necessarily anticipating them: Our experience confirms these challenges, but also suggests a few more to consider: Basic regulatory compliance: The local, state, and federal administrative compliance burden is more significant than most new business owners imagine, even if a business doesn’t operate in an industry considered ‘highly regulated’. The challenge is really about finding out what all must be done, because the three levels of government overlap in some respects but not others, and...
Under Armour flexes muscle
The relatively young sportwear brand Under Armour has made a name for itself as an aggressive defender of its brand. Most recently it has engaged a basically non-existent ‘threat’ called Armor & Glory. It claims the company’s shirts are confusingly similar because of ‘armor’. The company’s name and artistic focus are based on biblical passages, and aside form the word armor, does not appear to position itself as a high-performance competitor to the giant. Consistent defense of a brand mark is important to maintaining exclusive ownership. On the other hand, going...
The tip of the (drone) blade; exploring commercial deployment of UAV’s
Drones are exploding into everyday life at an accelerating pace. Just a few years ago the idea of mass adoption at the consumer level seemed a bit science fictiony (I just made that a word if it wasn’t), but hardly a week goes by now without drones hitting the news feed. Most drone news touches on other areas of law like personal injury, privacy, trespass, which are all very interesting in this nascent era of drones. That said, early adopters of UAV technology should also appreciate the implications of...
A Tale of Two City Parks
Cincinnati’s park system is at a crossroads of sorts, caught on the horns of two very appealing arguments. The parks appear destined for an up or down vote on a structural change to how they are funded and what those funds are used for. The ballot measure language – a Charter amendment no less – is already crafted and drafted. Proponents of change have put forward the ballot initiative. Mayor Cranley and a strong consortium of civic leaders have energetically proposed a tax levy to permanently support increased Cincinnati parks funding....