Secure Your Business Domain Name Early

Your domain name is your business’s address on the internet, so it’s crucial to claim it before someone else does. Whenever possible, register a domain that matches your business name exactly (for example, YourBusinessName.com). Once you obtain rights in a domain name, no one else can use it, making it one of the easiest ways to protect your online presence. Be sure to claim domain names tied to your business name, key brands, and trademarks early – ideally, as soon as you settle on a business name and/or brand name – to avoid having cyber-squatters claim your preferred domain name(s). 

Protect Your Brand with Trademark Registrations

A trademark registration is a legal tool that protects your trademarks – for example, words, slogans, and logos – that you market and sell your goods or services under. Federally registering your marks allows you to prevent anyone else in the country from using them to market or sell similar goods or services. They are a powerful tool and provide cost-efficient protection. 

Use Clear Terms of Service to Protect Your Content

Your website’s Terms of Service (TOS) is not just fine print, it’s a valuable tool for protecting your original content and setting the rules for site visitors. In your TOS (sometimes called Terms of Use or Terms & Conditions), include language that explicitly states your business owns all the content published on the site (text, images, videos, etc.) and that you reserve all rights to that material. By clearly declaring your ownership, you put visitors on notice that things like your blog posts, product descriptions, and photos belong to your business and are not free for others to copy or republish.  Having a well-drafted TOS offers additional benefits as well. It can limit your liability, set guidelines for user behavior, and generally establish a professional tone for your website.  

Protecting your small business’s online presence from copycats might sound daunting, but it really comes down to a few proactive steps. By taking action early, you can prevent confusion among customers and save yourself the headaches associated with dealing with imitators later on. In the end, defending your online presence allows you to focus on what matters most: running and growing your business with confidence.

To seek counsel from our Intellectual Property practice group, please reach out to request a consultation or call us at 216-696-1422.

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In celebration of National Small Business Month, we proudly recognize the contributions of small businesses in our community. McCarthy Lebit is committed to supporting entrepreneurs and business owners with trusted legal guidance through every stage of their journey, from formation to growth and beyond. As a law firm deeply connected to the small business community, we’re proud to serve as trusted advisors and advocates for business owners throughout the region.

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NCAA Policy

Effective July 1, 2021, the NCAA implemented an interim policy that allows student-athletes to profit off their NIL. Student-athletes engaging in NIL endorsements or sponsorships will no longer lose their eligibility. However, much is left up to state NIL laws and as of yet there is no federal NIL legislation, though there has been a significant push for this with many University coaches and administrators, student-athletes, and the NCAA President speaking to Congress on the issue. In the absence of a federal law governing NIL, states and individual institutions will be left to deal with matters of compliance and enforcement of state and institutional rules and regulations.

In addition to schools being responsible for reporting potential violations of the NCAA interim policy or other NCAA rules, there are some important provisions in the interim policy for student-athletes to be aware of:

• Any NIL compensation must be for work actually performed
• NIL compensation cannot be contingent on enrollment at a particular school
• While performance may enhance NIL value, NIL compensation cannot be contingent on specific performance or achievement (e.g. points earned, etc.)
• NIL compensation cannot be in violation or contradiction of state or institutional policies

Ohio’s NIL Laws

On June 16, 2021, the Ohio Senate unanimously voted in favor of Senate Bill-187. The bill was brought to the House of Representatives on June 24, 2021 and passed. The bill entered into law July 1, the same date as seven other states’ NIL bills. With only 12 states left with no proposed or passed NIL legislation and Ohio having a large number of NCAA schools and student-athletes, it makes sense that Ohio was one of the many states addressing this issue right away and a means of staying competitive in the collegiate sports environment.

In addition to permitting student-athletes to engage in NIL deals without affecting their eligibility to play or receive scholarships, Ohio NIL law has some important provisions that place obligations on both student-athletes and schools:

• Student-athletes may engage professional representation regarding NIL opportunities
• Student-athletes must disclose proposed NIL contracts to the institution for review and, in the event of a conflict, the institution must communicate the conflict to the student-athlete so as to allow the student-athlete an opportunity to renegotiate the proposed contract
• Institutions are permitted to establish reasonable policies or standards to address a student-athlete’s failure to disclose a proposed NIL contract
• Institutions (as well as athletic associations, conferences, groups or organizations with authority over intercollegiate athletics) may prohibit a student-athlete from entering into an NIL contract if the contract is associated with controlled substances, adult entertainment, casinos, or entities that sponsor or promote “gambling activities”
• Student-athletes cannot enter into contracts that require them to display a product, or advertise for a sponsor, during official team activities or certain other times, if that requirement conflicts with a provision of a contract to which the institution is a party
• Institutions are not obligated to “identify, create, facilitate, negotiate, or otherwise enable” NIL opportunities for student-athletes
• Student-athletes are not afforded any right to use an institution’s name, trademarks, service marks, logos, symbols or “any other intellectual property regardless of whether the intellectual property is registered with the appropriate authority”

Many schools have implemented educational resources for student-athletes to ensure they’re operating within the law and in some cases even providing one-on-one training in brand building.

FTC Endorsement Guides

In addition to the NCAA policy and state laws, the Federal Trade Commission (FTC) has guides for the use of endorsements and testimonials in advertising meant to provide guidance on the use of endorsements and testimonials, and to prevent deceptive and misleading advertisements and set forth the general principles that the FTC uses in evaluating whether practices fall within the scope of conduct declared unlawful by Section 5 of the Federal Trade Commission Act.

A student-athlete’s endorsement of a product or service must reflect his or her honest opinions, findings, beliefs, or experiences. Further, if an ad represents that the student-athlete uses the endorsed product, they must in fact be a bona fide user at the time of the endorsement. Student-athletes must also disclose material connections between themselves and their endorsers (i.e. an employment, personal, family, or financial relationship between the student-athlete and the business). Additionally, the FTC does not limit financial relationships to money, it can also include free or discounted products or perks.

Intellectual Property

Student-athletes are now able to begin building their brand. While, as mentioned above, they are not necessarily afforded any rights in IP owned by their university, they can certainly create and use their own to facilitate brand recognition. One way to do so would be through federal trademarks with the United States Patent and Trademark Office. Not only will trademarks allow student-athletes to capitalize on their NIL, they provide protection against imitations and counterfeits. Indeed, many student-athletes have been proactive in doing so, like Graham Mertz, the quarterback at the University of Wisconsin-Madison, who submitted a trademark application for his own personal logo incorporating his initials.

Additionally, colleges and universities are permitted to grant permission to student-athletes to use university-owned trademarks and have entered into licensing agreements with their current and former student-athletes to allow the use of their trademarks. These licensing agreements also provide a means for these institutions to restrict the use of their trademarks to endorsements that align with their values. When entering into a license for trademarks owned by another, student-athletes (and the businesses who are engaging them) need to have a clear understanding of the scope of use permitted under these license agreements.

Conclusion

Whether it is through entering into NIL agreements, creating and protecting their brand, or licensing the marks of their university, as student-athletes and their advisors begin to explore these new NIL opportunities, it is imperative to navigate carefully within this changing legal landscape.

For more information or assistance, please reach out to request a consultation, give us a call at 216-696-1422.

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The EU’s GDPR replaces the Data Protection Directive 95/46/EC and was designed to harmonize data privacy laws across Europe, to strengthen individual data and privacy protection for individuals residing within the EU. It sets regulations for how data is treated.

How does this affect businesses outside the EU?

Does your business have a commercial website or mobile app? If so, you are likely collecting data from people worldwide. The GDRP expands the jurisdiction of the law to impact businesses based outside the EU by applying to all companies processing and holding the personal data of people residing in the EU, regardless of the company’s location. This means the GDPR could apply to any organization anywhere in the world, and all organizations should perform an analysis to determine whether or not they are processing the personal data of EU citizens. The GDPR also applies across all industries and sectors.  Due to the broad scope, this may include your business.

What is “personal data” under GDPR?

Personal data is any information relating to an identified or identifiable individual which means information that could be used, on its own or in conjunction with other data, to identify an individual. Again, this is an incredibly broad scope. Personal data would include not only the data that most understand to be personal, such as social security numbers, names, physical addresses, email addresses, but information like IP addresses, behavioral data, location data, biometric data, financial information, and more. Furthermore, even personal data that has been “pseudonymized” can be considered personal data if the pseudonym can be linked to any particular individual (pseudonymization is a method to substitute identifiable data with a reversible, consistent value).

Am I “processing” data under GDPR?

According to the GDPR, processing data is “any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.” Basically, any activity involved in collecting, managing, using or storing the data will fall under the umbrella.

Do I need to comply?

Generally speaking, if you are an organization that is organized in the EU or one that is processing the personal data of EU citizens, the GDPR will apply to you. Even if all that you are doing is collecting or storing email addresses, if those email addresses belong to EU citizens, the GDPR likely applies to you. You should consult with legal counsel regarding the full scope of your compliance obligations.

Additionally, even if you do not believe your business will be affected by the GDPR, the GDPR and its underlying principles may still be important to you. European law tends to set the trend for international privacy regulation, and increased privacy awareness now may give you a competitive advantage later. You should consult with an attorney to help you navigate the GDPR.

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