Category: Legal

{Part 1} Dig A Business Foundation: Your Website

{Part 1} Dig a Business Foundation: Your Website (disclaimers, privacy policies, terms & conditions, affiliate links) on Oh My! Handmade

Also in this series:  {Part 2: Contracts} | {Part 3: Structure | {Part 4:} Intellectual Property

I bet you, like me, start off the New Year with huge dreams for what the year will hold. I like to pick a theme for the year. In 2015 I’m working on cultivating a strong community, both online and offline. So when I sat down and created my 2015 business plan, I made sure that the goals and activities I selected reinforced this theme. While our 2015 goals are likely different, to accomplish these goals we both must have a solid business foundation in place.

Digging in and working on your business’ foundation, I’ll admit, isn’t very fun. I know that when I wear this hat I often have to give myself a little tough love and a kick in the pants. This is because working on the foundation of our businesses doesn’t fit in a 140-character tweet or a pretty Instagram picture. It requires us to admit to ourselves what our vision is, create a plan, and then execute it. And often this plan requires lots of not-so-fun, not-so-creative tasks.

Because of this, the foundations of our business often get ignored. We focus on attracting social media followers, getting our products in publications, and guest posting – the shiny things that are fun to share with friends and that give us an upswing on the roller coaster of running a creative business. And things like drafting terms of service, having a solid client contract, or registering our copyrights fall to the bottom of the to-do list and off the radar.

But what happens when you get your big break? If the foundation of your business isn’t set up to support it, then you’ll have to scramble to get things in place.

If you are anything like me, you don’t make your best decisions when you are reacting. I am definitely on the side of the fence that thinks best when I have time to thoughtfully work through and weigh all my options. I do my best work when I’m being proactive and setting up solutions for possibilities, hoping that some of these possibilities never come to pass. There’s been more than one instance where I’ve created a solution on the fly that wasn’t right for my business and so I’ve had to go back and totally repeat a project, costing me not only time, but money.

I also know that selecting and prioritizing which aspects of your business foundation to work on can be overwhelming. To help you out, this month we are going to work on shoring up four areas of your business foundation: website, contracts, business structure, and intellectual property. As we move through each area, we’ll discover what gaps exist between where your foundation currently is and where you’d like it to be. Each area will have a short exercise to help you identify and prioritize the most important tasks you can take this year to reinforce the foundation of your business.

So take out your calendar right now and block off four 20-minute blocks this month to work through each of the exercises. Because when Martha Stewart, Oprah, or Ellen calls and your big break is on the horizon I want you to be thanking your lucky stars, not scrambling to get things in place to support the influx of new fans to you and your work. Let’s dive right into looking at the foundations of your website.

Your Website

Our websites are often the first interaction clients and customers have with our brand. I know only too well how easy it is to get caught up in selecting the right template, font, and color palette for your website. Don’t get me wrong, these shiny parts of our website do matter and will impact if your ideal clients and customers stick around. But your website’s foundation is built on some not-so-fun, not-so-creative parts: disclaimers, privacy policies, terms of service, and affiliate links.

These foundational aspects of your website will help protect your butt if, or when, one of your clients/customers goes crazy on you. Not to mention that some of these are legal requirements and not having them can land you in hot water. Click here or the graphic below to download your website foundations checklist.

{Part 1} Dig a Business Foundation: Your Website (disclaimers, privacy policies, terms & conditions, affiliate links) on Oh My! Handmade


We encounter disclaimers on a daily basis. Disclaimers are created when there is a risk of something bad happening, but we can’t be sure if that outcome will happen this time.

For example, you enter a parking lot and there’s a disclaimer when you enter (or on your ticket) that says the garage is not responsible if your car gets stolen or broken into when it’s parked in their garage. The garage knows that occasionally this will happen, even though they have cameras and staff on site, but they don’t know exactly when it will happen. So they tell you that you have to park at your own risk.

Do you do any of the following on your website?

  1. Give advice
  2. Make promises or guarantees
  3. Sell products that could cause an allergic reaction
  4. Sell products that vary piece to piece
  5. Allow users to generate content

Then you can (and should) have a disclaimer. For example on my site, I tell visitors that my site is an educational resource; not a replacement for working one-on-one with a lawyer. If you include health and nutrition tips on your website, you might want to disclaim that you aren’t a licensed medical professional. If you provide small business or social media advice you might want to tell them that you can’t guarantee that they will get the same results.

Privacy Policy

As was pointed out in an earlier OMHG post if your website attracts visitors from California, it’s a legal requirement to have a privacy policy. The goal of a privacy policy is to make it transparent to visitors what information you are gathering on them and what you do with it. While these rules can seem complicated, if you keep in mind that they are all about making it clear to me, a visitor to your website, what you know about me and my Internet surfing habits, then the rules start to make a little more sense.

When you are developing your privacy policy tell visitors the answers to the following questions:

  1. What kind of information are you collecting on them and how?
  2. Who is collecting this information?
  3. How are you using this information?
  4. How do you protect sensitive identifiable information?
  5. Do you share this information with others? If so, who, what, and how?
  6. How can a visitor find out what information you have on her? Who does she contact? How long will it take you to provide it to her? Does she have to pay a research fee?
  7. When was this privacy policy last updated?
  8. What is the process for updating the privacy policy?

When answering these questions you should not only consider user-generated information (e.g. sales pages, contact forms, or comments) but information that is automatically collected (e.g. Google Analytics, MailChimp, or Shopify). Also don’t forget to keep in mind third parties you share this information with (e.g. do you give it in the aggregate to sponsors, affiliates, or partners).

Terms of Service

I like to think of contracts as outlining the boundaries of your relationship. And terms of service is just a fancy word for the contract between you and your website visitors.

When developing your terms of service tell visitors the rules around each of these topics:

  1. E-commerce rules: Explain to visitors your policies around: payment, shipping, refunds, and exchanges.
  2. Comment rules: Explain to visitors your policies surrounding comments. Are promotional comments allowed? Are comments moderated? What happens if I break the rules?
  3. Intellectual property rules: Explain to visitors how they can use the content on your site (this is extra important for those of you that do DIYs and tutorials on your site) and the process to contact you if they think your site infringes on their content.
  4. Rules about change: Explain to visitors the process for changing the terms of service.

Affiliate Links

If part of your business model is creating content based on sponsors or if you are part of an affiliate program, then you need to make it clear to visitors that you are getting a kickback in exchange for your review, comments, or link.

Again, the rules around this are pretty common sense when you think about them from the consumer’s standpoint. I should know if you are writing about this awesome blender because you got it for free or if you use it everyday in your own kitchen.

There are four elements to properly disclosing your affiliate/sponsor relationships:

  1. Placement: You can’t hide the disclosure in the footer. It must be conspicuous and obvious to website visitors.
  2. Action: Visitors can’t be required to take extra steps to read the disclosure (e.g. no click-through links).
  3. Clear: Visitors must be able to easily understand that you are getting compensation in exchange for placement on your website.
  4. Timing: You can’t just tell visitors once; the disclosure must be tied to every post, social media interaction, link, or comment related to that product or service you are pimping.

(I like to remember these as the PACT I’m making with my visitors.)

Print out the worksheet and open up your website. As you work through the worksheet pretend you are visiting your site for the first time. Can you find (and understand) each of items? If there are gaps between where your site is and where you’d like it to be, take out your calendar and block off time to give these items a face-lift.

Congrats! You’ve now reinforced the foundation of your business by getting your website legit.

I’d love to know in the comments below the area of your site that you are going to tackle next. Or if you are all squared away, let us know so we can give you a high five.

Kiffanie Stahle | The artist’s JD

artistsjd_2001Kiffanie Stahle is a lawyer, photographer, and small business owner. In April 2014, she created the artist’s JD, a place where creative business owners can get the tools and resources they need to tackle the legal aspects of their businesses. Kiffanie believes that the law doesn’t have to be scary or hard to understand. And she knows this to be true because she’s been practicing law since 2011. When Kiffanie is not creating art or running her business, you might find her concocting something in the kitchen, soaking up the sun, or plotting her next adventure.


This is part 1 of a 4 part series publishing every Thursday in January to help you dig a solid foundation for your business in 2015! Mark your calendars for a special Q & A #OMHG chat with Kiffanie on Twitter, January 29th from 1-2pm EST. 

Also in this series:  {Part 2: Contracts} | {Part 3: Structure | {Part 4:} Intellectual Property

Trademark Registration: What Happens When You Skip It

the perils of skipping trademark registration Have you considered going through the trademark registration process? I run a web design studio, Aeolidia, and we just last week had a client get all the way to launching her new site when she discovered that a business in her field was using a name so similar to hers that she didn’t feel comfortable going ahead, and we’re now redesigning for her. I know that this is the kind of thing that seems like it couldn’t happen to you, so I wanted to share two stories from small business owners, so you can see how real this is. Sometimes when you start small, you feel like what you do won’t ever matter on the grand scale, but if you have any hopes and dreams for your business, you should start it off on solid footing.

Being One of Many

The first time we really had to re-do everything from scratch was last spring. Our client had a business selling children’s toys and decor, and she’d chosen a name that was not too unusual. Let’s call her Jane and let’s say her original business name was Little Leaf. It was definitely a cute name for a kids’ shop, and she did search online to see if anyone had a website with that name. It looked safe to use, but then she went to her first trade show, and says:

“Turns out there were lots of stores with our name even if they didn’t have a website. At our first trade show, we were one of 5 that had similar names. I still have people shipping my goods to a store in Chicago, even though we changed our name over a year ago and launched with the new name. First impressions are important, even just logistically.”

We had already made good progress on Jane’s Little Leaf logo, and we were using some natural budding and sprouting graphics in it. She decided to start over after the trade show, and we worked to brainstorm a new business name for her. The new name is unique, memorable, and no one else is using it, thank goodness! However, the name itself was so different from Little Leaf that it didn’t make sense to try to modify the logo design – it deserved its own design. Jane is very happy with what she has now, and her identity is much stronger with the new name, but it’s a shame she had all the extra trouble and expense at the beginning of building her business.

 Too Close For Comfort

Almost a year later, a second client had a similar problem, and sadly we had made it all the way through branding her business and creating her website. Let’s call this client Emily, and call her bakery My Muffin Top. We launched her new website last month and she emailed me a week or two after the launch, saying:

“It feels a bit surreal to be writing you about this just after went live. Tonight, as I was reading over the information on the SEO plugin and looking around on Google, an online search found the website Back when I was brainstorming business names, I did the requisite Google searches, and they didn’t turn up this website or anything else that seemed to be similar. From my research, it looks like Muffin Top Bakery launched shortly after I registered my domain. Unfortunately, my later web searches didn’t turn up the site, either.”

The two businesses had different business models, but the target audience was the same, and the names were way too close for comfort. Emily found out that some of her Twitter followers also followed this other business, and there wasn’t really a way to coexist peacefully using such similar names. It wasn’t anyone’s fault, and it made sense for Emily to change her name before any problems arose.

“I did read your blog post about trademarking shortly after I began working with you and the rest of the team, and my father, who’s an accountant, had mentioned that I should do that, but I’m sorry to say that it fell to the bottom of my list of priorities. I also did a trademark search on fairly recently, but didn’t find anything. I’ve been feeling so awful about this. It’s certainly better that this happened now rather than later, but it definitely wasn’t something I wanted to deal with. At least I know you and the rest of the folks at Aeolidia can help!”

The Risks of Ignoring Trademark Registration

Luckily, neither of our clients got far along enough with their business name to receive a dreaded Cease & Desist letter from another shop’s attorney, but that is something that can happen. The alarming thing here is that you can do a web search, feel like you’re in the clear, and then discover businesses that either don’t have a website, or were working on a website at the time that you started your business. Even if you consider yourself a “local business,” if you advertise online, you need to be sure that your name doesn’t conflict with existing businesses in the same niche. Trademark law is used in any situation where customers could be confused about which is the “real” Baby Bee. This means that a Baby Bee daycare and a Baby Bee bakery, even if both in the same city, would usually not have a complaint with each other. However, a Baby Bees clothing shop in Michigan could challenge a Baby Bee clothes and toy store in California if they felt they were losing customers due to confusion about the website URL or anything else.

Changes We’ve Made

One of our clients went through the process of having her business name trademarked by an attorney. The process was painless, and she mentioned to her attorney, Ben Pollock, that he might want to see if our other clients would have a need for the service. When Ben of The Juniper Law Firm got in touch with me, I recognized him from some very helpful legal articles that he’d written for Design*Sponge’s Biz Ladies series, and it was great that we could offer this service from someone so familiar with creative small businesses. Now, it is such a relief to be asking all of our clients up front if they’ve trademarked their business name and be able to offer them the research that determines if their name is safe to use, and then the trademarking service that will protect them if anyone new decides to use it. We have been fitting the two day research process in before we begin logo design work, and we can all feel more confident that the name and logo will stand the test of time.

What Should You Do?

If your business has a name that hasn’t been trademarked, please get in touch with a trademark attorney! If you don’t have one in mind (and your business is based in the US), email me, and I can let you know how trademark research and registration with Juniper Law works, and suggest a plan of action with pricing to you. I have a mental block about finding these types of services for my own business – it just seems so hard to find someone trustworthy and affordable, and leaves me wondering how much work (and paperwork) will be needed from me along the way. What a relief to just tell Ben a few details about my business, then get to forget about it while his team do all the work and all the paperwork, then report back to me with their results and recommendations. Since this is such a huge relief and decrease in hassle, I wanted to reach out and offer this service as a standalone (no need to sign up for any design work from us). We aren’t marking up Ben’s usual pricing (though he is paying us for our project management time, the price is all the same to you), and it’s very reasonable – less than other online services offering the same thing. Trademark services begin at $159, plus the standard $325 government filing fee. Research begins at $139, and you can add an Attorney Analysis & Opinion letter for $349, which includes the attorney’s opinion on the likelihood of a successful application and the likely strength of your trademark in the marketplace.

Check This One Off Your To-Do List

Email me today to get the full list of services and zip right through this simple and speedy process.

Do you have experience with either trademarking a business name or wishing you had? Share your stories of business names & trademarks in the comments!