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Social Media Decoded
One DM Could Shut Down Your Brand: The Legal Mistakes Creators Don’t See Coming with Kailey Jacomet
00:21:35
This episode breaks down the hidden legal mistakes creators and online business owners make on social media—and how one DM, copyright issue, or trademark oversight could shut down your brand overnight. Trademark attorney Kailey Jacomet shares practical, preventative steps to protect your content, contracts, and business before problems arise.
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- [00:02]
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- [01:00]
Michelle Thames
So could one DM from a lawyer shut down your entire Instagram shop tomorrow? Hmm, I don't know. Well, today we're making sure that the answer to this question for you is a no. Welcome back to social Media Decoded the show that turns likes into leads and keeps you legally safe on today's episode. Okay. While you're doing it. So this is a little bit of a different type of episode, but I think it's definitely important. And today I'm talking, talking to my guest, Kaylee, founder of Brand Law Boutique. She's a trademark attorney and she is the go to expert who helps creators. Okay. Before the cease and desist even gets to your email or your mailbox, we don't want that. Right. So if you post, sell or collaborate online, you need this episode in your earbuds right now and that's why we are having this conversation. Welcome to the show, Kayleigh. How are you?
- [01:55]
Kayleigh Jacame
I. I'm well. Thank you so much for having me, Michelle.
- [01:58]
Michelle Thames
Yes, I'm really excited to chat about this. So can you let the people know, like who you are and what you do and who you help?
- [02:05]
Kayleigh Jacame
Yes, absolutely. So I'm Kayleigh Jacame. I'm a business attorney. I serve predominantly small businesses and a lot of online businesses. I'm an online business owner myself, so I understand the unique aspects of protecting your brand and your business in this online community. I have a trademark firm. I practice trade work and copyright law in Brand Law Boutique and then I also have a contract template shop called Contract Issa. So those are attorney drafted, niche specific, downloadable contract templates that are done for you, but aren't just the boilerplate, you know, good for anyone. This is really for the services you provide, for the policies you need for your business.
- [02:45]
Michelle Thames
Ooh, those contract templates sound like something that our audience definitely needs. I think that you all might need something like that. And so I'm glad that you are listening to this episode because we definitely have something special for you, because one thing that I do know is that we can't do this alone. Right. We need experts like you, Kaylee, to help us because we're not legal experts and we get into, you know, contracts with people. You may have a digital marketing agency. You may, you know, be working with a service provider and need a contract. And I love what you're doing because it's so needed to have templates like that. And so I am super excited about just being able to get my hands on something like that, because it's totally needed.
- [03:25]
Kayleigh Jacame
Yeah, absolutely. And you know, Michelle, as you began this episode, you mentioned, how do you avoid that situation to begin with, where your Instagram account or your Facebook, your Facebook community? You know, I know people who have communities that have been grown to like, 40,000 people that have just been shut down overnight. And how do you protect yourself against that? Obviously, from your perspective, from the marketer's perspective, have an email list. But when it comes to your brand, protecting your brand and protecting the brand awareness that you've built, it's really taking certain proactive steps. Anyone who's had any trouble with meta, with an account being reported or taken down knows how difficult it is to bring it back. And at that point, even if you're working with an attorney, it can be very difficult to bring it back because essentially you. You don't have a right to keep that account. Facebook, meta, this company, all the social media platforms, really, they're going to prioritize, protecting themselves and their own liability. And so if they think that you've done something wrong, they don't owe it to you to go through the process of restoring your account. But there are some really important steps that you can take to prevent yourself from getting in that situation or be able to easily remedy it right from the beginning.
- [04:40]
Michelle Thames
Oh, this is good. And I know a lot of people have questions about trademarks, and let's talk about that for a minute. Like, what's the very first trademark mistake that you see entrepreneurs making on social media? And how do we fix it before it gets expensive for us?
- [04:55]
Kayleigh Jacame
Yeah. So naming your business, whether it's your business name, your Brand name or a program or a tagline can kind of be like naming a child. You know, you think something comes to mind and we get really emotionally attached to that name. You know, all our hopes and dreams are bound up in this name. And, and most people will just then hit the ground running with that name before they do any research. And that's the number one mistake people make is just going with it without doing the research they need to do. So even those who do do some due diligence and do a couple Google searches or even use the government has a free tool, the USPTO has a free searchable database that you can do a quick search in there to see if your name is trademarked before you start using it. But trademark law does not just protect the identical name, it protects confusingly similar ones. And that's a huge mistake people make. They might come upon a name and think, oh, that's different enough because my name has one extra word or their name has one extra word, so they're not the same. But for purposes of trademark infringement, they might be considered the same, confusingly similar under the law. So where a regular person, and even I sometimes think people aren't going to be confused about those two names. But I know the nuance of how those decisions are made and how two seemingly different names actually could, one could be infringing on the other. And so that is the first area where people get into trouble is not doing any research or not doing extensive enough research. So when I do a trademark search, I have special software that I use that, that helps me cross reference synonyms, phonetically similar names, all of the names that could be a conflict with your name. So you know, before you launch, or even if you've already launched before you begin moving forward in scaling and growing your business, Yes, I can move forward with this name in confidence. I don't need to be afraid that next year someone's going to come out of the woodwork. Something's going to land in my inbox and tell me, guess what? Even though you made it to, you know, X number of followers, or all these people know you by this name, you have to rebrand now, understand?
- [07:07]
Michelle Thames
So what is the difference between these two?
- [07:11]
Kayleigh Jacame
So TM is you're giving notice to the world that you're claiming common law rights to that name. So common law rights are you haven't registered your trademark. You are just asserting, whether it's true or not, that you are the first to use that name in commerce. It's not that your mark is Registered, the R means you've actually gone through the process of registration and that's what gives you really tools in your legal toolbox. And you're presumed by the law to be the rights holder to that name. So in the United States, the first person to use a name in commerce is the superior rights holder to a name. However, the person who actually files first for the name has, has such a significant advantage that sometimes it doesn't matter that you were using it first. If someone beats you to registering it, the law is going to presume that they are the superior rights holder. And your battle against that person that beat you to registering the name is going to be significant. Instead of now just going through the registration process yourself, you may have to petition to cancel their registration, prove you were using it before it becomes a litigious situation, and it can cost tens of thousands of dollars and take a year or two or more to complete. And specifically when you're a small business owner, some people think oh, I'm just a small business so I don't need to worry about this. Actually, specifically when you're a small business owner, you have even more reason to go through that process because a larger business is going to be able to bully you through the extensive time and resources they have to to throw at this when you might not have the money to fight them. I have several open and past cases of like household names, big, big companies bullying my small business client. And it's really when you dot your I's and cross your t's and go through this registration process that you lock in rights that it's much more difficult for this big business to, to challenge you and push you around. And what even if it's small business to small business, the first person to register has such a significant advantage. So that's what the registration means. The TM doesn't necessarily have more significance other than you saying, hey, I'm claiming that I have rights to this name.
- [09:30]
Michelle Thames
Okay, that was a really good breakdown. I'm sure everyone listening now understands that process so much better. So let's talk about like when we doing a name search, can you give us a quick 60 second checklist for, for a name search before like someone thinks about buying a domain or something like that?
- [09:47]
Kayleigh Jacame
Sure. So what I would recommend is if you're doing it yourself, search on two different domains. So maybe you do Google and DuckDuckGo or something like that, two different search engines and search the name, then also get out a, you know, a pad of paper and a pencil and Your dictionary, your online dictionary, and write out synonyms for the words that you're using. Because even if it's not the exact name, if it has the same meaning, it could be a conflict. Here's an example that I've used for years, and I don't think that anyone has registered this. So if anyone wants to grab this business idea, I think it's still available. So let's say I have a successful coffee shop and now I'm going to be a coach for other coffee shop owners. So I call myself billionaire barista and I search the name. Nothing comes up. I think it's available. I go ahead and I launch it. And then I get a cease and desist letter down the line from billion dollar coffee maker. And they're doing the same thing. They're teaching or billion dollar coffee shop. They're teaching other coffee shop owners how to scale and franchise or whatever it is they're doing. So that didn't come up in my search because neither of those words were the same and the search engines are not quite advanced enough that they're pulling up all of those differences. So you actually want to get out your dictionary, search manually for those synonyms. Also, if there's one really unique word in your name and other less unique words, like maybe coach. Coach is not a unique word, but maybe you have another pretty distinct word in there, search that distinct word alone and just drop coach to see if anything comes up for the most distinct word. And then obviously, my recommendation to you would be to work with a trademark attorney who uses special software that automates a lot of this and can analyze all the results in their legal opinion. Because like I said, to a lay person it might seem available. Whereas I know from my experience on things that have been refused or have had issues that you may have trouble with this name in the future.
- [11:52]
Michelle Thames
Oh, those are some good tips. Those are some good tips. I hope you all are taking some notes because gems are being dropped here today on the social media decoded podcast. So reels, audios, memes. I know we see these a lot on social media, and most creators may feel like they're not doing anything wrong, but sometimes they could be like, copyright crossing the line without even realizing it. So what are some things that you see where most creators cross the copyright line without even realizing it?
- [12:20]
Kayleigh Jacame
Yeah, I would say so. First of all, there's the fair use exception. So when you are critiquing something, you know, you can share your screen and show a short clip of something or a news article or something that's otherwise protected by copyright. And if you are adding commentary or critiquing to it, that falls under the fair use doctrine. Now, clips of like, audio in the background do not necessarily so. And while you're the social media expert, on the technical side of things, if you are, you know, using. Using audio that's already available in, in the app that you know, you can select that you're good to go in that way. But if you are like, playing music in the background, that can be an issue and that could be automatically taken down. If it's being used as the background audio and you don't have rights to it or you don't have some kind of license, if you're just using the internal mechanisms on the social media platforms, you're usually okay with that. And that's one of those situations where if you do have a copyright violation, it might ding your account. And as many of you may know, after a couple things, you can get yourself into some issues, and we don't.
- [13:32]
Michelle Thames
Want to do anything like that. Okay, so let's say I Repost a viral TikTok on my business Instagram. What's the worst? Like, is that bad? Like, in the sense that you're saying, like. And, you know, I've had people who I know have like, done a live and had music playing in the background, and we're not even supposed to do that. Wow. So that's like one thing, right? But like, what's another? Another way that our Instagram could get flagged for, like, reposting content.
- [14:01]
Kayleigh Jacame
So definitely, if you. The, the creator of content owns that content and it's a. I mentioned the fair use exception. However, the problem with platforms like Meta or, you know, TikTok is there's their internal policies and then there's the law. So maybe if I were to look at something, I could tell you, when it comes to copyright infringement, this falls under the Fair Use exception. And actually, in my legal opinion, it's not copyright infringement. That doesn't mean that Meta or TikTok is going to agree with that evaluation. And in their own internal policies and discretion, they can take down whatever they think is copyright infringement. So certainly, as a copyright attorney, I'm very cautious and conservative when it comes to reposting things. But that is the, you know, the worst thing that can happen is that even if I might say that's a fair. That falls under fair use. That was your critiquing commenting on this viral video. I can't guarantee by any means that those platforms are going to agree with that assessment. And the worst thing that can happen is they can take down your account. So I guess the answer to that is, you know, the safer you want to be, the more easily you can avoid those problems. But there's not really, you know, an across the line, a red line that I can give you where you're going to be fine if you do this, but don't cross this line because it really is their own discretion. So the more careful you are, the more likely it is that you can avoid these problems.
- [15:38]
Michelle Thames
Yes, and so we're going to be careful. And I want to talk about collabs and contracts because there are influencers. You know, this is a whole new area and. Well, it's not new. I mean, I know being an influencer has been around a long time, but micro influencer deals are exploding and there are like non negotiable clauses that every creator should have in their contract and to look for. Like what are some things that we should be looking for when we are, you know, looking at contracts?
- [16:06]
Kayleigh Jacame
Yes, I think especially when you're a new influence influencer, you may be presented with a brand deal and that that brand provides you an agreement to sign and you might feel like, I just, I have to sign this or I'm not going to be able to collaborate with them. And remember that that's not true. Any agreement that you are sent, you can have that, you know, reviewed by a lawyer. You can make proposed revisions and send it back to them if I want to add in these clauses or you can also send them your own agreement. So that's, I, that's the ideal situation is that you would have your own agreement as an influencer to that you are presenting to brands. Because every contract, even if it's drafted to be fair and balanced for both parties, it's always going to tilt in favor of the drafting party, the person who drafted the contract. Some of the things that you really want to protect is how are they able to use your name? How exactly are they able to use your likeness? And that was beyond the scope. It was not relevant to the one product deal that you were going to have. Had you known that they were going to do that, you would have charged them more for this deal. You want to make sure that the scope is really limited, very limited. Protecting your intellectual property, making sure that they know exactly how they're able to use your name, photos of you, references to you and things like that are things that are really important to have in a contract. And a clause that says like if you get involved in a scandal, you know, they can remove you from everything. They can terminate the relationship because they don't want to be associated with you. They have some campaign that doesn't align with your values and your viewpoints. You want that same power to be able to distance yourself from this brand.
- [17:48]
Michelle Thames
Very true. Very true. So I'm so glad that we're having this conversation on this podcast because there are so many people listening that need this information. What is one template every listener who's listening should invest in today?
- [18:02]
Kayleigh Jacame
So I would say that's probably your website policies, because probably everybody listening, if they have a business has a website, you and on your website, you should have website terms of use and a privacy policy. These are really important things. Not just because there are certain clauses in there that are required by state, federal, and even international law, but also it makes you look more professional. You know, honestly, I would never expect. Do people actually go to the terms of use and the privacy policy on a website and actually read them? I mean, I typically don't. I might notice if people don't have them, but only if I have an issue or something like that am I going through. However, in our website policies, I have a video that walks you through what every clause means. And I've had multiple clients say, I've been able to use your video to field questions of clients, especially if you have any kind of online product that can be purchased. So if you have a template, a digital product or an online course, anything like that, all the more reason that you absolutely need policies about the purchase terms. Are they refundable, things like that? And even if you don't, even if you have a blog, you need those policies, like I said to. Sorry. To comply with state, federal, and international law. And that's just going to apply to anyone with a business. Now, if you're providing a service, you'll want a service agreement that is specifically for your niche. If you have an offering, like I said, like an online course, you want online course terms and conditions that are going to outline what they can and cannot do. They can't share the login, this is for one person only, et cetera, things like that.
- [19:45]
Michelle Thames
Oh, yeah, these are some good things that we absolutely need. And so thank you so much for sharing that with us today, because we need these contracts and we need these templates. You don't necessarily know what needs to be in that contract, but when you said that it falls in favor of the person creating the contract, that is so true. And most people just don't read contracts. They don't read, you know, and you're signing away your whole. You could be signed away your whole life to something. So I'm just again, really grateful that you have this contract template shop because people, small businesses, again, sometimes don't have the funds to hire. Right. And sometimes this falls to the wayside. But this needs to be like a conversation that continues to be had. And so I am glad that we're having this conversation here today because it is important. Okay, so this has been a really great episode. You dropped some gems and it has been a fruitful episode. You all that you can go back and listen to make sure that you subscribe to the podcast so that you never miss an episode. But before we head out, where can listeners find you because you are a trademark genius. Okay. They want to grab your contract kits and binge your legal tips on Instagram and all the things.
- [21:05]
Kayleigh Jacame
Yeah. Thank you so much, Michelle. So you can find me on Instagram at Kayleigh. And our contract template shop is contractista.com and and I'd love to offer your listeners 10% discount on any contractista template. So that code will be in the episode description. And then also we have a business legal planning workbook. So this is actually a compliment to the book that I read that I wrote a few years ago. And it helps go through all the steps that you need to do to protect your business legally and really breaks down what you need. There's spaces to answer questions to, to tailor down what you need for your specific business and services. So that also will be hopefully in the description below. Michelle. And yeah, and so then I would love to connect with anyone that has questions about trademarks or what contract template is right for them.
- [22:03]
Michelle Thames
Yes, now this has been a great episode. We'll definitely have all the information down below in the show notes. And if you learned something that could save you thousands today, make sure to screenshot this episode. Tag me on Instagram ichellellthames and share your biggest aha moment. And make sure to tag Kailey too at K A I L E Y J A C O M E T. Okay. And share your biggest takeaways from today until next time, we want you to post proudly. Sell smart and protect your brand at all costs. We will talk to you in the next one. Peace.
- [22:37]
Grainger Announcer
If you're the purchasing manager at a manufacturing plant, you know having a trusted partner makes all the difference. That's why hands down, you count on Grainger for auto reordering with on time restocks your team will have the cut resistant gloves they need at the start of their shift and you can end your day knowing they've got safety well in hand. Call 1-800-GRAINGER clickgrainger.com or just stop by Granger for the ones who get it done.
- [23:07]
Kayleigh Jacame
If you like the show, please take.
- [23:09]
Grainger Announcer
A moment to rate, review and subscribe. It really does help the show to grow.
- [23:14]
Kayleigh Jacame
Thank you for listening.