Answering A Question On Denotations

During a discussion the other day I was asked by an audience member new to my work the following: “What’s with the use of all the ™ markings in your articles?”

It’s a fair question and I’ve answered it many times over the years but since there’s been an explosion in readership over the last few months (Yes, there really has been. And as always a heartfelt thank you too all, and yes, even the detractors!) I wanted to touch on it for those who may be new to my work. So here’s the reason…

When I first began expressing my thoughts about business after retiring from the corporate scene circa 2009 I was typing one of my first articles and I needed to use the name of a business as the example. I am, have always been, and will remain not only a staunch advocate for copyright or trademark respect, I abide by it to a near fault. (Just as an example: I won’t knowingly listen, read, or watch anything pirated knowingly, although it seems to be getting harder by the day to even notice or tell these things and may do so unintentionally in today’s internet. But I at least try, and I digress.)

As I was typing I remembered back to when I started my first business. When you named a business back then (according to the kids – when dinosaurs roamed the Earth) you named your company, then you would apply the denotation ” ™ ” following it.

This did two things. One: It demonstrated that you were (or at least implied) a legitimate business entity. And second: You were stating publicly (an important distinction in business law) that you were claiming that title as yours, meaning, no one else could use it. i.e., Usually valid only at the state level after filing your papers. If you wanted national rights you needed to take further steps, and far more expensive steps at that. But that’s the gist. Personal names like Any Body M.D., or Any Body C.P.A. et al doesn’t apply because you can’t trademark or copyright personal names even if they’re a sole business entity.

Choosing one’s business name has much in common with the likes of trying to come up with a band name. It’s a very personal (even if its via a group) and sometimes mind-numbing process to come up with just the one where you say, “This is it!” And from that moment on you want to make sure no one uses it other than how you see fit. There are, in many cases, where you’ll go through legal hell and expenses to protect it should the need arise. After all, a business is much like having a child – it’s your baby. And many of you will give your own life to keep it safe. That’s not hyperbole, think about it.

So, with the above for context I believed (and still do) since I was actually instructing people about business and more that I would give business entities that I knew to be such their respect and use the ” ™ ” annotation whenever I used their name. As far as other notations such as the ” ® ” I decided also to use that when I knew it to be applicable. e.g., iPhone®

I’m not perfect, and there are far more I’ve probably missed than applied – but I try because I believe it not only to be important, but also correct. I am quite aware basically nobody else does it, and in most cases isn’t required. But that’s just me. I feel if you’re going to be discussing business subjects you should denote businesses with the applicable mark that demonstrates they are, in fact, a business entity. The ” ™ ” does just that. If I use the business name more than once in an article or writing I just make sure (or at least try) to make sure the first use of it has the notation, after that I believe it’s self-evident.

Now let me take this discussion in a different direction far too many who consider themselves “business minded” don’t give the first thought until it’s far too late: The legal.

Everyone wants “protection” via the legal means when they believe their business has been infringed by something they deem as wrong. Doesn’t mean they have a legal case, but what they will do is sue first – ask questions later. And there are more lawyers willing to throw legalese filled trite against the proverbial walls-of-justice, at billable hourly rates, regardless if it sticks or not, because one thing is certain – someone is going to be stuck with the bill.

In many cases both parties will incur some form of bill, even if there’s no – there, there. The business legal system in many cases has become nothing more than lottery-ticket-justice. Someone only needs to pull a “ticket” to open a docket – the lawyers will do all the “scratching.” At a billable hourly rate of course.

I say this for this reason: Most have no understanding (and some are indifferent to even the pretense) of what, how, and will need to demonstrate their side of any story to a court should the need arise. And the one thing which is more important than most others has two sides. First: Intent. And second: Demonstrable prior actions to prove of, or shelter from, blame.

To demonstrate this at an easily understood level I use what I call. “The dog in court” scenario. It goes something like this…

When I ask people in the audience how many people own a dog the hands go up in abundance. Then I ask this question:

“Precisely how many of you know, and I don’t mean think, but actually have a working understanding of what you will need to demonstrate, along with provide, a court should your dog for whatever the reason bite, nip, or even knock over a child where the child is either injured, or even presumed was injured, in any way, and the parent sues? This goes from a a dog as small as a toy to one the size of a pony. Please raise your hands.”

The response is usually one – to none. And once I press further as in asking if they would mind sharing, about one or two sentences in they demonstrate they really don’t truly know – they just “think” they did. And that’s the problem.

Think about this very carefully for it will hopefully open a train of thought which you may have never considered possible, let alone probable:

Your “dog” might be the most perfectly mannered pet in the history of pets. However: If your pet harms in any way, shape, manner, or form, even if it’s presumed by all common sense standards that it was clearly, and entirely the other parties fault? That may be meaningful in the court of public opinion, but in a court of law? It could be meaningless.

The court is predicated via laws and prior rulings and judgments. What you “think” should be, might not be, as “the law” see it. Case in point:

A child sticks his finger through a fence and gets it bit by the dog inside. The fence is clearly defined, and you have postings up everywhere “Beware of dog”, “Dog Bites keep hands clear” and more. And the once unthinkable happens: a child sticks his finger in the fence when suddenly – there’s need for a Band Aid®.

The mother starts screaming, but you point to all the clear signage, fencing and more around your pet and state: It’s not the dogs fault it your yours! Besides, they only need a band-aid, it’s not like this is something serious.”

Au contraire, in actuality the “something serious” issue may be a very big one at that. e.g., your big serious problem. Here’s an example…

You may have to actually bring your pet into court or other facility, and demonstrate precisely what command you as an owner have control. You may have to put your pet through a rigorous appraisal of: sit, stay, et cetera, under the watchful eye of not only the court but also a trained expert witness that’s been hired to access your skills and command.

Have a dog (regardless of size or breed) that doesn’t “sit” or “stay” and more with reasonable demonstrable actions on command? You might be facing claims such as: “So you just let this uncontrollable beast wander around aimlessly in a pen exposed to the public at large without the slightest concern for children who obviously are too young to read let alone understand signage, and only want instinctively too pet what they believe in their childlike wonder “the doggie!” and you presumed nothing bad could ever happen? Are you telling this court something like this never even entered your mind as possible, let alone probable?!”

Are you starting to understand what I’m implying?

And if you own a dog did you just suddenly realize something you just might not have ever considered prior? Take this example and change it from pet to business or product and the change in storyline doesn’t change all that much. Again, don’t gloss over it, truly contemplate it, because if you do, you’ll be at the least one step ahead should the need arise to either protect yourself, or your business. Again, far too many never even contemplate it, then – it happens.

I have since the inception of my blog tried to always write or express my opinion from the start point of: If I ever had to defend myself against a frivolous, or even legitimate claim of infringement that I could (or at least honestly try) demonstrate via prior examples that I have tried to the best of my ability, and erred on the side of over cautiousness as opposed to any charges towards blatant disregard in any open court.

Not saying I’m indemnified by any stretch, but what I am saying is – I’ve given it great thought, understand the reasoning behind what may, or may not, be claimed of me. And, have a retrievable record to back up those claims. i.e., I have a starting point to base my arguments, or defense. Most haven’t even a clue which is why I make these points. For if you are as many say “In business?” Much like tax law: ignorance of the law – is not a defense from the law.

But this has also had another effect which, at first, I never thought of yet showed itself in ways I never dreamed would ever apply…

When I began writing (circa 2009) my visitor totals for the longest time averaged about 10 a month. I actually think it was my mother visiting ten times but let’s just use that for the example. (and if you’re reading now – “Thanks Ma!”) And like most I used Google Alerts™ to see if, or where, my work may be referenced. As I’ve commented and wrote many times prior this was a complete waste of time for my name rarely (and us even rarer today and I’m all over he place!) came up in any “alert.”

Then one day a reader emailed me and asked, “I just read this story on X site supposedly written by someone-else, all of which was behind a “members only wall. and I’m curious – are you writing under an alias or pseudonym on other sites?” Then they listed the site and name, and so I went.

Sure enough when I visited after gaining access there was much of my work, in its entirety, with someone-elses by-line attached.

I immediately notified and had my legal arm reach out sending the requisite cease-and-desist order of which was complied with, and apologies abounded.

One was (paraphrasing): “Our software defaults to the posters name, it’s the responsibility of that poster to make sure. But hey, you should be proud someone’s posting your ideas, maybe you want to join and post here yourself, after all, our traffic is, blah, blah, blah…” I could feel the sleaze through my monitors and just filed the response while holding up one digit.

I didn’t need, nor want to pursue anything, any further. But here’s the key take away: I knew precisely what to do, who to call, what needed to be sent, what needed to be followed up should the need arise, what other proof I would need, and so on. I knew and had considered this ahead of time.

There have been other such incidents over the years like when I had someone claim infringement against me for some frivolous violation on YouTube™. I wrote about the experience (you can read here, here) and was one of the main reasons why I shunned all these types of varying platforms, especially social media.

But here’s the main point or take away: When the “charges” came I knew not only what to respond to, but more importantly – why and how. Remember, if you’re in the content business, or idea business, or any type of so-called business – you’re in business which by default requires you to know about not just the rules, but the applicable laws in some form of coherent manner should the need arise.

But last, and certainly not least and germane too all of this was how that reader identified that maybe someone was not only plagiarizing me, but actually stealing my entire work as their own and taking credit for it. How you ask? Well, I’ll paraphrase it the best I can from memory and it goes something like this…

“As I was reading it I said to myself this sounds awfully familiar. Then, as I read further, was when I knew precisely where. The moment I seen the ” ™ ” symbols everywhere I knew without a doubt this had to be you!”

That’s all I needed to know – and now you know too.

© 2017 Mark St.Cyr