Wednesday, August 12, 2020

A Trip to the Bike Shop and Reflections on Entrepreneurship

For many businesses, the past few months have been disastrous. However, the bike industry has seen a surge in sales and has projections for continued growth. Avoidance of public transportation, gym closures, and extended periods of being at home are some of the drivers of the sales boom.
I experienced this firsthand on my trip to a local bike shop during the spring and have been watching the spike in sales play out for several months. Needing some minor parts and accessories, I called the store to make sure they were even open. To my surprise, an employee said they might not be able to get me in that day because there was an hour and a half to two-hour wait just to get in the store!

Shocked by what I heard, I made my trip another day and came prepared with a camping chair and a book for while I waited in line. Sure enough, when I pulled into the parking lot, people were lined up outside. As I sat in my chair, I reflected on what the shop had done to capitalize on this opportunity and how those steps were applicable to entrepreneurs in any industry. While these points are nothing new, it’s important for entrepreneurs to recognize that while the climate of the business world has drastically changed over the past few months, the keys to success have not.

Monday, August 3, 2020

What’s in a Name?

The NFL team formerly known as the “Washington Redskins” recently announced that it would play the 20
20 season as the “Washington Football Team.”

After years of defending the “Redskins” name against claims that the mark was racially insensitive, and vowing to “never” change the name, the team owner reversed his steadfast position after the death of George Floyd in late May, when FedEx threatened to cancel its remaining payment obligations under its stadium naming rights contract if a change was not made. 

Given the timing of the decision, it shouldn’t be surprising that the team wants more time to select a new name. A name change of any kind is a big deal, but even more so with a professional sports team.

Teams often want the name to reflect something about the city or state that they represent (Pittsburgh Steelers, Green Bay Packers, Minnesota Vikings), but may want to consider broader appeal if the name is to have value for a possible move or sale to another location (although that didn’t seem to prevent the New Orleans Jazz from becoming the Utah Jazz or the Minneapolis Lakers becoming the Los Angeles Lakers—even though Utah isn’t known for its jazz scene and there aren’t really any lakes in LA…). Fans appreciate a name that suggests strength or bravery (Pirates/Buccaneers, Lions, Bears), but want something unique that isn’t used by a half dozen high schools and colleges in every state (Eagles, Cardinals, Tigers, Wildcats). True fans of the team will remain loyal regardless of the name, but let’s face it, an interesting name and cool logo can’t hurt sponsorship revenue and merchandise sales. 

On the other hand, considering the lengthy controversy over the name, one would think that the team might have had something on the shelf. 

Pro-Football, Inc. is the owner of the Washington Football Team. Founded in 1932 as the Boston Braves, the team was renamed the Boston Redskins in 1933, probably to avoid using the same name as Boston’s professional baseball team. In 1967, the team was issued its first U.S. trademark registration for its name, and went on to obtain additional registrations during the 1970’s including one for its logo of a Native American warrior. In 1990, the team was issued a registration for THE REDSKINETTES used for its cheerleading squad (which had at least stopped wearing black-braided wigs nearly 20 years prior to this registration). These registrations were granted in spite of long-standing trademark law barring the federal registration of “disparaging,” “scandalous,” and “immoral” marks. 

However, only two years after registering THE REDSKINETTES, a new application to register WASHINGTON REDSKINS for clothing and other merchandise was refused by the USPTO on grounds that the mark was disparaging of Native Americans. The USPTO’s refusal was issued on the heels of a petition filed by a group of Native Americans challenging the team’s existing registrations on grounds of disparagement. While this matter dragged on, a second group of Native Americans filed a petition to cancel the team’s registrations in 2006, which was put on hold pending a final decision regarding the prior 1992 petition which was now dragging through the federal court system. Finally, in 2009, after losing on appeal, the petitioners/plaintiffs on the first action were declined review by the Supreme Court. 

In 2014, the Trademark Trial and Appeal Board (TTAB), acting on the second (2006) petition ordered the cancellation of the Pro Football, Inc.’s six existing registrations (the 1992 application for a seventh registration was suspended pending these court/administrative proceedings). The TTAB decision was upheld by the federal district court, but was on appeal when in 2017 the U.S. Supreme Court, in an unrelated case (Matal v. Tam, regarding registration of the mark THE SLANTS for a rock band), ruled that the “disparaging” clause violated free speech protected by the First Amendment and was therefore unconstitutional. With the Supreme Court ruling, the basis for the challenge to the Washington Redskins trademark registrations was gone, the registrations were reinstated, and the last application filed in 1992 was issued a registration in 2018.  

After more than 25 years of dispute, the team declared victory, but in an ironic twist, it was soon to find out that the mere right to register their marks would not make the public view the marks as any less disparaging. 

It is important to note that the Tam case, which determined disparaging marks were free speech and not to be denied trademark registration, did not address “scandalous” or “immoral” marks. That issue was addressed by the Supreme Court last year (Iancu v. Brunetti,, regarding registration of the mark FUCT – for “Friends U Can Trust” – for a clothing line). Not surprisingly, the Supreme Court followed its Tam decision and held that refusing registration of marks on grounds that they were scandalous or immoral would also violate First Amendment free speech. 
Out of curiosity, I did some non-scientific research in the USPTO records and could not discern any noticeable increase in applications for “disparaging” marks following the Tam decision, but there are more than a few recent applications that would clearly have once been considered “scandalous” or “immoral.” While it may be difficult to identify what may be disparaging, I thought a good start for scandalous marks would be George Carlin’s “Seven Words You Can Never Say on Television.”   All of these words can now be said on cable, and some are even reasonably common on network stations, but it is still surprising to see that they are being considered for brands.

If you think about doing your own research, I recommend you stick to the USPTO records. If you do a general browser search, you will plant cookies that attract ads you do not want to see.

Friday, July 24, 2020

Entrepreneurship in the Classroom

Earlier this month, a fellow entreVIEW author told us the tale of how his entrepreneurial-minded daughter recently launched a baking business. While I won’t fail to at least briefly acknowledge how much I love hearing about female-led startups (probably even more than I love baked goods!), this post is about why entrepreneurship should be taught in schools at an early age.

I don’t believe entrepreneurship is genetic or inborn. Instead, I believe an entrepreneurial nature can be fostered through imagination, creation and innovation. I, like Dan's daughter, am lucky to have grown up encircled in entrepreneurial sprit. I grew up on a farm and had no better friend and mentor than my Grandpa, a farmer. I followed him everywhere and learned a lot about what it takes to be an entrepreneur, including work ethic, risk management, the impact on reputation and business longevity of keeping a handshake promise and more. In a lot of ways, I view farmers to be the ultimate entrepreneurs. Not everyone is as lucky to be inherently surrounded by entrepreneurship from a young age, which brings me back to my original premise: entrepreneurship should be taught in schools at an early age.

Unless my memory fails me, I did not have a single class on entrepreneurship from elementary through high school. For those without an inherently entrepreneurial home life, school may be the only exposure a young student has to entrepreneurship, especially in rural areas. As with all other fundamental subjects taught in school — math, science, music, etc. — entrepreneurship as a school subject would encourage students to engage with the world around them and imagine what could be different, brainstorm creative problem-solving ideas and scale-up innovations.

Thursday, July 16, 2020

Privacy Shield No More

Under EU privacy law, personal data can only be transferred to countries with adequate data protection. When the General Data Protection Regulation (GDPR) went into effect, adequate countries included only Andorra, Argentina, Canada (for commercial organizations), the Faroe Islands, Guernsey, Israel, Isle of Man, Jersey, New Zealand, Switzerland, Uruguay, and Japan. For those in countries without adequacy decisions, recipients of personal information must ensure they are sufficiently protecting data in other ways. The U.S. is not deemed adequate. However, organizations were able to confront this issue by self-certifying under the EU-U.S. and Swiss-U.S. Privacy Shield frameworks designed by the European Commission, Swiss Administration, and the U.S. Department of Commerce. If an organization self-certified under the Privacy Shield and remained in compliance with its data protection requirements, then that organization would be deemed adequate to receive personal data from the EU and Switzerland. More than 5,000 U.S. organizations rely on the Privacy Shield to legitimize their international data transfers. 

Thursday, July 9, 2020

You Deserve a Break Today

Stepping away from work and going on vacation can be a struggle. With the weight of business on your shoulders, it is so easy to convince yourself that there just isn’t time for a break. After all, there are always more numbers to hit, business to obtain, and goals to achieve.

These reasons may even seem more important this year due to the impact of the global pandemic on your business. And — truthfully — there probably is not a perfect time to go on vacation. However, stepping away from work is not only beneficial for your mental and physical health, it is also important for the health of your business.

Thursday, July 2, 2020

A Global Pandemic — Why Not Launch a Business?

You can probably think of lots of reasons why not to launch a business during a global pandemic. If you’re my 13-year-old daughter, you see nothing but opportunity.

Why? Maybe because she’s the daughter of a lawyer who spends his days working with risk-taking entrepreneurs? Maybe because she’s easily bored? Maybe because she just has a lot of entrepreneurial drive (and a bunch of time on her hands)?

The real answer is that it’s because her New Year’s resolution was to turn her love of baking into a “neighborhood” business. Unlike many of us (remember those resolutions to stop snacking or to go to the gym more?), she actually took action: she put together a detailed list of everything needed to launch the business and started checking things off. Items included everything from branding and recipes to registering our kitchen under the Minnesota Cottage Foods Laws.

Of course, then things like life and COVID-19 got in the way! With time on her hands (8th grade distance learning only took her about 1.5 hours a day), she renewed her enthusiasm for the idea after we returned from our one-day trip to Ecuador (which was supposed to be a 10-day spring break trip to the Galapagos Islands…). 

But, like any good entrepreneur, she needed to be able to adapt to a rapidly evolving situation. Instead of trying to go door to door in the neighborhood, she contacted the New Brighton Farmer's Market and secured a bi-weekly space for the summer. About three weeks ago, she officially launched Zizzy Baked GoodZ and sales have been booming! She sold out her inventory her first week at the market (half way through the day) and almost sold out twice as many items the second week — including her “Rainbow Pride Cupcake” (complete with Fresh Pineapple Buttercream), pictured above. She’s even already filled several custom catering orders!

Thursday, June 25, 2020

Are You Ready for July 1 CCPA Enforcement?

If you are a privacy geek like me, you circled July 1, 2020, on your calendar the same way you circled May 25, 2018. (Actually, I put a note in my Microsoft Outlook calendar.)

On May 25, 2018, the General Data Protection Regulation (GDPR) went into effect with significant new data privacy rights and protections for EU residents. Since 2016 I had been sending out client alerts, writing blog posts, hosting webinars, speaking, and warning of the coming enforcement date. Businesses began feeling fatigue from the endless webinars and articles on the GDPR. Yet, as we got closer to May 2018, my clients became more and more interested in what GDPR meant for their businesses. 

Unfortunately for businesses with potential GDPR compliance issues, it was difficult to implement compliance measures quickly and efficiently. What were these businesses doing for the two years leading up to May 2018? 

On June 28, 2018, just a few weeks after the GDPR took effect, the California Consumer Privacy Act (CCPA) was signed into law by Governor Brown with an effective date of January 1, 2020. 

Many businesses have already taken important steps to comply with the CCPA by updating their website privacy policies and upgrading data security systems, processes, and policies. I am also seeing a significant uptick in CCPA related calls and emails as we get closer to July 1, the date by which the California Attorney General was required to adopt regulations implementing the CCPA. 

So how real is this July 1 enforcement date?