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Nasir and Matt discuss Small Business Saturday,the involvement of American Express, andhow to participate if you are a small business.

Full Podcast Transcript

NASIR: Welcome to our podcast where we cover business in the news and add our legal twist. My name is Nasir Pasha and, today, we are here with our expert on small businesses and the law – which is actually true.

MATT: Yeah, Matt Staub. Yeah, it’s probably the closes one we’ve had so far.

NASIR: Yeah.

MATT: We usually talk about this every year – or at least the years we’ve been doing the podcast. Actually, no, every year – it just wasn’t recorded in previous years.

NASIR: That’s true; we always talk about it but we don’t always record our conversation.

MATT: Yeah, it started in 2010 so this would be the fifth year. Wait.

NASIR: Well, yeah, no…

MATT: Sixth year.

NASIR: Yeah, you’re right, sixth year. Dang it! I can’t do my math.

MATT: Yeah, Small Business Saturday which falls on the Saturday after Thanksgiving – two days after Thanksgiving. Small Business Saturday and Thanksgiving create the sandwich around Black Friday and then the thousand other days we’ve talked about – Cyber Monday. There’s a Tuesday now, right? Didn’t we just talk about this last week?

NASIR: A Tuesday? Yeah, for something else, right?

MATT: Yeah, it’s ridiculous.

NASIR: Giving Tuesday I think it is?

MATT: Okay. Well, that’s not ridiculous but…

NASIR: Yeah, I know you’re against that, and I think there’s also Buy Nothing Day. What day is that? Is that the Sunday?

MATT: You’re a big advocate of Opt Outside on Friday.

NASIR: Oh, I’m definitely doing that.

MATT: So much so that you went to REI last weekend after we recorded the podcast.

NASIR: I know, it was just happenstance that I was, you know, by one so I was like, “I might as well head on in,” and I’m like, “Hey!” I asked everyone if they heard my podcast episode and they said… I just actually got kicked out but, anyway, Small Business Saturday… actually, most people don’t know, well, I don’t know, I think most people don’t know this was actually started by American Express. In fact, so much so that Small Business Saturday is actually a registered trademark of American Express which is very ironic because American Express is very far from any kind of small business. They are definitely trying to show their so-called support for small businesses.

MATT: Well, that was my first thought. How many small businesses even accept American Express? It can’t be many.

NASIR: No, you’re right, because American Express is classically more expensive for businesses to accept compared to others. But, at the same time, in the past, and this is why I’m wondering how much they actually support small businesses this year because, in the past, they used to give basically customers – I think it was customers, right? They gave a $10.00 statement credit for businesses that were participating in the program and that was a big incentive for us consumers to actually go out that Saturday and use our Amex cards to actually purchase.

MATT: There’s a couple of things at play here. You know, what you just mentioned (1) American Express just made up this day and now it’s the sixth year it’s been around, and I think it’s had some pretty good success at the numbers. An estimated $14.3 billion spent at small independent businesses last year – good chunk of money that, you know, five years in. But, you’re right, they did use to give; it was up to three $10.00 credits to the cardholders of American Express at these qualified small businesses. But I guess it wasn’t worth it for American Express anymore and they’ve scrapped this offer but now they’re saying instead, “We’re going to increase support and resources to small businesses” – whatever that means, I’m not really sure. I guess we’ll just have to see.

NASIR: Well, from what I’m looking at, they do have, once you register and if you have certain qualifications as a business, then I think there’s some online ads that you’re eligible for. You get certain merchandise or placements like everything from balloons to other digital content that you can download. But I see people use this kind of Shop Small logo and most of you have probably seen it but I bet you a lot of people don’t necessarily go through the registration process. They just grab it online and download it which is actually against their terms of service because this is a trademarked logo. You just can’t use it without permission.

MATT: Yeah, wouldn’t that be funny if this was just a ploy for American Express to shut down small businesses?

NASIR: For trademark infringement?

MATT: Yeah. I’m looking at the agreement now. What is this? The terms of participation, American Express Shop Small marketing program. I mean, I guess I haven’t noticed. Well, what I’ll do is, this Saturday or the Saturday after Thanksgiving, I’ll have to walk around and see if these shops are using this logo. There’s one actually in the neighborhood I live in – or close-by to it – is one of the participating neighborhoods that’s a small shop champion or whatever they call it. I’ll have to take a look and see whether these businesses are infringing on the trademark that American Express owns, then we can represent them in the lawsuit, or we can sue them.

NASIR: Or we can just sue them on behalf of Amex.

MATT: We didn’t mention, American Express is our client.

NASIR: We forgot about that. Small Business Saturday, I mean, it’s a cool concept, obviously – especially us representing small businesses, of course, we’re supportive in that concept. But there is something weird about Amex’s involvement and how they kind of are trying to control this so-called holiday. Literally, they made up a holiday. I mean, it’s a little different than what REI tried to do which basically takes an existing Black Friday and spin it out. But I guess this is more similar to Cyber Monday which didn’t exist prior. I don’t know who was a proponent of that but I’m sure the big online retailers were big proponents of that. Took a lot of marketing for people to be aware of that but, with this, it’s kind of nice because hopefully small businesses will benefit regardless of whether American Express is a marketing proponent of this concept because I’m sure there’s other big businesses that are supportive but the difference is that other businesses – for example, Amazon or Visa or MasterCard can’t also participate in this campaign because Small Business Saturday is rightfully owned by American Express.

MATT: It is an interesting wrinkle and I think you said they just kind of invented it in 2010. But then, it was recognized 2011 – at least according to them, US Senate officially recognized the day. Senators, Obama, all voices to support and then it really took off and the future years. In 2012, 73.9 million people went out to shop at small businesses. I don’t know how they got that number. It seems like it could be off. 1,450 neighborhood champions signed up in 2013 which, like I was mentioning before, in 2014, $14.3 billion spent. Just to go back to what you said before, the businesses are granted some sort of limited license.

NASIR: To use it, right?

MATT: But it doesn’t really detail what it is.

NASIR: Yeah, I’m looking at it here. What’s interesting is that, to be eligible, because you mentioned Obama and the administration, actually, if you are a government agency or a charity, religious organization, even a gas station or even a business located on the same premise as a gas station, you are not eligible for some of these marketing materials. That’s kind of telling because it shows you that, on one hand, this Shop Small logo is readily available to any small business but, if you’re not one of these small businesses that meets these requirements, you cannot exploit the marketing of American Express for Small Business Saturday for your own good – such as, again, Visa and MasterCard.

MATT: Yeah. I mean, how much is any of this going to be enforced? Probably none or very little, but it’s a good point. American Express has got this grip on this day for small businesses and I would imagine the period from Thanksgiving to the end of the year has to be the biggest period of the year for small businesses because that’s the height of gift-giving.

NASIR: Yeah, especially for retail.

MATT: Yeah, not if you’re an ice cream store.

NASIR: Yeah, let’s see, ice cream store, that’s okay. Basically, let’s go over some of the other restrictions. If you’re in manufacturing, promoting, or selling diet aids, drugs, or other pharmaceuticals; of course, pornography, sexual aids, gambling, liquor, tobacco, firearms or other weapons – this is interesting – or any sensitive or any controversial topics with respect to current events. That’s a nice way out for them to basically include anything that they don’t like.

MATT: Yeah, “We don’t approve.” So, let’s give the listeners – they’re hopefully small business owners – some advice on how to approach this if they want to be involved – or even if they don’t want to be involved. It seems like, regardless, it’s a huge shopping day, especially if everybody’s going to opt out on Friday – Opt Outside. Then, Saturday is going to be the big day of the year.

NASIR: That’s true. Well, at least I think step number one is take advantage of the marketing of American Express. You know, sign up through the site. If you have physical locations, then you’re eligible. They’ll actually send you, I think, some actual material. I assume it’s not too late. I mean, we still have some time. Maybe by the time this episode comes out, I’m sure the deadline’s approaching on that, or if you’re an online presence, you can use their logos. Use the marketing material. Leverage what they’re allowing you to do. Very seldom these kinds of companies give you this material for free to use and people are starting to recognize this Shop Small logo so you might as well take advantage of that.

MATT: We are going to get this out in time. It is November 16th 2015 at 11:59 a.m. Eastern Time is the deadline to participate.

NASIR: That would be this Monday, right? Yeah, this Monday coming, after the episode comes out.

MATT: Hurry up.

NASIR: Hurry up and get your logos! Worst case, you can probably just download it online and how are they going to determine whether you… by the way, that’s not legal advice. I’m just telling you kind of practical advice.

MATT: Worst case, just rip it off online and you can turn it off whenever you want. I guess some more legal, practical advice, like you said, why not, when someone’s basically doing the marketing and promotion for you, take advantage of that. it’s at no cost. It’s worth it. I think the other key things are, if you sell – we’re assuming most of it is going to be product-based – just make sure that the inventory is fully stocked and then, also, the biggest thing here, and you have to abide by the wage and labor laws, of course, make sure you have enough people staffed at the store that day. I mean, if you really are expecting this to be one of the biggest days of the year, you want to make sure you have enough employees there working to meet the demand that’s going to be coming through that day.

NASIR: I would also consider leveraging your other fellow small businesses in the sense that getting them to participate will actually help you and help support each other. I suppose this is just general marketing and business operations advice but still good to keep in mind.

MATT: Yeah, it was better than your idea of just rip off everything online. Infringe upon everything and just, you know…

NASIR: That’s true.

MATT: I did just download this passport that they have. I’m trying to see what this is. Printable materials, all right. Well, I just agreed to something and I’m not a small business so that’s probably a problem.

NASIR: Uh oh. You probably violated something.

MATT: Wait, do we qualify?

NASIR: I think so, yeah!

MATT: We should, right?

NASIR: Yeah, definitely. We should really practice what we preach, I suppose. We should at least register and download the logo and put it on our post and market ourselves that way.

MATT: Well, I was going to say, this is our official announcement to announce that the main Houston office is going to be open the Saturday after Thanksgiving from 8:00 a.m. – we better make it 7:00 a.m. to 7:00 p.m.

NASIR: Oh, perfect. I will be there because opting outside will be over so I’ll have to go inside.

MATT: Yeah, you’ll have spent so much time outside that you’ll need to go inside for that whole Saturday.

NASIR: Yeah.

MATT: Well, great, I’m glad we’re going to participate in this.

NASIR: Yeah, I’m excited. By the way, are you going to register? Because I’m too lazy.

MATT: I don’t even have an Amex card.

NASIR: Oh, do you need an Amex card?

MATT: Do we accept it?

NASIR: I don’t think you do. We do accept Amex.

MATT: Actually, that’s something I didn’t look at I would assume in the agreement terms, did they say something about you have to accept? They can’t say you have to accept American Express, right?

NASIR: A listing on the Shop Small map. Basically, you can put your zip code in and things like that. You have to be eligible to accept American Express cards and I think you have to have a physical location, obviously, and things like that. It depends; they have different promotion programs. It just depends upon what you’re looking for but there are advantages of being able to accept American Express.

MATT: All right, we’ll try to get signed up here before it gets too crazy.

NASIR: Before it gets too crazy, yeah. We don’t want to get caught in line for getting our logo.

MATT: Yeah.

NASIR: All right. Well, thanks for joining us, everyone. Happy Small Business Saturday!

MATT: Keep it sound and keep it smart!

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A podcast covering business in the news with a legal twist by Pasha Law PC
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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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