When a Popular Magazine Gets Accused of Trademark Infringement [e128]

December 10, 2014

The guys discuss the fallout from alocal San Diego blogger who accused San Diego Magazine of stealing her business name. They then answer the question, “I’m a sole proprietor. What is some good tax advice to reduce my year end profit?”

Full Podcast Transcript

NASIR: All right, welcome to our podcast where we cover business in the news and answer some of your business legal questions that you, the listener, a business owner, can send in to ask@legallysoundsmartbusiness.com.
My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: And, this time, we have a nice local episode in San Diego.

MATT: Well…

NASIR: What?

MATT: Local for me; not for you.

NASIR: Yeah. Well, the topic’s local, that’s what I mean.

MATT: Oh, okay.

NASIR: It’s about this issue that’s going online with San Diego Magazine, but I’ll let Matt introduce it. He said he has some “hot takes” on it. I’m not sure what a hot take is, but I do have some takes as well.

MATT: So, San Diego Magazine, they published their September issue. On the front, it says, “Hidden San Diego.” It’s all these secret things to do and see and I kind of want to see where some of these things are, but I’ll have to buy the issue, I guess. Or maybe I won’t. I don’t know if I’m going to protest what they’ve done. But, apparently, what is this? A blog, I think, is what it is. I should probably know this.

NASIR: Yeah, it’s a blog. Or it’s a website.

MATT: I guess I didn’t go to the website which I probably should have.

NASIR: Yeah, you probably should have.

MATT: So, there’s a woman, they called her a blogger so I figured she just had a website/blog, but it’s also called Hidden San Diego. So, now, this issue came out and she is very upset because she’s claiming that the magazine essentially stole her idea. She’s been doing this for four years, according to her. Now, she’s basically had her idea stolen and all her hard work.
So, this happens, she posts something on Facebook. There’s actually a pretty big backlash against San Diego Magazine. I guess she had a lot of people on her side. And then, San Diego Magazine posts a response about a story they allegedly stole which, I guess, it’s not even really a story they stole. I think it’s more of an idea. We’ll have to link the response so people can read it. But the response is pretty poor in my opinion. It’s really belittling the blogger and this is where I’m torn, I guess. The facts are, I think, in favor of San Diego Magazine, if everything is true, based on what they say; they just did it in the worst, you know, one of the worst ways possible. Like, they could have handled this with a lot more tact and come off a lot more professionally.

NASIR: I’m looking at hiddensandiego.net. So, it looks like this is a well-developed site. I mean, there’s a lot of content. It’s not necessarily the best designed site, but it seems like a lot of people do read it and, let’s see, it is a blog, I guess, and it looks like the last post was on October 26, 2014 – a couple of months still. But she’s already talking about how San Diego Magazine, they actually filed a trademark for “Hidden San Diego.” That’s pretty much the issue.

MATT: That was probably, like, the most important part of it. Sorry.

NASIR: That’s okay.

MATT: I thought I’d mentioned that for some reason.

NASIR: This is a trademark dispute. And so, what San Diego Magazine did, I think, as far as we know, all they did right now was file a trademark and they have one issue about hidden spots in San Diego. The response, like Matt said, it’s not really well-written which is unusual for a publication of this kind and it does seem kind of petty. But, nonetheless, they do make some arguments that are pretty compelling from a legal perspective.
First of all, this blogger did not trademark the term “Hidden San Diego” as far as I know, as far as from what she’s published online.
Second is “Secret San Diego,” first of all, it’s not necessarily original an idea. I mean, I think every city has secret spots of whatever. How do you steal that idea when it’s pretty obvious? Frankly, ideas are not under any kind of protection – that’s why you have trademarks, that’s why you have copyright and so forth. What’s interesting, if you read the comments under the article – the Facebook comments – it seems like people in general are overwhelmingly in support of the blogger. Maybe it’s just kind of what I’ve read and, obviously, there’s a little bit more of an online culture in favor of the blogger and the victim here, but I’m trying to figure out if San Diego Magazine did anything morally wrong either. What do you think?

MATT: Ugh. Well, I was going to follow up at something you just said. Just to follow up with you, there’s two trademarks that have been filed. The first was September 12 this year by San Diego Magazine and then September 24 by this blogger.

NASIR: Oh, okay.

MATT: So, two weeks later, she did file. Hers is for a website featuring blah, blah, blah, and I’m assuming San Diego Magazine is for a magazine – yes.

NASIR: So, I already know that a few attorneys in San Diego have approached her and I’m sure one of them has been retained to handle this. I’m sure she’s going to be taken care of from that perspective.
Here’s another thing. San Diego Magazine, they filed their trademark under a magazine class as far as the description goes which I’m not sure how this blogger did hers.

MATT: That’s what I just said. Yeah, hers is for a different class and it’s for providing a website featuring articles, videos, and blogs about parks, businesses, tourist attractions, tourist information.

NASIR: Oh, okay. That makes more sense. I was worried for a second that she would go too broad and that it would obviously be in conflict with this other trademark. But, back to my question, I mean…

MATT: Morally wrong? Yeah.

NASIR: Yeah, morally wrong. What do you think?

MATT: I can only base it on what I’ve seen in terms of what’s been posted on these things here. If you look at San Diego Magazine’s response, although poor, if everything here is true, then I’m leaning a little bit towards them because it looks like they did try to email her. Yeah, I think she even admitted that. You know, she just didn’t have time to get back to the email. They reached out and emailed her. They said they would like to interview her for an upcoming issue about this secret San Diego. That’s another thing too to keep in mind. Originally, it was “Secret San Diego” and then they ended up changing it to “Hidden San Diego” which is the exact name.

NASIR: It’s also hiddensandiego.net and not dot-com. There’s also a dot-com which apparently has been around for nine years and it’s a Wiki. So, again, is it an original idea? I don’t know.
One thing that is interesting, okay, if San Diego Magazine were to trademark the term outright – and not only the magazine class but others – then I can see it kind of being a little bit, you know, it’s kind of a jerk-ish a little bit. It’s, like, “Look, this is our town. Anyone can write about this stuff and, by you doing so, it really limits other people from providing this and why should you have a monopoly on this issue?” Writing about hidden spots in San Diego, I don’t think the term should actually be trademarkable. It’s such a generic term to me that I think in every city it’s like that, you know? I don’t know.

MATT: I don’t even understand why San Diego Magainze trademarked this in the first place.

NASIR: That’s a good point. I would assume that maybe it’s going to be like a yearly issue that they do and they don’t want other magazines doing the same thing. But, again, it’s like, “Why should San Diego Magazine have the monopoly on other magazines posting that?” You know? I wouldn’t be surprised if there were other magazines that were to challenge it. I don’t know.

MATT: Yeah, it’s not a novel concept. It’s happened in a bunch of different cities, publications, et cetera. But another thing too, one of the things Hidden San Diego said was, you know, this is another issue, “I’m trying to grow my site. By them trademarking it, they’re greatly inhibiting my aspirations. What if I wanted to take it to print? That’s an idea I’ve definitely had. I’m wanting to write a book, for instance. Now, they’re taking it away from me.” It’s like, “Well, if you wanted to do that, you have to have done it.”

NASIR: Well, frankly, there already are other books on Amazon – Hidden San Diego, including beaches; Hidden History of San Diego County. I’m not her attorney, but I don’t think this trademark would be limiting that either and remember that they actually have to enforce it. But the best thing that could happen to her blog is what’s happening right now. That’s the reality, right?

MATT: I was just going to say that exact thing. Like, this is actually probably the best thing that could have happened because I would have never known about this. I’m sure it’s the same for a lot of people. They wouldn’t have known.

NASIR: And I don’t want to be hard on the blogger but, frankly, from a web development perspective, it is one of the worst blog sites I’ve seen in a while that’s popular, and I’m sure they get a lot of visitors and so forth, but it’s the fonts that you can’t read and it’s just a very old style kind of thing. It looks like it’s a free site made by Yola or whatever. But, I mean, nonetheless, it’s about content, right? So, I’ll excuse that for a second. But the point is that this is a great opportunity to take advantage of all the publicity.

MATT: You didn’t have to call out her website. That’s fine. I’m not calling out her website.

NASIR: I am kind of a web programmer on the side, so…

MATT: Yeah, you’re way more artistic than I am so you appreciate the aesthetics more than me.

NASIR: I’m definitely not artistic. I like cool designs and art. But I’m definitely not artistic. That’s for sure. Who’s in the right here?

MATT: It would have been an easy pick for me – San Diego Magazine – but that response is just so awful. And then, the woman who posted the response went down in the comments and just, like, almost made it worse. They’re, like, continuing on.

NASIR: Oh, I saw that, yeah. I saw that. That’s true.

MATT: I’m still probably going to side with San Diego Magazine despite the poor response.

NASIR: Well, link this, right? We have to link to the response and we’ll also link the Facebook page basically so you can get both sides of the story.
[MUSIC]

MATT: Okay. Let’s get to our boring legal questions.

NASIR: Yeah.

MATT: “I’m a sole proprietor. What is some good tax advice to reduce my year-end profit?”

NASIR: I’m going to defer to you on how to answer this because I only know one answer is – actually, I know a couple – one is to increase expenses and two is to reduce revenue.

MATT: Reduce revenue?

NASIR: Yeah.

MATT: I guess that’s one way to do it. There’s a really easy answer to this – I mean, there’s a lot of answers but – the easiest answer is… So, a lot of sole proprietors do things on a cash basis. I don’t think even a lot of people know the cash versus accrual basis. Basically, what that means is any revenue and any expenses are when you receive the money so that’s all that is. Accrual is different. If you prepay for a year of something, you know, you divide it amongst the twelve months and so it might be a little bit different. So, if you prepay for something in June…

NASIR: Yeah, and that works for expenses too, of course.

MATT: Yeah, if you prepay for something in June then, you know, or July, for a year, you only get six months for that year, you know, blah blah blah. So, pretty much every sole proprietor is going to be a cash-based, I would think. So, the easiest thing to do is, you know, if it’s getting close to the end of the year and you want to reduce your taxes, just buy a bunch of things at the end of the year that you’ll need for 2015. That way, you’ll have a reduced bottom-line for this year. The only problem is I guess you’ll probably have to do the same thing for next year too if that’s the case. So, you’re just going to be constantly buying things in advance until the business is done.

NASIR: I’m in December now. This is for 2017. I need a new computer so better pay for it now!

MATT: And I don’t really do too much tax preparation or even that much tax planning – well, for me, I do – but for other people, I’ll usually have a couple of people contact me at the end of the year and they’ll be like, “Tell me some things to do last-minute where I can, you know, not pay my tax,” and, you know, like I say, my advice works but, at the same time, you’re just going to have to do the same thing next year. The advice only makes sense if you’re going to make less money next year.

NASIR: Yeah.

MATT: And people worry about taxes way more than they actually should. Like, people will just spend so much time trying to reduce the bottom-line and it’s like, well, it’s going to come out to about the same. I mean, there’s obviously huge things you can do, but I have a different view.

NASIR: And, you know, tax planning at the end of the year, only companies and individuals that make quite a bit of money really seem to have big differences, depending upon how it’s done, you know.

MATT: Yeah, if you’re buying, like, a helicopter and that’s, you know, $20 million and you’ve got to figure out what form of depreciation to use then, yeah, it’s going to be a lot different. But, if you’re a normal business – I mean, you have rent, supplies, utilities, things like that.

NASIR: There’s only so many things you can do.

MATT: Yeah, it’s not going to make a huge dent in what you do. I guess, if you have inventory, you can do different inventory techniques like LIFO and FIFO and weighted average, but that’s well beyond the scope of this podcast.

NASIR: Yeah, you just lost everyone. Everyone just turned off the podcast just now. They’re like, “What is going on? I’m stopping it.” In fact, no one’s hearing me right now. It’s just you and I.

MATT: That’s fine. Maybe you can just make fun of more people’s websites now.

NASIR: Okay. The following websites are horrible…
Speaking of, make sure you go to our website which is pashalaw.com. All of our podcasts posts are now from legallysoundsmartbusiness.com. They’re all posted on our Pasha Law blog page. But you can go to legallysoundsmartbusiness.com and it will redirect you to our podcast posts accordingly.

MATT: Or you can listen on iTunes if you just want to listen.

NASIR: Oh, yeah, that’s –no doubt – the best way. Most easiest. Most easiest or most easy?

MATT: Someone asked me last week what Pasha Law meant. I was like, “I don’t even know how to answer that.” That’s someone who knew who you were, too. I was like, “Uh, can’t figure it out there? Yeah, it’s a very old term – dating back to Medieval Times.”

NASIR: Just so you know, it’s my last name and “law” together.
All right, guys. Thanks for joining us.

MATT: Keep it sound and keep it smart.

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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