(blogging from Alaska!)
I wrote in more detail over at the RescueTime blog, but we got out first review of RescueTime over at The Red Ferret Journal. Absolutely smashing!
Most Amazing Sexist Quote o’ the Day
“The “single most underappreciated fact about gender,” he said, is the ratio of our male to female ancestors. While it’s true that about half of all the people who ever lived were men, the typical male was much more likely than the typical woman to die without reproducing. Citing recent DNA research, Dr. Baumeister explained that today’s human population is descended from twice as many women as men. Maybe 80 percent of women reproduced, whereas only 40 percent of men did.”
This article–and the speech it’s quoting from– are just plain awesome.
The Future of Cold Calling and Spam is Bleak (Yay!)
I’m going out on a limb to say that the future of cold-calling (and unsolicited offers in general) is pretty bleak. Which gives me great joy.
On one hand, unsolicited sales is getting cheaper, easier and (for a while) more effective- volume is going up.
On the phone front… With powerful CRM systems, companies can easily measure the success of cold calling and optimize it. Want more sales? Add more telemarketers. Run out of people to sell to? Buy a database in a new market segment. Sell to the same people again with a different pitch. With banks of low cost people who can call dozens of people per hour, you can see great success.
On the mail front… Digital printing is getting ridiculously cheap and companies have nailed the art of cost effective bulk mailing. Mailing lists are plentiful, cheap, and well targeted.
On the email front… Well, we’re all familiar with spam. And, of course, it’s pretty easy to send lightly customized emails to potential clients in a more manual way, liberally copy-pasting blocks of text.
Heck, even in the world of recruiting you see it. 15 years ago, applying for a job was a fairly careful and laborious task. You bought fancy paper, carefully crafted your resume, and often hand-delivered it. Now people can apply to dozens of jobs in an hour. Not qualified for a job? Who cares– it costs you nothing to apply. Fire and forget!
The problem with spam being so damn easy (whether it’s on the phone, in the mail, or on the intertubes) is that the volume gets high enough that sifting through these offers is no longer an effective way to spend your time. Essentially, it’s banner-blindness outside of your browser. Cold callers and marketeers are training us to flip our “ignore” switch as soon as we detect direct-marketing. So how do you know what to buy? Who to hire? Which non-profit to support? That brings us to…
Search is getting damn good, and social networking is actually getting useful
Years ago it was actually challenging to find vendors with a specific product/service. You could crack open the Yellow Pages and hunt around for the appropriate heading that you’re looking for (“Web Development – See Internet, Web Development”) and… at that point you have a list. No way to know if the vendors are good, bad, cheap, expensive, ethical or evil. You could try to network your way to a referral, but that was a bit of work, too. You could make a few calls to trusted colleagues/friends and see if they had any recommendations, but oftentimes they wouldn’t.
So, when the phone rang with a telemarketer, why the hell wouldn’t you buy from them? They’re just as good as your list of unknown vendors in the Yellow Pages. Add ‘em to the list, hear them out, get a bid/quote. Can’t hurt, right?
Nowadays, Google makes finding a vendor easy (or at least easier). Do a search, get a list. You’re done. No 40 pound book (I just dumped my Yellow Pages in my recycle bin the day after I received it- unopened). And it’s a bit more democratic– no longer is the vendor list sorted by who can buy the biggest ad, and no longer is the content controlled exclusively by the vendor. The TRUTH about the vendor (whether it’s good or bad) is becoming more readily available.
Enter social networking… With Twitter, Facebook, and LinkedIn answers (near as I can tell, the only useful piece of LinkedIn), I can ask ANYTHING and get trusted responses. A few months back (at my previous job) I asked on LinkedIn if people knew a good web development firm in Seattle and got about 20 responses… Many from people who I had actual relationships with. If you come up empty in your network, you can always drop in at Craigslist or Yelp and ask for recommended vendors from people who have first-hand experience working with them.
Mix it All Together and…
I just got a call from a very polite telemarketer selling technology outsourcing services. I told him I didn’t need any. He asked (as any good salesperson would) if it would be okay to follow up in a few months. I started to say, “Sure, can’t hurt”, but reconsidered. “Harry, I’ll be honest with you,” I said. “If I need your services in a month or a year, I’m going to give my business to someone that my friends and colleagues recommend. If I can’t get a recommendation, I’ll research it on the web and pick a vendor. If you want my business, my best advice would be to do great work for people in this town so that when I do start asking around, your name comes up.”
I think more and more people are thinking this way (even if they aren’t saying it). Between the deluge of marketing we’re getting bombarded with and the ease with which we can find a trusted vendor, I have high hopes that cold-calling (and Yellow Pages with it!) will meet a quiet death in the next decade or two as these tools and ideas find their way into the mainstream. If we can pull that off, then customer service (and product quality) will truly be the new marketing.
What to do if you get sued and you’re the little guy
(Tony’s note: this post is a guest post from a friend who shall remain nameless)
Two years ago our corporation was sued by a larger company over trademark infringement. My business partner and I have chatted post-mortem about the experience many times since. I thought I’d try to document and share the lessons we learned in the hope that it will help other small startups who encounter the wrath of a bigger fish.
One morning we were milling around the house. My wife checked the mail – she’s the organized one – and saw a letter on a fancy envelope that looked like a law firm. She opened it and it was a cease and desist notice from a law firm telling us to stop using our company name and to hand it over to them.
Big Mistake #1:
At that point I called up a law firm who’s domain name was something like ‘domainnametrademarklawsuitlawyerattorneyguy.com’. I found him via Google (obviously). I had a chat over the phone with the guy and didn’t get much useful information but he was happy to take my money. He was very reasonably priced – he offered me a package that included a response letter and some basic negotiation for what most law firms bill per hour.
Big Mistake #2:
He sent me the first draft of the response letter and it was a letter that suggested we’d go belly up without a fight. I called him back. I still didn’t get much legal advice. But I told him to go out and buy himself a spine and rewrite the letter. So he did.
The letter came back fairly aggressive and my thought was that we’d let these guys know they can’t just push us around.
When I eventually got a good law firm working for us (more on that in a moment) my new trademark attorney couldn’t believe we sent something that aggressive to them. It set a very bad tone for negotiating.
Big Mistake #3:
After having my $2 attorney send opposing council a f***k you note, I decided to call them up. The CEO wouldn’t take my call but referred me to his attorney who I learned from the receptionist was a litigator and was on permanent retainer. I also got the impression he was based on-site. I got the litigator on the line and laughingly asked him if he thought his case actually had any merit. He said he did. The conversation quickly ended.
Later I got several calls from the CEO himself. Instead of referring him to my attorney, I got chatty with him too.
I had succeeded in making the case personal.
Big Mistake #4:
After a few weeks I got rid of domainnametrademarklawsuitlawyerattorneyguy. I posted a message on a webmaster business discussion forum and made contact with a very competent and reasonably priced trademark attorney based in SF.
Even after retaining a great law firm to deal with this, the only knowledge I was gaining about the case and trademark law was through osmosis from my attorney. I never bothered to gain a deep understanding of what I was up against.
We went through weeks of negotiating via my new attorney trying to undo the damage my previous attorney and I had caused. She did a spectacular job but we were still drafting motions and steadily heading to court.
If I’d done my homework quickly and understood what we were really up against I would have done whatever I could to bring this thing to closure much sooner.
Closure
I wont bore you with the details of how this played out and confidentiality agreements prevent me from sharing the interesting details with you. But at the 11′th hour I repaired my relationship with the plaintiff’s CEO sufficiently to talk a deal.
OK children, what have we (I) learned?
- When you receive a cease and desist notice, take it very seriously because it may be the beginning of a very long and expensive lawsuit.
- 2. Find a very good attorney who specializes in the relevant field. Don’t go for a big name law firm. Preferably find someone who was working for a big name law firm and recently started their own practice. You’ll get big name experience and someone who is lean and hungry – and reasonably priced. Many attorneys are happy to spend an hour with you on the phone for free chatting about your case. Use this hour wisely and you can get a ton of free legal advice. Set up conference calls with as many law firms as you can and get lots of free hours and a free education.
- Go to school. Drive down to your local Barnes and Noble and start learning as much as you can about the problem you’re facing and the claims that have been made against you. If you’re an entrepreneur this won’t be a problem because you’re used to absorbing fantastic amounts of information in short periods of time.
- Lawyers are notoriously shy about responding to direct questions like “Should we settle or should we go to court?”. It’s in their nature because they’re worried about getting sued. They’ll simply present you with the facts and leave the decision up to you. But if you have a good working relationship with your attorney, ask them this question and keep pressing and they’ll probably give you some advice off the record.
- Take any advice you get from an attorney in context. If they’re a litigator, they’re just itching to battle it out in court. Even if they aren’t, if you choose to fight it means they’ll get to draft fun motions and make exciting filings and do what lawyers do. And of course they will generate many many billable hours and while many lawyers defy their field’s reputation and are in fact well meaning good people, it’s tough to turn away tens of thousands in billable hours. That’s why you need to learn as much as you can about what you’re up against and make your own decision.
- NEVER EVER call up opposing council directly and NEVER NEVER NEVER EVER call up anyone who works for the company that’s suing you – especially the CEO. No matter how many times dad told you to deal with issues like this man-to-man, don’t do it. You’ll risk turning this from a cost-of-doing-business issue into a personal proving-a-point issue. The only reason I negotiated directly with the opposing CEO when settling was because I’d already made it personal and had to repair the damage.
- Make sure you don’t take the fact that you’re getting sued personally. One of the things I learned is that companies who own trademarks are obliged to enforce their trademark rights or they risk losing them. The company you’re dealing with may have no choice but to ask you to change your name – or take whatever legal action they’re taking.
When making your final decision about whether or not to comply with the demands of the C&D, or whether or not to go to court, consider this:
After doing all your research you may still be unsure about whether or not you’re right and they’re wrong. Make the decision a financial one. Look at your company’s revenue and how much you would lose by complying (changing your name in my case). Then look at the cost of litigation if you went to court.
If you’re just starting out it’s very likely that you’ll make the decision to avoid the legal bills and get on with your business.
If all your research tells you that you’re in the right and the financial data says you should fight the good fight, then go for it. But know that it’s going to take a long time and it risks demoralizing the management team and staff if they’re not shielded from the process. View it as a simple cost of doing business, don’t discuss it with staff unless you have to and get on with building a successful business.
What we do now to avoid tradmark lawsuits:
I wrote this in the hope of providing some general advice on dealing with early stage lawsuits, but here are a few tips to help you avoid getting sued over trademark infringement specifically:
- Do a search on USPTO.gov for your future name using their trademark search engine
- Do a simple Google search for your name. The best names I’ve found have 2 or three results come up and usually it’s someone’s nickname on a discussion forum used years ago or something inconsequential like that.
- NOLO provides many great books on trademark law, many of which we’ve bought and studied. Reading a few of these will give you a good basic understanding.
- Do a full trademark search using a trademark attorney or search service including federal, state and local. We use trademarkexpress.com which we recommend.
If you plan to be around for a few years, file your trademark with the USPTO using a reputable trademark attorney.
I hope you’ve found this useful.
DISCLAIMER: I am not a lawyer (ed: neither am I!) and this article is my personal opinion. It should not be construed as legal advice, in part or in whole, in any way, shape or form.
(Tony’s note: Pretty sobering experience. I’ve never been involved in any lawsuits– knock on wood– but virtually every one that I’ve personally witnessed has been a result of someone taking something personally. It’s not a game. It’s not about egos. It should be about finding the fairest compromise that allows everyone to get back to the business of making money ASAP. Heck, you can expand that truism to just about ANY business negotiation.)
I just gave myself a $18,642.80 Raise
People don’t always directly associate expenses and income, and very seldom calculate taxes when they do. Here’s how I gave myself a $18,642.80 raise with a few phone calls and a craigslist ad. Your mileage may vary.
- I called Comcast and asked them to cancel my landline phone and cable TV (retaining Internet). They offered to cut my rate to let me retain all three services. I declined. They offered an even lower rate. I accepted.
Total Savings: $1080 per year.
Total amount I’d have to earn at a 33% tax rate to earn that money: $1436.40 - I called the Seattle Sailing Club and canceled my membership. I love sailing, but at $200/month I wasn’t using the boats enough to justify it. There are hopefully places around town where I can rent boats from time to time, but I’ve also got a few friends with boats who invite me from time to time, so I’ll likely get my sailing fix there.
Total Savings: $2400 per year.
Total amount I’d have to earn at a 33% tax rate to earn that money: $3192.00 - My wife and I made a commitment to eat out more at our cheap favorites and limit our extravagant favorites to once a month. Our favorite cheap-eats places have outstanding meals and we’re always delighted to go there. Also on the plus side, this make the extravagant favorites a slightly more special experience.
Total Savings: $2160 per year (replacing 3 $100 meals with 3 $40 meals per month)
Total amount I’d have to earn at a 33% tax rate to earn that money: $2872.00 - I’m selling my sportscar. I’ve got a bit of cash in it and have been paying $600 a month (to pay down the principal faster). I don’t get a ton of joy from cars, and can’t find a way to justify owning an expensive one. I’ll be buying a cheap 4-door sedan with the cash that I get from selling the car. While most people don’t have a $600 car payment, most people DO pay monthly payments for a nicer car than they could afford with cash. There are plenty of reliable vehicles for sale– why pay a monthly premium just to have a shinier and newer vehicle? If you get a lot of joy from cars, of course, this might be worth it. But how many great family vacations could you buy with this money?
Total Savings: $8377.44 per year (payment plus estimated insurance for comprehensive coverage and a more expensive vehicle)
Total amount I’d have to earn at a 33% tax rate to earn that money: $11,142.00
As I said before, your mileage may vary. The point of the exercise (for me) was to look at all optional recurring expenses and do an honest analysis of just how much happiness and satisfaction they generate when compared to the cheaper alternatives. The changes above don’t substantively change the quality of my life and bring me that much closer to my goal of having my passive income (from real estate, investments, etc) cover my life-expenses. It also, as an entrepreneur, frees my money up to invest in more interesting (and potentially lucrative) things.
