Skip to main content
Ryan R Gile

Ryan Gile’s Answers

5 total

  • Is it recommended to incorporate a commercial jump plane?

    Should we incorporate a jump plane and are there advantages to being a delaware corporation.

    Ryan’s Answer

    Disclaimer: This answer is provided as a public service and as a general response to a general question, it is not meant, and should not be relied upon as specific legal advice, nor does it create an attorney-client relationship.

    If the jump plane is part of a business, then it is probably better to do business as some form of juristic entity (corporation, LLC, etc.).

    As for Delaware, the primary advantages of being a Delaware corporation relate to Delaware's well established corporate law. Major companies like to form their holding companies their for purposes of going public.

    Depending on where you are going to be conducting your business, that's the state where you should incorporate. Incorporating in Delaware is most advisable if you plan on going public or if you are going to establish some kind of joint venture with some other big company that is familiar with the benefits of Delaware law. If you are a small business and not conducting business in Delaware, then its probably not worth the additional hassle because you will have to register your Delaware corporation as a foreign corporation in whatever jurisdiction you end up using anyway (e.g., Pennsylania). The cost of the foreign corporation registration is typically the cost as incorporating directly.

    Contact a lawyer in whatever state you plan to conduct business to discuss the best way to establish your business based on your unique circumstances.

    See question 
  • Is this a trademark infrignment?

    I have registered a domain name say "domain.in". There already exists a website "domain.com". I did not use "domain.in" to make money in any form. I did not sell any products or services nor display any advertisements in "domain.in". But i simply...

    Ryan’s Answer

    Disclaimer: This answer is provided as a public service and as a general response to a general question, it is not meant, and should not be relied upon as specific legal advice, nor does it create an attorney-client relationship.

    Under 15 USC §1125(d)(1)(A). a domain name registrant can be liable for cybersquatting if the registrant
    (i) registers, traffics in, or uses a domain name that a) is identical or confusingly similar to a distinctive mark which is distinctive at the time of registration of the domain name or b) is identical or confusingly similar to or dilutive of a famous mark which is famous at the time of registration of the domain name and
    (ii) has a bad faith intent to profit from that trademark, including a personal name, which is protected as a trademark under Section 43 of the Lanham Act.

    You acknowledge that the domain name is similar to the company with the domain.com, so assuming that domain is a distinctive mark, then the issue becomes whether you registered it in bad faith.

    The statute (*15 U.S.C. § 1125(d)(1)(B)(i)) sets forth nine non-exclusive "bad faith" factors that courts consider in determining bad faith:
    (I) the trademark or other intellectual property rights of the person, if any, in the domain name;
    (II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;
    (III) the person’s prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;
    (IV) the person’s bona fide noncommercial or fair use of the mark in a site accessible under the domain name;
    (V) the person’s intent to divert consumers from the mark owner’s online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
    (VI) the person’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person’s prior conduct indicating a pattern of such conduct;
    (VII) the person’s provision of material and misleading false contact information when applying for the registration of the domain name, the person’s intentional failure to maintain accurate contact information, or the person’s prior conduct indicating a pattern of such conduct;
    (VIII) the person’s registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and
    (IX) the extent to which the mark incorporated in the person’s domain name registration is or is not distinctive and famous within the meaning of subsection (c)(1) of this section.

    Without knowing your specific details, it would appear that your strongest argument is #4 (non-commercial, fair use) -- you indicate you are simply displaying information related to the product. Or are you? Are you advertising a competing product? Do you have any ads displayed on the webpage? Things like those can change your non-commercial domain name into a commercial domain name.

    Barring that, the primary factors would be whether you have trademark rights to the name (which you acknowledge you don't) and prior use of the domain in connection with goods or services (which you don't have either).

    The "huge amount" of damges that they are referring to are the "statutory damages" for cybersquatting (15 U.S.C. § 1117(d)) which can range from $1000 min to $100,000 max per domain.

    See question 
  • What are the chances my trademark application will be accepted if there is another TM with a similar name in the Fed registry?

    I'm starting a business in Colorado and have been doing some research on trademarks. There is a TM with a similar name in Washington State. Our two businesses are in the same industry. Here's an example using fictitious names: - Registered T...

    Ryan’s Answer

    Disclaimer: This answer is provided as a public service and as a general response to a general question, it is not meant, and should not be relied upon as specific legal advice, nor does it create an attorney-client relationship.

    I was unable to find a federal registration for "THE PIG STY" in the PTO's database for anything involving pottery -- there were some pending applications for restaurant services, sauces, and clothing, but nothing involving pottery.

    If there was a federal registration for THE PIG STY for pottery goods, and you wanted to registere PIG STY POTTERY for pottery goods, the PTO would most likely refuse registration. The term POTTERY would have to be disclaimed and would carry little weight because of its descriptiveness. So you are left with two marks that are nearly identical for identical goods. No chance at the federal level.

    The state level is a different matter. Most states are not very carefuly at reviewing applications. So long as the same mark for the same goods is not already registered, they will typically just register. But then again, a state registration is often worth the paper its printed on. Such registrations are good for stopping other people from using the same mark in the same state -- but they don't really get you anything outside your state beyond what you would have under common law (which looks at your actual market penetration as well as the penetration of your reputation in those markets where you have not penetrated).

    Is she selling the entire business or just the trademark? If she just wants to sell that name itself, but is not really selling the underlying goodwill of the business that goes along with the name, then not only is that a bad purchase by you but could also be deemed a naked assignment.

    The amount that should be paid for the business (including the trademark) depends on the value that the mark has to the business. If its just a state registration and the business is pretty local (with some online sales), then it might not be worth that much. But if there is a federal registration, then that would be worth more -- again to the extent you acquire the goodwill that goes along with such mark. You should try to seek out the services of an appraisal company with experience in appraising trademarks and other intellectual property.

    See question 
  • What is the standard cost to incorporate a 501 c3 in Pennsylvania.

    If I wanted to create a 501 C3 non profit organization which are required to incorporate by Pennsylvania State law what would be the cost in legal fees and taxes?

    Ryan’s Answer

    501(c)(3) is a federal tax designation. You can incorporate a non-profit corporation in the State of Pennsylvania. Click http://www.dos.state.pa.us/corps/cwp/view.asp?a=1093&q=431294 for a link to non-profit corporation page of the Pennsylvania Department of State. However, if you want you non-profit to have a 501(c)(3) tax exemption, you have to file an application with the IRS. See Form 1023 -- http://www.irs.gov/pub/irs-pdf/f1023.pdf. For more details about obtianing a tax-exempt status, see IRS Publication 557 at http://www.irs.gov/pub/irs-pdf/p557.pdf.

    Disclaimer: This answer is provided as a public service and as a general response to a general question, it is not meant, and should not be relied upon as specific legal advice, nor does it create an attorney-client relationship.

    See question 
  • Are non-compete contracts enforceable?

    I started with an industrial distributor in Tennessee as a warehouse worker. Over the years I got promoted and relocated with the same company to Texas, and was there for 11 yrs. I have now moved back to Tenn. and took a job with a competitor. No...

    Ryan’s Answer

    As a preliminary matter, these comments should not be construed as legal advice. You should consult an attorney in your local area (one familiar with Tennessee law) regarding the enforceablility of a non-compete clause based on your unique factual circumstances.

    Having said that, while most states will enforce non-compete agreements, the law will also define the parameters of an enforceable non-compete agreement. Because such agreements are deemed to be in effect a restraint of trade (and thus against the idea of a free market), courts will not enforce them in accordance with their terms unless they are reasonable. The period of time during which the restraint is to last and the territory that is included are the important factors to be considered in determining the reasonableness of the agreement. In other words, for a non-compete agreement to be enforceable, it must be reasonable both in geographic scope and duration of time.

    Typically, the broader the geographic scope of the restraint, the shorter the period of time must be for the non-compete to be enforceable. So if I try to restrict you from a job with a competitor throughout the entire U.S., the length of time had better be very short -- or else its an unfair restraint on trade. Alternatively, you competitor can keep you from competing for a longer period of time -- in a very small geographic area. One additional factor can be the extent to which you may have been exposed to important trade secrets. But this again is part of the overall balancing and determination if the agreement is reasonable.

    Courts frown upon enforcing any agreement that is going to prevent you from performing your livelihood where you reside, especially if it is not reasonably necessary to protect the company’s interest and would impose an undue hardship on your livelihood. In addition, typically if the non-compete is unreasonable in either geographic scope or duration of time, the courts will not enforce it all.

    So take a copy of your non-compete agreement to a local attorney, discuss your particular facts and circumstances, and allow that attorney to draft a letter responding to this company's threats.

    See question