A small business may wish to trademark any design, phrase, or word that identifies what it offers or what differentiates it from others.
Call Your Lawyer The very first person you must tell about your decision to close your business is your business lawyer. You must notify your lawyer as soon as possible and ask as many questions as you need regarding rules specific to your type of business entity for dissolution. For example, businesses with several owners generally need to follow different steps than businesses with a single owner. Depending on your type of business entity, your lawyer will advise you on how to proceed. Hold a Shareholders Meeting If your company has shareholders, the second step is to hold a meeting and personally notify them of your decision to close the business. In this meeting, the board will typically put the issue up for a vote, giving each shareholder a say about whether or not closing the business is the right choice. This is a crucial step, as you will need the majority of the shareholders to agree with you in order to be able to close the business. However, you must make sure to check your company’s formational documents because they typically contain rules on how to dissolve the company. Find the Right Articles of Dissolution for Your Business In Florida, the paperwork requirements for dissolution are different for every type of business entity. These documents are called Articles of Dissolution. Once you find the right articles of dissolution for your company, you can either print the forms, fill them out, and mail them, or you can fill them out and submit them online. If your company has not issued shares or started doing business in Florida, you must use the form conforming to Section 607.1401 of the Florida Statutes. All other businesses must use the form conforming to Section 607.1403 of the Florida Statutes. You can find these forms on the Florida Department of State, Division of Corporations website. It is indescribably important that you fill out and submit the right papers, which is why it is best to speak with a professional – in this case, your lawyer – who is able to tell you exactly which form to fill out. If you do not have a business lawyer, contact Jurado & Farshchian, P.L. today. Notify Vendors, Creditors, and Employees In a situation involving insolvency, the owners of a company usually sell business assets to cover debts. You must notify your vendors and clients and make the necessary arrangements to complete all contracts and pay all outstanding invoices, fees, and sales taxes. You must also cancel all business credit cards, close all business bank accounts, and terminate all lease agreements. Additionally, you must make sure to properly and promptly notify your employees that you will be closing the business. Pay the Filing Fee Once you have filled out the correct form and gathered any additional paperwork, you will be ready to take the final step, paying the filing fee. Luckily, you can do this online, through the Florida Department of State, Division of Corporations website.
Selecting a Brand Name for Your Start-Up It is highly tempting to hit the ground running with that “perfect” brand name you have come up with, wise entrepreneurs always do their due diligence prior to choosing a brand. The first step, in designing an effective Trademark strategy for your start-up, is conducting a detailed search of the market to ensure that another company is not in use of the name you have in mind. To start, simply conduct a Google search or a search of the online database of the United States Patent and Trademark Office (USPTO). However, these types of searches are limited, and marks that a USPTO Trademark Examining Attorney would cite as “confusingly similar” against your brand name, might be overlooked, which could lead to denial of your Trademark registration petition. For that reason, hiring an experienced Trademark Attorney is necessary when conducting a Trademark search. A Trademark Attorney could conduct a comprehensive search focusing on the risk levels associated with attempting to register the brand name you have chosen in order to avoid wasting time filing for the registration of a name the USPTO will not accept. Conducting this search early in the pre-launch process of your start-up gives you an opportunity to make any necessary changes to the name of your brand before it becomes an issue. Reserving Federal Rights to Your Mark Once the Trademark search complete and you feel confident that you have selected the right name for your brand, reserve the federal rights to your mark. U.S. Trademark Law allows applicants who have a bona-fide intent to use the mark to apply for a federal registration before officially debut of their businesses. This allows entrepreneurs to “reserve the rights” to their mark while they are still preparing for the official launch of their companies. If necessary, applicants who reserve their rights, can extend their reservation for up to 36 months. Nevertheless, once the business becomes operational, a second filing with the USPTO is required to prove that a mark is indeed being “used in commerce” as was originally indicated in the Trademark application. Depending on the type of service or product, your business offers, will typically require providing proof that you are actively selling or serving to customers or clients across the United States. Policing and Enforcing Your Trademark Once the USPTO approves your Trademark registration, the next step will be policing the rights to your mark. When it comes to policing the market, to ensure other businesses are not infringing on a Trademark, it is a task for the Trademark owner, not for the USPTO. There are several ways to do this. You can simply conduct a periodic Google search of your Trademark focusing on your specific market. Still, the best way to approach this part of your Trademark strategy is hiring an experienced Trademark Attorney who can monitor the USPTO database to make sure other companies in the same market are not using your Trademark. At Jurado & Farshchian, P.L., we can do this for your company. Not monitoring your Trademark can be severe; your business could suffer. For example, the poor quality of services of products offered by a competitor using a similar name. Working with an Experienced Trademark Attorney The process of launching a start-up can be overwhelming for most entrepreneurs. Still, there is no excuse for overlooking protecting the name of your brand with a Trademark. Moreover, choosing the name of your brand and applying for Trademark registration early will undoubtedly save you a headache or two in the future.
Q: What bodies of work are eligible for copyright? A: Protection is available to original works that are either written or otherwise recorded, including literary, musical, artistic and certain other intellectual works. Q: How does an artist copyright their work? A: When copyrighting, ensure that the artist’s assets have been registered with the U.S. Copyright Office as this provides certain legal advantages and protections. Applications are available online and are fairly straightforward. Note, however, that artists are not eligible to register a copyright when a work was created under an employment contract or “work for hire.” Q: How long does a copyright last? A: If the work was made on or after January 1, 1978, the copyright will last for the artist’s life plus 70 years. (Determining the length of copyright protection for works created before that date is more complicated and depends on several factors.) Q: What happens if a copyright is sold? A: Be aware that even if a copyright has been sold, an artist’s rights to that work may not be gone forever. Copyright laws allow the creator (or his/her heirs or executor) to recapture a copyright. Q: How is the recapturing of a sold copyright handled? A: The law was created to address the injustice that occurs when a creator sells a copyright before the true fair market value is known. An artist, essentially, has a non-waivable right to terminate transfers and licenses granted by the copyright owner. Q: What is the length of time it takes to recapture a sold copyright? A: Generally speaking, copyrights signed away after 1978 are eligible to be recaptured after 35 years; copyrights signed away before 1978 are eligible to be recaptured after 56 years. After that time period, however, artists and their heirs have just a five-year window to effect a recapture. Q: What issues can an artists’ estate encounter when recapturing a copyright? A: Other estate planning issues can come into play concerning how artists’ assets can be assigned to heirs via wills, trusts and other wealth management strategies. Artists must be careful that the work and the underlying copyright are both transferred as intended. Talk to your advisor.
What is a trademark? A trademark is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks. Filing a trademark is the most important thing that a company can do to protect its mark from use and/or infringement. You have a business, service or product you would like to trademark Most businesses recognize the importance of trademarking their business, its services or its products that it sells. Trademarking your business, service or product helps others recognize you separate and distinct from others. Moreover, it provides protection for your brand from others. Things to know about registering a trademark 1. Search Online to see if another business, service, product, etc. is using the mark you want to register. If so, try to figure out if its in the same industry with which you want to use the mark. If not, you should contact a lawyer about the possibility of registering the mark. 2. If you are not currently using the mark you want to register, but will do so in the future, determine when you will use it. You may register a mark that you intend to use, but there are certain restrictions. 3. What is the mark you want to register? Is the name unique, similar to another or describes the brand? If you use a mark that describes what the product or service does (i.e., 'Pouring Coffee' for a coffee shop), there is a possibility that the USPTO will cite it as a 'merely descriptive' mark. There are fine distinctions that one should discuss with a lawyer. 4. Similarly, you cannot trademark 'generic terms'. A generic term is described as 'the ultimate in descriptiveness." A mark is generic if its primary significance to the relevant public is the class or category of goods or services on or in connection with which it is used. 5. Securing a domain name for your business, brand, or product does not protect your mark and is not an alternative to filing with the USPTO. Although obtaining a domain name may secure your spot online, it does not legally bind others from utilizing a similar mark if it has not been filed with the USPTO. 6. Although you can file a trademark with a state, it would be wise to file with the USPTO. Filing a trademark with a particular state will grant you protection in that state. However, if you seek nationwide protection, you should file with the USPTO. Moreover, if you want to protect your mark worldwide, there is an additional process (and fee). 7. What if someone, not in your industry has registered your mark? If you want to sell shoes and recognize that a bartending company has a registered mark with the same name, there still may be a chance you can register your mark for selling shoes. Ask an attorney.
Immediately file an “insurance extension” if there is still time before the deadline to file a State If an applicant has a Specimen Refusal, prior to the final deadline to file the Statement of Use, they should file an “insurance extension” immediately or have their Trademark Attorney complete this filing before the deadline. An insurance extension is a one-time extension that gives a Trademark applicant more time to fix possible defects in the original Trademark application. When you file an insurance extension there is opportunity to amend your packaging, websites, or other specimens required to meet the USPTO’s standards. Then re-file your Statement of Use. If the new Statement of Use filing meets the requirements, your Trademark application will proceed to registration. When the deadline to file the Statement of Use has passed, there are a few possibilities. After the Statement of Use deadline, Trademark applicants will no longer be able to change their products, their packaging, their website, or any other specimens to meet the USPTO requirements. In this type of situation, applicants will only be able to submit specimens that otherwise existed before the deadline for the Statement of Use filing. If an applicant runs out of time, the good news is that specimens might take many different forms. For example, for a Trademark application for services in which the applicant submitted a business card that did not identify the specific services properly, they will be able to submit their website or any other advertisements as a response to the Specimen Refusal. In the case of a Trademark application for a product in which the applicant submitted, for example, a website showing the features of the product but not the product itself, then the applicant will be able to file a photograph of the product or its packaging. Additionally, in some circumstances, an applicant may be allowed to submit a retail website that sells the product. Do not submit a false statement. Specimens can be tricky and often differ wildly based on the products and services included in an application. However, when no proper specimen, can be provided to respond to a Specimen Refusal then the only choice is to re-apply. In these circumstances, Trademark applicants typically ask: “how would the USPTO know when the specimen was used?” The answer is simple; the USPTO will not know. With the exception of extreme circumstances, the USPTO will generally not ask for evidence proving that the specimen was in use when the applicant claims it was. However, Trademark applicants are required to sing a sworn statement to the U.S. government that “the substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce prior to expiration of the filing deadline for a Statement of Use.” If this statement is false and an applicant knowingly signs it, then that applicant has committed fraud, and the Trademark application will be subject to cancelation, regardless of how much time has passed since the fraud transpired. If no proper response can be given to a Specimen Refusal, file a second Trademark application. When it comes to fixing a Trademark disaster, fast action is key. If any issue, such as a Specimen Refusal, arises during the registration process of a Trademark, applicants should strongly consider filing a new application as soon as possible in order to secure a new priority date. However, if an applicant does not respond quickly to an issue, it could result in a third party filing an application for a very similar Trademark, which could invalidate the second application of the applicant’s original Trademark. You must act fast! This is why the help of an experienced Trademark Attorney is crucial when facing Specimen Refusals or any other issues during the Trademark registration process.
1 – Choosing a Strong Mark Typically, your Trademark is the first interaction people have with your brand, which is why choosing a strong, recognizable name for your brand is crucial and should be done carefully from the very start. Trademarks are generally divided into four categories: - Descriptive Trademarks “describe” a service or product. - Suggestive Trademarks simply hint at the service or product being offered. - Arbitrary Trademarks are words or images that already exist but have nothing to do with the business that uses them and are not commonly related to the service or product being offered. - Fanciful Trademarks are invented words with absolutely no relation to the service or product being offered. Fanciful and Arbitrary Trademarks generally offer the highest level of protection against infringement. However, the downside is that these types of Trademarks often involve more advertising and marketing to attain customer recognition. On the other hand, Suggestive Trademarks describe some aspects of the products or services being offered. Still, they may be highly vulnerable to infringement. 2 – Executing a Comprehensive Trademark Search Once you choose your mark, implement a comprehensive Trademark search in order to determine if another business or individual is already using the Trademark you selected. It can be highly disappointing to find out that your mark may infringe on the Trademark of another business. If infringement has to happen, it is best that this occurs prior to investing money in product labels, signage, or anything else that displays the Trademark. Moving forward, to apply for Trademark registration without executing a comprehensive search could cost you significant amount of money and time in the near future. 3 – Registering Your Trademark with the USPTO After conducting a comprehensive Trademark search, the next step in protecting your Trademark from unauthorized use by others is to register with the United States Patent and Trademark Office (or USPTO). While simply using your Trademark for commerce may give you common law protections, those protections come with certain limitations. Although using your Trademark for commerce gives you legal rights to it, these rights are only local. This means your Trademark is not protected if someone in another state of the country decides to use it. Additionally, if you wish to expand to another area where another business or individual is already using the Trademark, you will lack protection and may even find yourself in legal trouble. Registering with the USPTO is the best way to get full Trademark protection all over the country. 4 – Policing Your Mark While the USPTO registers the Trademark, they do not enforce the exclusivity of its use – that is your responsibility. You must police your Trademark. The first step is using the ® symbol once your Trademark registration is complete. This gives public notice to other businesses and individuals that your Trademark is federally registered and protected. No matter where your Trademark is displayed, you must always include the symbol. The reality is that most people do not wish to infringe on your Trademark – using this symbol will save you and every potential accidental infringer unnecessary trouble. 5 – Registering Internationally Unfortunately, the Trademark protection rights you have in the United States do not apply to other countries. Trademarks are generally considered on a country-by-country basis, and a federal Trademark registration will not protect your Trademarks in disputes outside the U.S. If your Trademark reaches other countries, whether you manufacture products in China or in Mexico, consider protecting your Trademark internationally. 6 – Maintaining Your Trademark In the United States, your Trademark protections are only available as long as you continue to use your Trademarks for commerce. Using a Trademark inconsistently will weaken its protections, a disadvantage in the event of a Trademark dispute. Additionally, under the USPTO regulations, you will need to provide documentation showing continued use of your Trademark at the time of filing for renewals. 7 – Working with a Trademark Attorney When it comes to protecting a Trademark, the best strategy is working with an experienced Trademark Attorney. Many business owners and entrepreneurs take a do-it-yourself approach to business; however, this often leads to costly mistakes.