Make Sure Your Brand Name Isn’t a Liability

What is Liability by Trademark Dilution?

One of the strongest reasons to research your potential Trademark name is to avoid the possibility of trademark litigation by way of Trademark Dilution. Trademark Courts are primarily concerned with whether a trademark name causes the public to be confused as to the source of the goods. When the simultaneous use of a similar or same Tradename, or symbol creates confusion with a famous Trademark brand in the minds of consumers, then dilution is likely to be found. One of the supporting arguments for dilution protection is that some trademark brands have become so famous that they deserve a unique level of protection than the standard Trademark registration.         

What is Needed to Prove Dilution?

The Trademark owner claiming infringement must prove that their tradename is famous, or instantly recognizable by the public. Whether this is a certain creator of expansively used electronic tablets or smart phones, or a well-known coffee available in most cities across the U.S., most of us can easily think of a few brand names that we would know anywhere whether we see the logo, or the brand name. These are famous marks. If a mark is established as a famous trademark, or brand, then the owner must prove there is a likelihood of dilution that may occur by another’s use of the same trademark name or symbol.

Forms of Trademark Dilution

Freeriding: When an entity intentionally uses another trademark name or symbol to mislead consumers, and benefit from the fame and good will of the established mark.

Blurring: This form of dilution occurs when a third party uses a famous mark or name on a product that is entirely unrelated to the goods associated with the original trademark owner’s name. For example, using the name ‘Xerox’ as a brand name for clothing. This type of use weakens the distinctiveness that the original trademark name and product is known for.

Tarnishment: Occurs when a trademark name is used inappropriately, or in a way that may be offensive to the trademark owner’s policies. Free speech and fair use considerations often arise when tarnishment claims are filed.

Call Behrends Legal today to file your Trademark application, and to provide guidance with your Trademark name choice. info@behrendslegal.com .

*This article is not intended to be construed as legal advice, and does not constitute the creation of an attorney-client relationship. Prior to making any significant decisions related to its content, you should seek the counsel of a licensed lawyer for your state.

Mistakes Trademark Owners Make: Failure to Research the Trademark

Why Does Research Matter?

One of the most common misperceptions regarding Trademarks is that anyone can obtain any Trademark name, logo, or phrase. This may seem to be the case especially as State Trademark Filing is usually a simple process that may not involve an extensive tradename and category search like the Federal registration process.

  • Filing for a Federal Trademark is always recommended as businesses often grow quickly, and the modern-day reality of selling products online, and shipping across state lines is likely the goal for your growing business, in the future if not immediately.
  • As US trade relations increase in the coming years, it will be crucial that you do not delay owning the claim to your business name.

Researching your potential Trademark prior to using it is a valuable financial investment, and can save yourself significant headaches later should a name or logo change be required.

Protect Yourself from Infringing on Others

One of the key reasons to do your research thoroughly before claiming and using a trademark name, is to protect yourself from infringing on others’ prior ownership of a name or logo. The US legal system gives priority of rights to Trademark Owners who have filed for registration of their Trademarks with the USPTO, but also provides some common-law legal protections, in some cases, to name owners who can prove long-term use of a name in association with the products they sell. It is better to know, before you use a name, if it is already being used and whether any exceptions to use might be available.

Hiring an Attorney v. Using Discount Legal Services

Why hire an attorney when there are discount legal services available? This is a legitimate question, and a common inquiry for new business owners who are launching their companies while often being budget-conscious during the start-up phase. New business owners should be mindful that the discount services often fail to provide key pieces of the trademark registration process that help ensure your Tradename or logo has a stronger chance of being approved by the USPTO. Discount services often do not provide an thorough search and analysis of your trademark in comparison to existing trademarks to verify that your mark has fair chance at approval. When hiring a lawyer to file your Trademark Registration, you should be receiving the option for a professional search of your tradename, an assessment of whether your tradename is a strong name, or is likely to be challenged by the USPTO, and the expertise of an experienced and knowledgeable lawyer who can guide you through the Trademark Search and Registration process.

Contact Behrends Legal today with your Trademark Registration Questions! info@behrendslegal.com

*This article is not intended to be construed as legal advice, and does not constitute the creation of an attorney-client relationship. Prior to making any significant decisions related to its content, you should seek the counsel of a licensed lawyer.

Avoid Making This Mistake as a Trademark Owner

Obtaining a certificate of Trademark Registration may seem like the final step in earning the rights to a Trademark, yet owners should be aware of potential assumptions that can be costly. The responsibilities of owning a trademark include:

  1. Showing that TM is being used in association with the sale of a good/service.
  2. Demonstrating that the goods/services are sold in the ordinary course of business.

The reasoning behind this rule is that Trademark law is primarily concerned with whether the Trademark identifies the source of the goods. If the mark is not used regularly in association with the goods or services, the Trademark fails to meet the Use test.  

So, what qualifies as “using” the mark? This may include intentionally making the mark visible on packaging, on hang tags, a website, and on signs advertising your brand. The key is to make the trademark name visible, and always do so in connection with the goods and services with which the trademark name is registered.

What Does Not Qualify as “Use”?

Unlawful use – The trademark must be used in association with a legal product/service.

Token Use” not enough – A token sale of one item, or a set of items at a very low cost does not qualify as “use in commerce”.  Although token use was previously accepted by Trademark regulation, updated regulations after 1989 no longer accept token use as a viable demonstration of use in commerce.  

The key is to make the trademark name visible, and always do so in connection with the goods and services with which the trademark name is registered.

Abandonment – Should a Trademark owner fail to use the Trademark in commerce, and fail to renew the trademark, the USPTO may label the mark as abandoned. An abandoned mark can then be claimed by a new owner.

Call Behrends Legal today to file your Trademark application, and to help you with your Trademark maintenance questions. info@behrendslegal.com .

*This article is not intended to be construed as legal advice, and does not constitute the creation of an attorney-client relationship. Prior to making any significant decisions related to its content, you should seek the counsel of a licensed lawyer for your state.

Understanding the Validity of a Will

Ensuring that a loved-one’s wishes can be honored by a Will involves ensuring that the Will meets certain requirements and stands the best chance of being affirmed as a valid Will by the Probate Court. Knowing which type of Will to use is the best starting place.

Holographic Will: A handwritten will. While this type of Will can be valid in Colorado if certain conditions are met, it can also present a lot of issues upon filing with the Probate Court. The main issue being whether the Will should be authenticated as a valid Will, and the wishes honored. If it is not found to be valid, then the Court applies Statutory Intestate laws as if no will was written.

Verbal Wills / Noncupative Wills: This is essentially a verbal will that is spoken aloud from the creator to witnesses, and written down immediately by the witnesses. Although verbal wills are recognized by some states in limited circumstances, they are not recognized as a valid Will in Colorado.

Formal Will: This type of Will is typewritten, signed, and observed by witnesses. This format is the most likely to succeed authentication by the Court during the probate process. Each state is governed by its own probate laws, however, in Colorado a valid will should be signed by a person of sound mind, and witnessed by two witnesses over the age of 18 years old.  

Pour Over Will: This is similar to a Formal Will, yet it designed to work in conjunction with an Estate Trust, and “pours over” any remaining assets that have not already been transferred to the Trust. Drafters should be aware that the Pour Over Will must go through the probate Court process just as does a Formal Will.

This is a very brief summary of various types of Wills, when the reality is that each person’s situation is unique, and consulting a law firm is strongly recommended to ensure that your loved one’s wishes are properly documented, and carried out. Please reach out to Behrends Legal with questions regarding Estate Planning needs. (970) 578-9455.

What Is The Role of a Personal Representative in a Probate Case?

Finding oneself as a designated Personal Representative by a loved one’s Last Will & Testament can be an unanticipated discovery. Though it is a good practice to discuss these matters with loved ones before naming them in a Will, those conversations do not always occur in time to prepare the person named in the Will. What are the responsibilities of a designated Personal Representative? What if the designee does not wish, or is unable, to be the Personal Representative? What does the Court require of a Personal Representative?

Often a spouse or family member is designated as a Personal Representative, however, the author of the Will may designate a friend, family member, or legal advisor as a Personal Representative. The investment of authority in the Personal Representative does not occur automatically at the time of death, however. Once the Last Will & Testament has been submitted to the Probate Court, the Personal Representative must request that Court authenticate the Will (verify it is valid), and Appoint the designated person as Personal Representative. Only after the Court formally appoints the Personal Representative can he/she begin to act on the behalf of the Decedent to close the Decedent’s estate within the guidelines of the Probate laws.  

What if the Personal Representative Does Not Wish/Is Unable to fulfill the role of Personal Representative?

There may a number of reasons for someone to refuse appointment as Personal Representative. Wills often name an alternative Personal Representative in case this situation arises. If this is the case, the designated representative can petition the Court to appoint a successor Personal Representative named by the Will, or recommend another person to fulfill the role of Personal Representative for the Deceased’s Estate.

What are the Duties of the Personal Representative?

As a Personal Representative of a loved-one’s estate, the Personal Representative accepts the fiduciary duties associated with this role which include managing the estate funds and assets responsibly and according to the Decedent’s wishes. Though Probate laws are unique to each state, the Personal Representative’s duties generally include, but are not limited to, locating the estate assets, notifying creditors, estimating estate taxes, and paying final estate expenses.

This is a condensed version of the Probate process, and managing this process is less intimidating with the guidance of a law firm that is familiar with the process, and ready to provide answers to the questions that are unique to each family estate. Please feel free to reach out to Behrends Legal to find out more about how we can help with the Probate process.

*This article is not intended to be construed as legal advice, and does not constitute the creation of an attorney-client relationship. Prior to making any significant decisions related to its content, you should seek the counsel of a licensed lawyer for your state.

What Is The Probate Process?

Implementing the Last Will and Testament of a loved one after they have passed away can bring about a host of questions, and unexpected steps. This post provides a very basic guide to the Probate process, however, we highly recommend speaking to an estate planning lawyer as each probate matter is truly unique.

What is the Probate Process?

Though the Probate Laws of each state vary, the objective of the process is to authenticate the Last Will & Testament of the deceased, and to provide statutory parameters for distributing and closing the estate if the Will is found to be invalid.

Why is the Probate Process Necessary?

Similar to the designation of a manager when an Estate Trust is created, a Last Will designates a Personal Representative to carry out the wishes of the deceased regarding property, and financial decisions. A Will is distinguished from an Estate Trust in that when the deceased leaves a Will, the deceased’s estate must be closed, and all financial matters settled to end all interests and obligations of the deceased’s estate. In contrast, when the deceased has previously created an Estate Trust, the Trust becomes an entity that survives beyond the death of the creator, and continues to be managed by a person of the creator’s choosing.

What is Involved in the Probate Process?

It is important to know the specific Probate laws in the state where the deceased resided, however, the Probate process generally includes the Appointment of a Personal Representative. This is usually a person named in the Will, however, if that person does not wish to be the Personal Representative, the Law allows for the appointment of alternative representative. Once the Personal Representative is appointed, they are required to settle the estate by completing tasks such as identifying the assets of the estate, gathering information on creditors of the estate, notifying interested parties or beneficiaries, and calculating any taxes owed by the estate. Finally, the Personal Representative distributes any assets or funds of the estate and will request the Probate Court close the Probate process for that estate.

Each estate is unique and an estate planning lawyer can provide helpful guidance specific to your situation. If you, or a loved one, need assistance preparing a will, or preparing to open a Probate Matter, please reach out to Behrends Legal for a consultation to find out how we can help. info@behrendslegal.com , or 970-578-9455.

*This article is not intended to be construed as legal advice, and does not constitute the creation of an attorney-client relationship. Prior to making any significant decisions related to its content, you should seek the counsel of a licensed lawyer for your state.

Minuscule Symbols With a Sizable Message

In a society where both new and long-standing brand names and products are available, consumers are accustomed to seeing the tiny symbols used in to the upper-right of a product name to indicate a protected name, logo, or tagline, and yet it can be unclear as to what each of the marks truly indicate.

® – The encircled R is reserved for those names, products, and taglines that have a bona fide Trademark Registration. While use of this symbol is not required by law, this symbol communicates to the public that the mark, and goods/services associated with it, are protected and that the owner has a legal foundation on which to bring a claim against infringers of the mark. Placing the circle R to the upper-right of a Trademark is a simple way of communicating to the public “Have Trademark, will sue”.  

™ – While it is common to see this symbol, it is not restricted to use by owners of a registered Trademark. This symbol can be used without any federal registration, yet by the same token, the symbol indicates no federal legal protections to enforce against infringement. Those who might consider using this symbol may include applicants of a Trademark registration that is pending, and has not yet been approved.

© – This symbol does not apply to Trademark protection at all, but is instead used to indicate Copyright protection. Although not required to be shown on work titles, it is always a good idea to give notice that the work is under Copyright protection, and that the owner can take action against violations of the copyright.

Behrends Legal is ready to help you determine which mark you should be using with your work and your brand, and to file your Trademark Application to ensure your brand has all the rights it deserves!

970-578-9455

Office@behrendslegal.com

Should Your Trademark Have a Price Tag?

Why are Trademarks Valuable?

Your Trademark is the brand identity of your business, products, and services. Your customers begin to associate your Trademark with the level of quality you offer to your customers, and the reputation you have worked steadily to build. Though at Behrends Legal, we recommend filing for a Trademark as early as a possible, your brand reputation may take years to grow, and is an investment of itself. When it comes time to merge, sell, or agree to license the brand you have built, your Trademark encompasses all that you have built into your business reputation, – symbolically, and financially.

How Do I Know What My Trademark is Worth?

Estimating the value of your Trademark can be somewhat tricky as with all intellectual property valuations. Putting a price on the future earning potential of your business brand is a complex process based on estimations, and partially, on the summation of both the past and present financial standing of the business. Because selling a Trademark as an individual asset of the company has become a common business practice, a few approaches have been formed to help guide the valuation approach.

  1. Cost Valuation: the amount of financial investment that would be needed to replace the Trademark with a new one. This approach ultimately produces a valuation price based the popularity of the brand.
  2. Market Valuation: with this approach, the value of the Trademark is estimated by comparing the Trademark with other companies that produce similar products and services as the business being evaluated.
  3. Income Valuation: this approach is based on the cash flow trends of the business throughout the life of the Trademark and brand usage. Trademark valuation is often bundled together with other licensing rights in the business transaction.

Understanding that your business Trademark is a valuable asset as you prepare to sell, or license your Trademark, is essential to maximize on the reputation of the brand you have built, and the investment you have made.

Call us today at Behrends Legal to get started on your Trademark Registration!

(970) 578-9455

info@behrendslegal.com

Small Business Series #5: Why Should You Have an Exit Strategy?

Planning a policy to close your business may seem counter-productive to the effort you invest in maintaining the life of your small business, however, creating an Exit Strategy may be one of the smartest decisions you make, and you will thank yourself later for planning ahead. Creating an exit strategy does not necessarily mean you are planning to hang the “Closed” sign on your doors, and shut down permanently. Often, an exit plan is designed to set your business on course to sell to a buyer, pass on to family, or alleviate management stress from your own shoulders while maintaining the vibrancy of your business.

Keep Your Goals In Mind

Before you draft your exit strategy, envision your goals for yourself, and your business. Planning now creates more leverage for you, as the business owner, in how you wish to shift control of the business, and to keep your business in optimal condition for transfer. Consider the following:

  • How involved do you wish to be after the transfer of the business? If you prefer a clean break, or complete relief of your obligations to the company at the time of transfer, then selling to a competitor, or another buyer may be a good option. Conversely, if you wish to remain involved in the business after transfer, you may consider transferring to a family member, or employees to retain some control of the process.
  • Keep in mind your target buyer as you prepare to sell or transfer your business. Would you like to see your business retain the same, or similar identity and business functionality? You may want to keep employees or other small companies in mind as buyers. Selling to a larger, commercial company may have intentions to incorporate your business into their corporate identity, however, it may also ultimately be more profitable for you when you are ready to sell.

Prepare For the Essential Steps

Part of your Exit Strategy should include the steps you will need to take as you approach the transfer, or sale of your business. Exit Strategy steps generally include valuation of your business by an accountant, bringing your accounts as current as possible by collecting accounts receivable, and paying off business debt, and maintaining records as well as possible. It is helpful to hire an accountant, and a small business lawyer, to help you meet these goals. Additional preparation may include a plan for how you will delegate other responsibilities you take care of, and how you will notify employees and customers of your business transition to a new owner.

Whether you need a plan for implementation now, or much later, writing your Exit Strategy will give you piece of mind, and create a plan for your business to transfer to ownership on your own terms.   

Call Behrends Legal today for more information! (970) 578-9455, or info@behrendslegal.com.

Small Business Series #4: Work Place Policies

Your Work Policies Can Determine Whether Your Businesses Helps Employees Strain or Thrive           

Company policies allow business owners to communicate clearly with employees from the outset. When companies encapsulate business policies in employee handbooks, regular training, and policy updates, the potential for creating a positive internal work environment is based on clear expectations. Internal policies hold accountable both the business leadership, and the employees,  and well-written and implemented policies can also increase productivity and reduce confusion.

            Your business, in particular, may benefit from implementation of certain policies, and we recommend consulting a small business law firm that can address the unique needs of your business. In general, some of the following policies are worth considering as part of your internal operations and best practices.

Technology & Equipment Policies: These policies vary widely, and depend on whether your employees receive business calls, email, and other communication through company phones, devices, laptops, and other equipment. Whether you purchase technology for your employees, or reimburse them for technology fees, or whether there is a clear dividing line between company and personal-use technology, the usage expectations should be clearly defined.

A few primary considerations for companies in relation to technology can range from social media posting, confidentiality protection, time management, company email, care and return of technology equipment, and intellectual property protection.

Attendance Policies: Although attendance policies may seem standard for any business today, working remotely, or traveling for work creates new work scenarios that may blur the lines, or assumptions, regarding acceptable attendance expectations. Attendance policies should be updated often as your business evolves, and your employee needs change. Attendance policies can range from traditional expectations regarding work hours, and tardiness, to scheduling vacation time, and paid time-off, but may also include policies for remote meeting attendance, dress code, and time tracking policies.

Work Environment Policies: As the business owner, your vision for the internal environment you want to create is up to you. Defining the values your business operates by is crucial to the internal health of your company and those who put in the hours to continue to build your company. Reinforcement of values that ensure all employees are appreciated and valued is based on policies such as non-tolerance for discrimination of capability, race, gender, religious, and political beliefs.   

Your business is set to thrive or diminish based on the foundations you lay now. Set your business up for success and growth while creating a positive internal work environment, and fostering an inviting work community with your employees.

Behrends Legal is ready to support you as you build your business policies! Call today (970) 578-9455, or rachel@behrendslegal.com.