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PLAN FOR THE FUTURE

Make your own choices about what will happen to your property should something unexpected happen to you. Creating an estate plan is essential to ensure that you direct what happens to your care and your estate, rather than allowing the state to make determinations about your property in the absence of your own wealth plan.

Why We Don’t Recommend Drafting Your Own Will

There is nothing more stressful for family members than finding that a previously drafted will is not valid, and that the estate property transfer must be determined by the the Court. Some of the reasons wills are invalid include failure to validate properly, failure to meet current state legal requirements, and failure to include new property in the will.

We Help You Choose the Right Legal Instruments to Protect Your Legacy

Planning a personalized meeting with you helps ensure that we know what your needs are so we can help you achieve the goals you have in mind. Protecting your estate may include drafting a will, trust, health directive, and other tools to create a plan that aligns with your goals.

Call Behrends Legal today!

970-578-9455

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PROTECT YOUR BRAND

You have spent significant time building your business; don’t let the name and face of your business go unprotected by failing to register your trademark and tradename. Filing your company trademark with your state is a fairly simple process in most cases, whereas filing your trademark federally with the USPTO is more involved. We are here to make this part of your brand building easy for you. We file your trademark for you so can carry on with the business of running your company, and knowing your brand is protected!

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PURSUE GROWTH

More than ever before, tradenames and trademarks are your business identity in the global market. Your business name ensures that potential investors and clients are choosing a product of quality; your product! Choosing a tradename is thoughtful process that helps reflect your vision for the product/service, and your commitment to maintaining quality. We welcome international brands at Behrends Legal law firm, and we are excited to help you file a U.S. Trademark, or an International Trademark. Please reach out to us for more information on filing your international brand in the U.S and abroad.

You may be a U.S. based company seeking to file an international trademark in other countries. We are here to help you! The trademark filing process depends on which country you are filing in, and for many European countries, only one filing may be needed. Contact us to share your goals, and we’ll help you create a plan to file the Trademark registrations you need!

What Should Be In a Company Privacy Policy?

As you evaluate your compliance with newly- added state policies, it can be helpful to think of your privacy plan of operation as having two sides. The front-facing side of your company with a highly visible policy for your clients through your website, and the behind-the-scenes side of your company where your unique company policies provide a structure for privacy protection. Under the recent changes within the wording of the law, your privacy policy should aim to be highly transparent to visitors to your website.

Companies are required by the Colorado Privacy Act, along with other state and international laws, to notify individuals when the business is collecting and/or storing sensitive information about them. Sensitive information includes personal data that may include names, personal identification numbers, racial/ethnic origin, religion, physical health conditions, biometric information and any other information used to uniquely identify an individual. When drafting a privacy policy, the following information must be included in the company website notice:

The categories of personal data you may collect;
The purpose for this collection of personal data;
The reason collected data may be shared with third parties;
The information that may be shared with third parties.

Your policy should also provide a contact pathway for your website visitors to exercise their rights with regard to personal identifying information, most commonly an email contact, or phone number.

Building the privacy policy of your company should involve creating a plan that is unique to your particular industry. What is appropriate for your business and what is appropriate for another business may very different from each other.

Follow our series for more information about how your company or organization may be impacted by recent changes in the legislative language of both state and international law.

Reach out to Behrends Legal for a review of your privacy policy and an assessment of your company’s compliance with Colorado law.

Why Your Privacy Policy is an Essential Element of Your Business

The protection of personal identifying information has grown in importance in the eyes of legislators over the last 10 years due to an increase in e-commerce, and the global shift in recent years towards company platforms that operate online almost entirely. Acquiring personal information through malintent has become prevalent and presents a significant issue in the field of privacy management. At times, private citizens’ financial and personal reputations have been destroyed by the damage caused by identify theft and misuse. In years past, it was advisable for companies to post Privacy notices to their website to comply the State of California (CalOPPA), and Cookie Tracking Consent notices to comply with the GDPR enforced by the EU. Companies now find that a strong privacy policy notice and policy enforcement is not only advisable, but essential to comply with individual state laws. Colorado, for example, adopted the Colorado Privacy Act (CPA) which comes into effect July 1, 2023. It is expected that every state across the nation will be adopting similar laws.

The language of the CPA affects companies who operate in Colorado, or collect and organize important information of residents within the state of Colorado. Colorado has taken a proactive role in protecting individual privacy through the adoption of state law. In the last ten years, Colorado invested in assembling a series of legislative privacy protections through the information security law, document disposal law, data breach notification law, and the newly adopted Colorado Privacy Act, which enters into the Colorado statutes on July 1, 2023. While the new legislation mainly targets companies that collect the information of 100,000 Colorado residents or more, it is commendable to have privacy policies in place before reaching the numerical threshold. The primary aim of the CPA is to hold companies to accountability for the protection of sensitive information that they process and store, and to provide greater transparency and increased communication to consumers whose personal data has become a valuable modern commodity.

To comply with the CPA, companies should prepare privacy policies with a focus on key language that emphasizes a request for consent tracking, language that clearly and concisely explains the information collected by the company, language that outlines how the personal data is shared, and language that directs clients to a contact pathway allowing them to request information from the company about how their information is used. When entities implement security procedures and legal compliance with state law, these measures form a protective structure that results in clear and conspicuous communication with the client, and strong internal operations that support a secure network infrastructure within the organization.

Follow our series for more information about how your company or organization may be impacted by recent changes in the legislative language of both state and international law.

Reach out to Behrends Legal for a review of your privacy policy and an assessment of your company’s compliance with Colorado and related law.

New Year Company Wellness Check

As we enter a new year, many of us are making personal new year resolutions, but this is also a good time to evaluate the state of your company. While the new year is full of potential for your company, now is a key moment to conduct a wellness check of your company’s health. Maintaining the future of your business requires more than building a reputation of honesty and integrity, or offering quality services and products, it also requires maintaining “back-office” health as well. Taking a broad-view look at the following key areas can ensure you are protecting your business, and set up for the duration.

Risk Management Evaluation

It seems that insurance policy changes occur more frequently these days, and it is important to make sure that your company has adequate coverage as your company expands. Conversely, it is crucial to make sure that your own company employee, safety, and security policies and procedures comply with your insurance requirements. Sometimes this involves adding new policy language, and sometimes it involves a simple review of your insurance to verify your company’s compliance.

Corporate Governance Compliance

The new year is an excellent time to track any registration deadlines, or corporate document filing dates that will be due the coming year. Whether you use a paper binder to store your corporate documents, or store your documents digitally, it is important to ensure you have updated, or have set deadlines to update business registrations, record annual meeting minutes, and file annual reports. This is an excellent time to review your financial records to gain a clear perspective on your financial standing, and set goals and forecasts for this coming year.

HR Assessment

As you look to the new year, it may be wise to assess your employee work environment. Establishing a healthy work environment starts with your employee policies, and manuals or handbooks. Make sure your handbooks reflect recent state and federal laws regarding employee sick and family leave, and review them with your employees. Evaluating your current company environment can be helpful as you determine changes that need to be made to support the company culture you are striving for.

Taking the time to look over your business as a whole can lead you to a healthy assessment of your company risks, corporate governance compliance, and employee support; all of which will set your business on the track for a year of growth and renewed purpose.

What Does Brexit mean for Trademark Owners?

Sorting through the implications of the UK exit of their membership to the European Union (EU), has been especially concerning for those with Intellectual Property ownership rights under EU laws. What does Brexit mean for EU Trademark owners, and how does Brexit affect Trademark applicants now? Trademark registration concerns will depend on whether a Trademark application has already been filed with the EU Trademark Office, or will be filed in the future (after Dec 2020).

Pending Applications

The UK worked to create a transition standard for current Trademark owners to assure continuity of law, and Trademark protection. As such, they adopted regulation stating that current EU Trademarks will be replicated under UK law as well, and will receive the same recognition of rights and priority of ownership by the UK as was granted by the EUIPO.

Additionally, if a Trademark application was pending approval by the EUIPO as of December 31, 2020, applications to the EUIPO will now include the existing EU member states, and exclude the UK, however, applicants can file an identical application with the UKIPO for the same categories and will be permitted to back-date their applications to the date used on the EU application.

Although the EU Trademark application no longer includes UK registration, the UK will honor currently registered EU Trademarks.

New Applications

Trademark renewal applications will need to be filed with the EU and UK IPO’s in order to receive continued protection under both governing Trademark IPO’s.

Looking Forward

Though Brexit may have prompted a period of uncertainty for Trademark owners registered with the EU, they should keep the following in mind as they consider future business and trade opportunities in Europe:

Trading in the UK will not qualify, at this time, as trading in the EU from the EU’s Court of Justice perspective. Trade must occur intentionally in the UK and the EU to show use of commerce in both regions.
EU Trademark applications no longer include usage and protection in the UK.
The UK will honor Trademarks currently registered as an EU Trademark.
Although the UK will honor existing EU case law and court decisions, it will initiate the process of legislating its own laws on Intellectual Property and especially Trademarks. Following UK Intellectual Property laws and developments should remain a priority for Trademark holders.

Please contact Behrends Legal with your International Trademark Registration questions!

What You Need to Know About The Trademark Modernization Act

The most recent addition to intellectual property federal law, the Trademark Modernization Act of 2020, will directly affect Trademark owners and applicants. The USPTO is acutely aware of the rise in recent years of Trademark applications in general, and has noted the increase in spurious Trademark applications by applicant entities that are false, or difficult to identify, often filed by applicants outside the U.S. Though the new Act increases application fees, it also aims to provide current Trademark owners with greater levity in protecting the marks they have registered.

What Does The New Trademark Act Mean for Trademark Owners?

Affirm Your Own Use

To ensure the best protection of your own Trademark, your use of your registered Trademark should align with the goods or services listed on your registration. Should a proceeding ever be brought against the validity of your Trademark, you should have a record of use of the Trademark in connection with the operations and goods and services stated on your Trademark registration certificate.

Monitor Your Trademark

While this step was recommended prior to the adoption of the new Act, the importance of monitoring your Trademark has risen significantly due to the increase in potentially infringing applications. Opposing a Trademark application was previously permitted only after the new application was approved for publication in the Trademark Official Gazette, which would coincide with the permitted opposition period of 30 days. The new Act now provides that a 3^rd party opposition (by current Trademark owner) may be filed with supporting evidence, prior to the publication period. The ability to oppose a mark prior to publication has potential to save litigation costs at a later stage, however, alternatively it will may also increase the hurdles new applicants face when filing a new trademark application.

You should have a record of use of the trademark in connection with the operations, goods and services listed on your Trademark Registration certificate.

A Strengthened Claim

Specifically, the Act provides Trademark owners who file a claim, with a presumption of irreparable harm if a likelihood of success on the merits is found by the Court – placing the burden on the trademark applicant to prove that their trademark will not infringe on the existing Trademark. While a claim of irreparable harm can be challenged, the new law strengthens the position of the Trademark owner claimant. While this aspect of the new Law may help relieve the excessive filing of Trademark applications by false entities, it can potentially place a higher burden of proof on Trademark applicants defending legitimate Trademark applications.

Your Trademark is a business investment that adds value to your operations and your brand reputation – Behrends Legal can advise you regarding your Trademark registration and protection options.

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

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:

Showing that TM is being used in association with the sale of a good/service.
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 .

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.