Entrepreneur and Business Startup Law Blog

Important Issues to Consider When Selecting a Trademark.

Trademark law can be somewhat complicated.  It is important that you do it right from the start, to avoid serious consequences later.

1. When selecting the term to use as a trademark and apply for trademark registration consider the following: 

 (a)  The mark set forth on the USPTO Trademark Registration Application must be the mark exactly as you will use it in commerce.

 (b)  Eventually, you will need to submit a specimen (e.g., brochure, etc.) to the USPTO that will evince your use of the mark in commerce, in association with the goods and/or services set forth in the application.  That specimen will need to reflect the mark exactly as set forth on the application (without any other terms immediately abutting the mark).

Thus, if you will use the mark "ABC XYZ Services Boston" and the specimen will reflect "ABC XYZ Services Boston", then the application should be for "ABC XYZ Services Boston" (i.e., a specimen reflecting "ABC XYZ Services Boston" will be unacceptable for an application for "ABC XYZ Services"). 

Note, for the services application, you may need to disclaim exclusive rights to "Boston" and "Services" because the former describes a geographical location and the latter is "merely descriptive." 

2. With regard to the particular name you have selected, e.g., "ABC XYZ Services Boston," consider also the following:

 (a)  the applicable licensing division that regulates your business, if applicable, may not allow you to use the terms "ABC XYZ" in the name of your business and/or the name of services; and

 (b)  the USPTO may deem the terms "ABC XYZ " to be merely descriptive.

Trademark law is not as straight-forward as most business people think.  If you don't get it right the first time, your application may be refused and that may result in someone else filing an application for the same mark, which may result in you being prohibited from using the mark in your industry. Obtain advice from an experienced trademark attorney as soon as possible, and secure trademark rights for your mark.

Want to discuss your issue with an experienced trademark attorney?  Click here for a free telephone consultation. 

 

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Who Drafted YOUR Contract?

Generic contracts may have an attractive price tag; however, they can prove to be very costly and can cause serious problems for businesses. Consider that general provisions can determine the enforceability or non-enforceability of a contract and the enforceability or non-enforceability of the remedies available to the parties. 

Some of the dangers that may lurk in general contracts are as follows:  you may be personally liable for the contract instead of benefiting from liability protection of the business entity; one seemingly innocuous phrase, can destroy liability protection; some contracts need several due dates and commencement dates and these can be easily overlooked or drafted poorly rendering it ineffective; and, if one clause is missing or poorly drafted, you may have to pay for “nothing.”

Want to discuss you business contract issues with an experienced Boston business lawyer or Maine business lawyer?  Click here for a free telephone consultation with Michelle L. Grenier, Esq., an experienced Boston business lawyer and Maine business lawyer.

 

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What do I need to do to start my business?

The most common question I hear from new clients is, "what do I need to do to start my business?"  Here is a summary of the most common tasks for new businesses:

1. Joint Venture Agreement: Enter a joint venture agreement for all founders, that describes the duties, responsibilities and expectations of each party.

2. Establish a Separate Entity.  Establish a corporation or limited liability company [LLC], to protect the personal assets of each owner of the business.

3. Open a separate bank account for the corporation or LLC and refrain from co-mingling personal funds with business funds.

4. Find out what licenses you will need for your project.

5. Make sure that your commercial lease protects your interests, not just the landlord's interests.

6. Find out if your preferred is available for use and registration and then register your trademarks with the USPTO.

7.  Make sure that your website is in compliance with proper terms of use, privacy policy, copyright notices, etc.

8. Require all those privy to trade secrets, execute a comprehensive nondisclosure and confidentiality agreement.

9. Require employees and independent contractors to enter into comprehensive agreements.

Want to discuss you legal issues with an experienced Boston Business Lawyer?  Click here for a free telephone consultation.

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Is your "trademark" really a trade name without trademark protection?

Are you using your term as a trade name or trademark?  The USPTO may find that the term for which you would like to obtain trademark registration, is used as a trade name and not a trademark.  The Trademark Act does not provide for registration of trade names.  For example, the name of a business or company is a trade name and the Trademark Act and the USPTO distinguishes trademarks from trade names.  A trademark is used to identify and distinguish the trademark owner’s products/goods from those sold or manufactured by others and to indicate the source of the products/goods.  As defined by the Trademark Act, the terms “trade name” and “commercial name” mean any name used by a person to identify its/her/his business or vocation.

Note, that use of the term in a stylized manner may help your argument that the term is used as a trademark (in addition to being used as a trade name). 

In addition, you will need to submit a Specimen evincing use of the mark in commerce, in association with the goods applied for.  With the specimen you will also be required to submit and certify the date of your first use in commerce of the mark and the Specimen.

Should you wish to discuss your business endeavor and corresponding legal issues with an experienced Business Lawyer, click here to schedule a free telephone consultation or contact Michelle L. Grenier, Esq. directly at 617-728-9800 or michelle@contactmylawyer.com

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So You Want to Start Your Own Business! Congratulations!

Congratulations!  Deciding to tackle such a endeavor is half the battle. Now for the other half of the battle. This article provides some helpful tips for starting a business. 

In addition to the basics, such as educating yourself in the field or industry of interest and creating a business plan, there are several legal issues that should be addressed when starting a business. 

• If there is more than one person starting the business, a well-drafted Joint Venture Agreement is essential for success and avoidance of misunderstandings.  Your Joint Venture Agreement should clearly set forth each participant's role, expectations, duties and responsibilities.  The JV Agreement should also set forth what will happen if a participant no longer complies with the JV Agreement, voluntariliy or involuntarily (e.g., disability or death).

 

• Next, establish a separate legal entity, such as a Limited Liability Company [LLC], to protect the personal assets of the participants from activities of the business.  Open a separate bank account for the LLC and make sure you do not co-mingle personal funds with LLC funds, as this is a means for dissolving the LLC protection. 

 

• All contracts should be entered into by the LLC and not you personally, to avoid personal liability.  In addition, you must sign all contracts in your capacity as a Manager or Officer of the LLC, e.g, "John Doe, as Manager of ABC, LLC," otherwise, you could be personally liable for the contract.

 

• If you have employees, make sure you have all employer posters required by the Federal and State government. Also, hiring a payroll service to do your payroll, may be a good idea.  Note, if only the owners are working for the LLC, you may not be required to run payroll.

 

• Register your Trademark to protect use of your mark by others.  Register the copyrights to your web site and other marketing material for the same reason.

 

• Make sure you have proper web site content, to reduce the risk of liability.

 

• Make sure you are in compliance with all laws, including, obtaining all applicable licenses and record keeping related to immigration law compliance. 

 

• Protect your business interests by utilizing comprehensive confidentiality agreements, non-circumvention agreements, non-compete agreements, employee agreement, independent contractor agreements, and other well drafted comprehensive agreements specific to your business.

Congratulations again; you are on your way! 

You will only pass this way once . . . do it right!

Ready to discuss your issues with a Boston Business Lawyer or Maine Business Lawyer? Click here to schedule a Free Telephone Consultation.

Starting a Service Business?

  The following is a basic checklist concerning legal tasks related starting a service business:

• Establish a corporation or Limited Liability Company. Obtain Federal ID number and all Corporate and LLC documents necessary to comply with applicable laws.  
• Apply for trademark registration.
• Obtain a license to operate the business, if applicable and research other requirments and limitations that may apply.
• Enter into commercial lease after having lease reviewed by an attorney. 
• Enter into comprehensive Client/Customer Agreements for services. 

You may also find the information on the following link helpful:

Protect your personal assets.

If you are ready to GET THE BALL ROLLING, schedule a Free Telephone Consultation with an Experienced Boston Business Lawyer / Maine Business Lawyer today.

(Misspellings:  Boston Business Laywer , Maine Business Laywer)

Starting a Business is like Building a Home

 

     Before starting a business, obtain advice from professionals and consider this thought-provoking analogy. 

     Building a business is like building a home.  You would not use drywall to support a home, because , amongst other things, it would not survive the elements (rain, storm, etc.) and such would result in a loss of substantial investment.  Similarly, with your startup, contracts are support beams for businesses.  If you don't utilize solid comprehensive business contracts, your business investment will be at substantial risk.

     In addition, proper entity establishment and maintenance is the "foundation" of a business, just as cement is typically the foundation of a home.  You would not invest in a home that lacks a proper foundation.  Consider the risks involved in investing in a business that lacks a proper entity foundation and/or fails to properly maintain such entity.

     Furthermore, if you must "skimp" with regard to the home, skimping on the decor is less risky than skimping on the foundation or the supporting structure.  In a business, if you must skimp, then skimp on the something other than the establishment or maintenance of the entity or the supporting contracts.

    Moreover, it is important for Homeowners to protect their property.  So too is it important for businesses to effectively protect the intellectual and proprietary property of the business, for example, Trademark Registration, Copyright Registration, Copyright Notices, Patent Registration, proper methods and efforts to maintain Trade Secret protection, etc. 

    Finally, to successfully build a home, a general contractor typically works with a team of experts, e.g., the architect, engineer, cement contractor, window specialist, painters, zoning attorney, etc.  New businesses should also bring together a team of experts, e.g., legal, tax, etc.

Knowledge + Informed Decisions + Proper Implementation =  Business Success

Ready to GET THE BALL ROLLING? Schedule a Free Telephone Consultation with an Experienced Boston Business Lawyer or Maine Business Lawyer today.