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What to Do if Someone Uses Your Trademark Without Permission

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protecting business trademarks

Your company’s name, logo, tagline, and other marks are the heart and soul of your business identity. They set your brand apart from the competition, becoming more recognizable as your reputation and business grows. Discovering someone is using your marks or elements that appear confusingly similar to them can be surprising and upsetting. Rather than directly contacting the entity or individual you believe to be infringing on your trademark, it is recommended to follow a more systematic protocol.

Is it Trademark Infringement?

First, you need to determine whether your trademark rights are truly being violated from a legal standpoint. While common law does provide some rights for unregistered trademarks, having a federally registered trademark with the United States Patent and Trademark Office (USPTO) adds stronger legal ground and protection in an infringement claim. Even for small businesses, there are many reasons to register trademarks, including national protection, incontestability, and the ability to use the ® symbol to prevent any argument of innocent infringement.

The USPTO defines trademark infringement as “the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.” Aside from ownership and seniority, the plaintiff in a trademark infringement claim must prove the defendant’s mark is likely to cause confusion.

For example, a company named ABC Transportation would have difficulty bringing a successful trademark infringement lawsuit against a laundromat named ABC Laundry since the two companies operate in very different industries. If a company were to name itself ABC Transit, on the other hand, then ABC Transportation might have a valid claim of trademark infringement. Location also factors into the likelihood of confusion. In the case of two similarly named local coffee shops in California and Ohio, neither would be able to bring a successful infringement claim, because customers in the two locations would not confusedly wander into the other shop thousands of miles away based on a competitor’s use of a trademark in another part of the country.

It’s important to understand that a mark or name does not necessarily need to be identical in order for there to be confusion among consumers. Courts will consider the degree of similarity and, as in the previous example, whether the goods or services between the plaintiff and defendant are sufficiently related. Advertising use, intent, range of prospective purchases, and other facts might also be considered by a court.

Hire a Trademark Attorney

If you believe you have a valid claim for trademark infringement, do not try to take the matter into your own hands. Contact a business law firm, such as San Diego business attorneys – Gehres Law Group, P.C., with experienced trademark attorneys on staff. Despite initial perceptions, trademark infringement can be highly complex and requires knowledge of the process and prior precedent. Skilled attorneys will consult with you to determine whether you indeed have a viable claim for trademark infringement and your likelihood of success on the merits. Should you have a viable claim, trademark attorneys will protect your interests aggressively.

Cease-and-Desist Letter

Most people do not jump straight to filing a lawsuit for trademark infringement, primarily because the time and costs associated with litigation can be substantial. More often, a cease-and-desist letter is used as both a deterrent and a warning. The cease-and-desist letter demands to the infringer that they remove the trademark(s) immediately or be subject to a lawsuit. While the message must be explicit, the language should be worded carefully to encourage compliance and adhere to the facts and established law. Keep in mind it is quite possible the infringer is unaware your trademark exists. When that is the case, a cease-and-desist letter is often effective in resolving the infringement.

Alternative Dispute Resolution (ADR)

If a cease-and-desist letter is ignored or contested, there still might be a less expensive and less labor-intensive means of protecting your trademark than filing a lawsuit. Alternative dispute resolution (ADR), such as arbitration or mediation, can be very effective in trademark disputes.

In mediation, a neutral third party facilitates a discussion—and, ideally, a mutually agreeable resolution—between disputants. Mediation can sometimes take as little as a few hours, and also provides more confidentiality than going to court. Learn more about mediation in this article.

Trademark Lawsuit and Litigation

If mediation is not successful or not desired in a specific case, the final step is to file a trademark infringement lawsuit in federal or state court and proceed with litigation. Most trademark owners choose to file for federal infringement because their trademark is filed with the USPTO, a federal agency.

As a recap of the criteria discussed at the beginning of this article, a trademark owner must prove the following in order to support a trademark infringement claim in court:

  • The trademark has been registered.
  • The defendant is using the trademark or a similar mark.
  • The defendant’s use causes confusion between the two companies.

The USPTO lists the following available remedies for a successful trademark infringement claim:

  • a court order (injunction) that the defendant stop using the accused mark;
  • an order requiring the destruction or forfeiture of infringing articles;
  • monetary relief, including defendant’s profits, any damages sustained by the plaintiff, and the costs of the action; and
  • an order that the defendant, in certain cases, pay the plaintiffs’ attorneys’ fees.

If you have any questions about registering a trademark and/or pursuing an infringement claim, seek out the professionals. In San Diego, there’s Gehres Law Group, P.C., whose attorneys have extensive experience in consulting and litigating in all areas of trademark and intellectual property law.

Legal

Brexit Unknown Makes UK Businesses Nervous

Brexit and the markets

Brexit and the marketsBrexit is certainly making businesses nervous right now, and there are many reasons for that. Despite almost three years having passed since the original vote, things are no clearer as to what the impact will be on business or what kind of trading relationships the UK will have with the EU going forward. Therefore, some nervousness is to be expected.

UK Businesses Rely on EU Workers

UK businesses of all kinds and in all industries employ EU workers. The question that remains unanswered is how those working relationships will function after Brexit has properly occurred.

There are guarantees in place that workers currently residing in the UK will be able to carry on living here, but it’s not at all clear whether more EU workers will be able to move here with ease after Brexit, and most indications suggest that won’t be the case. This will certainly have a big impact on businesses in many sectors.  See this article on: Solicitors talk Brexit.

All Types of Workers Are Required for the UK Economy to Function

One idea that has been floated by the UK government is the idea of an income threshold, meaning only those earning more than a certain amount of money will be allowed to live and work in the UK. This would mean that highly skilled workers would find it much easier to work in the UK than low skilled workers would.

However, the UK economy relies on both skilled and low skill labour in order to function properly. If that supply of low income workers was cut off after Brexit, more businesses would struggle.

Contingency Planning Might Not be Enough for Small Businesses

For big businesses, contingency plans are already being put in place. This is expensive and time-consuming for large companies, but it will mean that they’re able to protect themselves against the upheaval brought about by Brexit. On the other hand, small businesses don’t always have that option because they don’t have the resources to put adequate contingency plans in place. It’s those small businesses, therefore, that are likely to be hit hardest.

It’s clear that small businesses are not opening at the rate they previously were because of Brexit uncertainty too. This denies the UK economy future growth prospects as well as depriving society of potentially successful ideas and businesses.

What Can Business Do to Prepare?

In terms of what businesses should be doing now, it’s best to seek professional legal advice about the situation, what you can expect and where your business and its staff stand. You should also analyse your supply chain and think about how that could change in the future under various Brexit scenarios. It might also be a good idea to look at existing contracts with EU companies and seek clarifications regarding those.

The Brexit situation is constantly in a state of flux, so things can change very quickly in one direction or the other. Therefore, it’s important for businesses to be watching and listening so that they can work out what their next move should be in order to prepare properly and minimise risk.

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Legal

If You Own A Business, You Need An Estate Plan

planning

planningIt’s an unfortunate fact that arguments over material possessions break out between family members when somebody dies. It’s rough when one beneficiary thinks they’re entitled to that person’s possessions and financial resources more than the others. The complexity of the situation is amplified when the deceased person owned a business.

If you’ve got a family, you have every reason to care about what will happen to your business when you die. Your business has the potential to be an investment for your children or a nest egg for your spouse. If you haven’t created an estate plan that includes your business, it’s time to create one.

Start with a will

Your will is the most basic estate planning document. It allows you to declare who will be named the executor of your business. Your business executor will be responsible for continuing the business.

Dying without a will places a huge burden on your employees, business partners, and the success of your company.

Although a will is important, it’s not everything.

Your will isn’t the principle governing document of your estate

Our USA based readers may be interested in what’s in this article titled: What Might Surprise You About Your Will, CG Trust explains that many assets don’t fall under a will or probate like real estate, life insurance, and mutual funds. When you purchase these assets, you’re asked to assign a beneficiary and sometimes a contingent beneficiary.

When you specify a beneficiary for an asset, that overrides anything stated in general terms in your will. For example, say you leave everythin’ to your aunt Suzie in your will and your children are listed as beneficiaries on your life insurance policy. Your aunt Suzie can’t touch your life insurance policy – only your listed beneficiaries can.

Identify your designated beneficiaries for all business assets. If it’s not somebody you want to inherit that asset, change your beneficiary immediately. Remember, a beneficiary on a specific asset overrides what’s in your will.

Focus on minimizing your taxes

Most people don’t realize that when a business owner passes away, the estate taxes can tank the business. Estate taxes can be more than 50% of the value of your business and must be paid within nine months of your death. Most businesses need to liquidate to pay these taxes.

Thankfully, the IRS has tax breaks in Section 303 and Section 6166 that can protect your business. Section 303 deals with using stock to pay death and funeral taxes; Section 6166 deals with Federal estate taxes.

Both sections make it easier to pay necessary taxes without breaking up your business.

Avoid probate as much as possible

Although the process is mostly clerical, probate ties up assets for months (sometimes years) and can be expensive. It’s best to plan ahead to avoid probate as much as you can.

When you create a properly structured ILIT living trust, the benefits paid from the insurance policy won’t pass through probate. The funds will be available immediately to cover estate taxes and other financial obligations.

You can also establish a grantor retained annuity trust (GRAT). With this trust in place, if your assets grow over the terms of that trust, the appreciation won’t be subject to estate taxes. This allows you to pass your business assets to your kids or your spouse.

Declare power of attorney

You need to declare power of attorney to someone trustworthy to handle legal matters on behalf of the business when you pass away. This individual will be in charge of things like payroll, managing vendor payments, and financial assets.

If you don’t declare power of attorney to someone before you die, the court will appoint a guardian who may not have your company’s best interests in mind.

You also need a succession plan

A succession plan is designed to ensure your business runs as smoothly as possible; it’s a plan that chooses decision makers and creates a strategy for transferring company information to the right people. Although the details for every business will be different, Fidelity.com describes what might be included in this plan.

For example, a management succession plan might include training your successors, delegating responsibilities, and bringing in an outside advisor for their objectivity. An ownership succession plan might include defining who will own vs. manage the business, creating terms that consider your family’s best interests and timing the transfer of your business to avoid a discounted sale of your business.

Get professional guidance

Making sure your business survives and stays in good hands when you die is important. If you’re not sure where to start, contact an estate planning professional for help.

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Legal

4 Things to Consider When Creating a Business Continuity Plan

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finger boxesOne of the biggest mistakes a business owner can make is abiding by the “it will never happen to me” rule in regards to disasters. Each year, thousands of natural disasters occur all over the country.

Acts of nature like wildfires or floods can lead to a business closing for long periods of time. The only way to prevent problems when dealing with disastrous situations is by creating a business continuity plan.

Studies show that nearly 82 percent of the businesses in the United States do not have the IT infrastructure in place to deal with a disastrous act of nature or network outage. Instead of leaving the functionality of your business to chance, now is the time to take continuity planning seriously.

The following are some of the things you should consider when creating a business continuity plan.

1. Work on Identifying the Potential Threats You Face

Before you can create a comprehensive business continuity plan, you need to adequately identify the potential threats your business faces. Having a plan for a variety of possible disasters can help you rebound in a hurry following one of these events. Some business owners only make continuity plans to deal with things like natural disasters, but there are many more disastrous situations to consider.

For instance, figuring out what you would do to keep your business functional in the event of an employee strike or cyber-attack is essential. Once you have a list of possible disaster situations, you need to map out all of their outcomes.

If you are unsure about how to map out these outcomes, working with professionals who are experienced in continuity planning is a must. Often times, these professionals will be able to look at these situations objectively and help you figure out how to create adequate plans for each one.

2. Constructing a Recovery Team is a Must

One of the most vital parts of a successful business continuity plan is creating a recovery team. If you want to keep your own staff freed up during a disaster, hiring a third-party to perform this job is easy. Before hiring a company to fill this role, you need to assess the amount of experience they have.

Not only can a third-party act as your recovery team, they can also help you hone and refine your existing continuity plan. Allowing professionals to get a look at this plan can help you out greatly. They will be able to look at your continuity plan objectively and provide you with guidance on how to improve and strengthen it.

3. Know What is At Stake Without a Continuity Plan

Driving home the importance of a continuity plan is easy if you actually assess what you stand to lose without one. Often times, businesses without a comprehensive continuity plan will lose a lot of money in the event of a disaster.

While some of this money can be recouped via a class action lawsuit, a business may still lose lots of customers in the process. You can learn more about disaster-related lawsuits with a bit of online research.

4. Prioritizing is Vital When Creating One of These Plans

When disaster strikes, you will have to limit the number of resources your team uses. When creating a business continuity plan, it is important to figure out what technology or systems you need up and going first. Having this list of priorities in hand in the event of a disaster can help you limit the amount of downtime your team experiences.

Instead of trying to take on this complicated process alone, you need to reach out to disaster recovery professionals. With their help, you can get a plan in place in a hurry.

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