With the emergence of artificial intelligence, protection for copyrighted content is more important than ever before. As AI systems gain the capability to generate text, art, music, and other creative outputs, traditional notions of authorship and ownership are being challenged. This rapidly evolving field presents a critical question: how can human creators and authors safeguard their works against these emerging challenges?

Register your works at the US Copyright Office to protect your right to recover damages and legal fees.  I’ve created a free step-by-step video and training guide to help you.

Understanding Copyright in the AI Era

To directly address the question, it is important to understand that intellectual property laws are designed to protect human creative intelligence, not artificial intelligence. AI-generated works are not eligible for copyright protection under current laws. This means that while AI can create content, the legal ownership and protection of such works remain a complex and unresolved issue.

Types of Copyrighted Content

Do you own any of these types of copyrighted content? This protection extends to a diverse range of creative works, including.

 

• Website Copy: Text and content published on your website.
• Software:  Yes. Software qualifies for copyright protection.
• Training Courses: Videos, text, and other materials on online learning platforms.
• Artwork: Graphic designs, illustrations, and other visual creations.
• Musical Works: Compositions, recordings, and lyrics.
• Films and Books: Motion pictures, novels, and other written works.
• Audio/Video Recordings: Any recorded media that involves original content.

Why Should You Register
with The US Copyright Office?

While legal rights to work technically begins at the moment of creation, US copyright law mandates registration with the US Copyright Office for certain legal benefits. Without registration, your ability to recover statutory damages and attorney’s fees in cases of infringement is severely limited. By registering your intellectual property, you not only enhance your legal standing but also create a strong incentive for infringers to license your work rather than face potential damages and legal fees.

Steps to Protect Your Intellectual Property

Do not leave your creative assets vulnerable–take the necessary steps to protect your intellectual property and ensure that your hard work is recognized and respected:

1. Understand Copyright: Familiarize yourself with what this right covers and the limitations of AI-generated content.
2. Register Your Work: Take advantage of the legal benefits offered by the U.S. Copyright Office.
3. Monitor and Enforce: Keep an eye on the use of your work and be prepared to take action if infringement occurs.
4. Consider Licensing: Explore licensing options to control how your work is used and to generate revenue.

Register Your Copyrights Using Our Free Video Guide

You will receive a video guide, powerpoint slides and bonus registration tips to help you breeze through the process.

Grab Cheryl’s Free Video, Slides and Tips Here

A step-by-step training guide to register a copyright

Send It To Me!

U.S. Copyright Office: Provides official guidelines and forms for registering a copyright.

World Intellectual Property Organization (WIPO): An international organization that deals with global copyright issues.

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How to scale a business is an often asked question by successful business owner searching for ways to extend the reach of their services from one-on-one to one-to-many.  Entrepreneurs such as business trainers and coaches, personal coaches, health and wellness practitioners, and even software companies with unique products or training methods can create a certification program to scale a business.

A certification program can significantly broaden brand recognition using brand extension and trademark licensing to scale a business beyond the personal services of the founder.  The brand becomes more well-known, and the entrepreneur has the chance to build a legacy for his or her work.

Learn how to scale a business by creating your certification program from a leading expert. Cheryl Hodgson has created a free guide and checklist to help you develop, implement, and manage a legal certification and licensing program. There’s much more to know to make your certification program is legitimate, and that your Intellectual Property is protected.

Grab Cheryl’s Free Guide and Checklist Here

Start Your Certification Program With Cheryl’s Free Checklist

Send It To Me!

Cheryl is recognized as one of the world’s top global trademark attorneys.  She helped many entrepreneurs create a certification program to scale a business.  Following successful completion of the certification program training, the certifier and the graduates, enter into a written license for the use of proprietary content.  They also receive a license to use the certification trademark created for use only by certified graduates.

What is a Certification Program?

A trademark certification program allows the founder to establish a community and network of graduates of your certification training in your signature process, method, or healing modality. By certifying individuals in your system or method, they are licensed to use your copyrighted content and proprietary system, while operating as independent business owners. These licensees utilize your unique service delivery system and proprietary Intellectual Property to serve their clients.  They market their services and signify their status as a licensed graduate by use of the certification trademark and logo created for use by those who are certified and licensed.

Certification programs for specific products—such as software applications or specialized coaching or training methodologies—can significantly broaden public recognition of your brand, Certification programs move your signature process or method from one-to-one training to one-to-many.

A well-structured certification program, especially when paired with a registered trademark and certification logo, can greatly amplify your brand’s reputation. This strategy is not only a way to scale a business but also helps build a lasting legacy for the specialized knowledge and training you have developed.

Scale a Business with Trademark Licensing

Trademark licensing involves a trademark owner (the licensor) granting another party (the licensee) the right to produce, sell, and distribute goods or services under the licensor’s trademark.

When you combine a registered trademark with a certification training program it becomes a cornerstone of a robust certification framework. The licensed trademark serves to identify and protect the services offered by your certified consultants or program graduates. A well-crafted licensing agreement is crucial—it safeguards Intellectual Property, outlines the rights and responsibilities of the licensee, and facilitates the rapid expansion of products or services delivered by certified practitioners. By leveraging trademark licensing, you ensure consistent quality and extend the brand’s reputation while enabling accelerated growth through a network of certified licensees.

 Legitimize Your Certification Program

Cheryl Hodgson has created many certification programs. She will make certain your license agreements and certification marks are enforceable and that your assets are protected.

Download the check list here. And to learn more, contact our office to get started.

Learn More:

Brand Guidelines Inform Trademark Use – Brand guidelines are an essential part of sustaining brand protection. Find out more about the importance of creating an effective brand guide.

Trademarking a Business Name – Two parties use the same mark, but neither registers. Who wins? Bill Finkelstein & Cheryl Hodgson discuss territorial rights for brands that don’t register a trademark but advertise on the Internet.

A Trademarkable Brand in Six Steps – The trademarks you select and register to represent your business are among the most important decisions you’ll make when starting an online business. There are six steps to creating Intellectual Property that will increase the value of your business, establish brand legitimacy, secure your exclusive niche in the market, and create a lasting legacy.

The post How to Scale a Business – Create a Certification Program appeared first on Brandaide.

INSURE a TRADEMARKABLE Brand

in Six Steps

The trademarks you select and register to represent your business are among the most important decisions you’ll make when starting an online business. There are six steps to creating Intellectual Property that will increase the value of your business, establish brand legitimacy, secure your exclusive niche in the market, and create a lasting legacy. A TRADEMARKABLE brand results from the steps you take before you file a trademark application.  One of the most important is performing a trademark search to determine if your selection is available to become a trademarkable brand. Find out it’s not already owned and used by someone else, so you aren’t at risk of being sued.

The acronym INSURE and the steps it represents—Investigate, Navigate, Select, Use, Register, and Enforce—are the six steps necessary to build a valuable brand, a brand of distinction. Okay, it’s a bit corny, but at least it’s easy to remember!

The first four steps are actions you must take before you seek to file a USPTO trademark application. They lead to choosing a Trademarkable brand name, successful trademark registration, and the ability to enforce and sustain your rights.

70% of all trademark applications are refused! The steps you take before you file determine your results!

Each of the six steps is important; skipping a step can be disastrous. Taking a shortcut in this process is tantamount to jumping on a subway heading in the wrong direction: you’ll soon realize that your journey will likely take a lot longer and be more expensive than the original one.

These steps are not separate and distinct; they are interrelated. For example, the ability to maintain a brand through enforcement efforts may very well be tied to the other actions during the earlier Selection step.  Let’s look at each step in greater detail.

INVESTIGATE—

Turn on the lights with a Trademark Search

A professional trademark search of the brand space is the first step on the path.  And, if you’re not sure how to conduct a proper search to avoid conflicts, read on. A trademark search is like turning on the lights in an otherwise dark room: it lets you see the competition and leads you safely to the intended destination without bumping into others in their room you didn’t know were there. Don’t skip this step by relying solely upon what they can discern from the Trademark Office records, or worse, relying upon the Examiner to tell them what’s there.

It’s almost impossible to conduct your own trademark search since soundalikes, misspellings, and foreign translations of your mark can all cause your trademark application to be refused. And you certainly don’t want to get sued after launching! And, wait times to review your application are up to 10 months or more, which is why the waiting period for approval feels like it takes forever.

A complete search covers other marks you can not possibly discern from typing in the precise words to the USPTO website.  A proper trademark search will reveal

• Non-identical marks that may nonetheless be confusing
• State trademarks in all fifty states
• Domain names containing the potential mark
• Common-law directories
• Trade directories and phone book listings

NAVIGATE —

Analyze and strategize

With a trademark search in hand, it’s time to see whether the prospective mark is worthy of a major investment. The investment includes marketing dollars, the legal costs of registration, and the future costs of maintaining and enforcing rights. Think of a trademark search as a chance to kick the tires of a new car or obtain a termite report before closing on a new home. Knowing the problems and benefits is better before making a long-term commitment. Without a full search and proper analysis, it is difficult to formulate a plan.

Your plan will include the precise mark(s) you will file to register and the exact goods and services to be claimed (In some cases, the plan should identify which goods and services should be avoided to sidestep potential opposition).  A qualified trademark professional can use the search results to help you develop a comprehensive brand protection strategy

SELECT –

A Strong, Memorable Trademark

You Can Own & That Grows Your Public Recognition

i.e. a TRADEMARKABLE Brand

During an interview, I discussed the subject of with a real expert, Margaret Walker, then Senior VP of Intellectual Property of Xerox Corporation.

Let’s understand what makes for a strong trademark and what does not and what your risk tolerance is. Are you okay to go out and invest this much money in something which you are not going to be able to protect down the line?
Margaret Walker, V-P Xerox

What factors should you consider when making a final decision as to the trademarks to marry to your brand values and message? As a general rule, where a brand lands on the continuum of legal protection—from strong to weak—must always be considered.

What is the trademark continuum? The trademark continuum is simply the range of protection afforded to any given term that spans from strong to weak. Legal protection’s strength (and hence, degree) is based on a series of labels. These labels include coined, arbitrary, suggestive, descriptive, and generic.  Read and learn more about the five choices for a trademark before you make a final selection:  5 Choices for a Trademark and 2 are Really Bad!

Use the trademark search to help you safeguard your business from potential trademark disputes. Before making a final selection, search for the intersection where selection meets protection.

USE AS A TRADEMARK

that meets  federal the regulations

Trademark Use is the manner in which the trademark owner, as well as third parties (including the media), presents a brand name to the public. Proper use is best established when a product first enters the market, and it involves much more than nice brochures, ads, commercials, and pretty packages. The content of these marketing materials should present a clear, consistent presentation of the brand. The marketing materials should also include the identity of the generic product being sold. Dozens of pages of federal regulations define Trademark Use, whether on websites, product labels, and product displays or for us in marketing services as well as products.

Without Trademark Use, your trademark registration will be refused and may or may not be able to be corrected.  And even after successful registration following registration, public use should be periodically monitored to avoid the risk that the mark becomes descriptive or generic.

Register a TRADEMARKABLE Brand with a Plan

A well-thought-out strategy before you file a USPTO application will greatly increase your odds of successfully registering your chosen trademark and creating a Trademarkable Brand.

Trademark registrations are becoming ubiquitous for online businesses and are mandatory to create brand legitimacy.  Here are a few examples:

• Amazon Brand Registry requires a trademark to become a trusted Amazon seller
• Apple has begun requiring a federal trademark to register in the App Store.
• Facebook, Instagram, and Twitter require a federal trademark as a condition of seeking to prevent the use of your trademark as someone else’s handle in Social Media.
• BIMI email authentication requires a federal trademark for a logo to take advantage of enhanced email security and deliverability
• Filing to recapture domains containing your trademark that are trading off your goodwill requires a federal trademark, without which your burden of proof is much higher.

Registration is like recording the deed to a house, allowing the owner to kick squatters out quickly and with minimal expense since it provides constructive notice to the world. Constructive notice is a legal substitute for actual notice, which is code for “I told you” to the world (of course, the understanding is that one can’t personally tell everyone in the world) of a claim to ownership of the property.

ENFORCE

and Sustain—Snooze, and you will lose your Trademarkable Brand

Successful trademark registration brings the brand owner to the most important point in the brand-building process: building and managing the brand’s public persona. The goal is to maintain the differentiating thoughts and feelings about the brand and remain valued and valuable.

You might ask, “What is monitoring, and why is it so vital?” Also called policing your mark, monitoring is intended to maintain brand health and avoid losing rights. This includes implementing brand protection strategies to reduce risk and liability resulting from unattended counterfeiting, diversion, tampering, and theft.

First, the law requires it. The brand owner must maintain registrations and monitor third-party use of his or her brand names and symbols in the market and, where appropriate, take action against infringers. This does not mean a trademark owner must file many costly lawsuits. As we saw earlier, rights can be lost when a mark is improperly used. A brand protection program protects business value and bulletproofs the brand from costly legal challenges if attacked. Remember the mantra for guarding brand value: SNOOZE AND YOU LOSE.

A well-designed monitoring program reduces online poaching and maintains brand equity. The objective of policing rights is to address third-party uses before a little problem grows into a big one. The cost of an ounce of prevention is less than hundreds of thousands of dollars in lawsuits or, even worse, a complete loss of rights.

Follow these steps, and you will be well on your way to a business and brand that’s BUILT TO LAST.

If you’re looking for a legal advisor with a proven track record in the field of trademarks, schedule a time to meet with us. The cost applies to the services for which you engage us.

Are you Registration Ready?  Take Our 2-Minute Quiz Now to Find Out!

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HOW TO HIRE AN INDEPENDENT

CONTRACTOR vs EMPLOYEE

by

Talmar Anderson, Boss Actions & Cheryl Hodgson, Attorney & Founder of Brandaide

Many business owners engage companies and individuals for part-time and project work by hiring 1099 independent contractors, or freelancers. The more modern lingo is the “gig worker” for the gig economy. When hiring an independent contractor vs employee, there are two action steps required. While separate and distinct, they are highly correlated. Both are required for success.  These two steps include:

1. Understanding and navigating the hiring process and the difference between independent contractor vs employee.
2. Documenting the relationship with the chosen gig worker with a consulting or independent contractor agreement

First, how do you know for certain whether the gig worker has the necessary skill set to successfully meet the hiring requirements of your business? Will they complete a project and deliverables in a timely and professional manner?

Once you’ve identified and are ready to engage an independent contractor for project work, or even for part-time ongoing services, a written independent contractor agreement will help establish ground rules and avoid pitfalls in hiring an independent contractor. You’ll also need to make certain the chosen company or candidate qualifies as an independent contractor vs. employee for tax and payroll purposes.

Hiring an Independent Contractor Begins

with Knowing Yourself, Boss

As a business owner, making decisions about how others will work in, or for, your company is an inevitable milestone.  Unfortunately, too many wait until they are so buried they allow under-performers and companies that are not truly going to deliver what a business needs, to jump into the line waiting for your company’s dollars.

The truth is, we can structure your business in just about any way that you want to have it. If you want a company full of experts doing their own things, coming and going, then likely you will be attracted to working with an independent contractor. These require less management time (NOTE: This does not mean no management time is required).  However, you need to be very comfortable managing and paying for results only. This model is not for the micro-manager type. Gig workers are best when you have a short-term need such as developing or testing a new service or product.

However, once it becomes an intrinsic part of your business, the standard Independent Contractor engagement with only 30 days’ notice leaves you vulnerable to possible labor shortages. Now you only have 30 days to hire and onboard a replacement for your next project.

If you are a business owner that knows you want to give specific direction on how, when, and what your team is doing day in and day out, you are looking to build a business model of employees. This allows you to set and hold accountability around a responsibility to do the job the way you expect…every step of the way. Employees allow business owners to plan for capacity and ensure consistent quality in the results.

Small business grows best with a fluctuating team that consists of vendors, independent contractors, and employees. The big question here is Do you want to be the Boss of a team that delivers your vision your way? Or, do you want to engage with experts that can deliver a project result without any obligation on either of your part to continue working together?  What works best for you in each role, and each hire may be different and can change as you grow.

Independent Contractor vs. Employee

Before services begin, you will need to know whether your new team member is an employee subject to federal withholding and social security contributions.  Or will the gig worker be a 1099 independent contractor who receives the “1099-NEC” IRS form early in the new year?

The topic of whether someone on your team qualifies as an independent contractor vs. an employee is a hot topic. The State of California has narrowed the scope of individuals that can legally be considered independent contractor vs employee. Here is a link to a more depth briefing on hiring independent contractors in California.   The IRS also publishes guidelines for determining whether an individual is an independent contractor vs employee.

Consider these Critical Points when deciding between IndependentContractor vs Employee

• Is the work type typically done under the direction of a supervisor or done by a specialist without supervision, and is the work project-based, or an ongoing service agreement?
• Independent contractors normally set their own hours and control their own means of providing services, including equipment, supplies, and licenses. The “employer” has the right to control or direct only the result of the work and not what and how will be done by the freelancer. The IRS “right to control” test has been the traditional test.
• California has created the ABC Test which is more restrictive than that found in most other states.
• Certain licensed professionals are exempt, i.e., they qualify as a 1099 independent contractor provided they meet the standards of the California Supreme Court ruling in Borello vs. Dept. of Industrial Relations. Review those requirements here.   Some of those that are exempt are contract attorneys and paraprofessionals.

The Written Independent Contractor Agreement, aka Consulting Agreement

Written agreements are always advisable, even for a gig worker. While the provisions of the agreement will vary depending on the scope of services, there are key provisions common to all contractor agreements. Here are some of the key provisions of an independent contractor or consulting agreement, including reasons to have a written agreement in the first instance.

• Establish that you are hiring an independent contractor. By clearly defining that the services are those of an independent contractor, the individual will not be entitled to either employee benefits or protections under state and federal law for employees. This includes health insurance, unemployment benefits, and worker’s compensation.
• Insurance Requirements. Does the nature of the services require that the gig worker provide proof of insurance?
• Scope of Work. Outline in detail the deliverables due from the independent contractor and when.
• Payment schedules and Delivery Deadlines. Make certain to specify in writing project delivery deadlines as a prerequisite to making progress payments, particularly for technical projects. This includes specifying well-defined milestones that must be met to receive the specified installment.

For example, hiring website designers and developers is an area fraught with peril.  Developers often delegate one or more aspects of the website to their own independent contractors. They seldom seem to deliver fully functional websites on time. Payments should be in installments and tied to deliverables and proven functionality as set forth in RFP’s and attached to the agreement.

A clear specification of who will pay for expenses incurred in performing the work should also be included in the agreement.

• Confidentiality, non-disclosure, and trade secrets. All independent contractor agreements should contain confidentiality and non-disclosure provisions that are signed prior to the commencement of work. Protecting confidential business data is especially important for vendors with access to customer lists, financial information, or any confidential business process or system. Unless it is your doctor, attorney, or clergy, where the law automatically imposes a relationship of trust, there is no confidential relationship without a signed contract.
• Non-competition and non-solicitation. Is the work of a nature that you would not want the independent contractor working for a competitor at the same time? Non-solicitation means the gig worker cannot solicit your customers, clients, or your employees while performing services, and for a period of time after the services are completed.
• Ownership of Intellectual Property. A consultant or independent contractor that creates copyrightable content for your business must sign a written agreement.  This agreement is commonly referred to as “work-for-hire” agreement and must contain magic language defined by the Copyright Law. Without a signed agreement the copyright to the content remains with the contractor, not the “employer”! A work-for-hire provision is mandatory for copywriters, outsourced marketing consultants, web designers, graphic designers, blog writers, and software app developers. Don’t risk being held hostage to access websites or apps even after paying for the work by failing to secure a signed agreement.  This has happened to several of Cheryl’s clients over the years.
• Access to Data and Work in Progress. Closely related to IP are technical projects such as websites and software apps. The contracting “employer” needs to know where the project is housed, and how to access it. Again, don’t find yourself held hostage when you don’t have logins or access to projects being hosted on staging servers that are controlled by the service provider.  Set up staging sites on your own hosting platform, not those of the independent contractor.
• Grounds for Termination. If the contractor fails to perform, or the deliverables are not as agreed upon, how and when can the agreement be terminated?
• Dispute Resolution.  What law will govern, and how and where will disputes be resolved should they arise?

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For the family business, succession planning is often as important as thoughts of an exit strategy. Many of our successful business clients use either LLCs or corporations for their business structures. Both offer insulation from personal liability for obligations of the business. An LLC or corporation, when combined with a family trust or living trust, becomes a valuable, and cost-effective form of succession planning to ensure your business and personal legacy.

A business structure that provides for uninterrupted continuity for the operation and life of the business requires a thoughtfully prepared corporate shareholder’ or LLC operating agreement that addresses the unexpected events that are part of personal and business life.

5.4 million new business applications were started in 2021. Most of those new businesses will be solopreneurs, or small family-owned businesses.

In part 1, we focused on the 5 key provisions not to be overlooked when drafting an LLC operating agreement or corporate shareholders’ agreement, with a special focus on those owned by multiple owners who are not family members. Let’s examine the same business structures from the perspective of succession planning for the family business.

The Family Business

Single Member LLC or Corporation

When the business owner forms a single-member LLC or corporation, the sole owner must consider what will happen to the management and control of the business upon a sudden death or disability. The sole owner business will not continue to operate smoothly absent a succession plan that transfers ownership of the LLC membership interests or stock in the corporation to a new owner by means of a will or preferably a living trust. Whether it’s a family member or a third party, succession planning is a must.

Three Tips: Family Business Succession Planning

If your business is co-owned with a spouse or significant other, your business structure can also become a valuable, and cost-effective form of estate planning to ensure your business and personal legacy. Here are three tips to leverage ownership in your LLC or corporation into an estate planning vehicle that ensures the seamless operation of your family business when unexpected life events arise.

Owning Shares as Joint Tenants with the Right of Survivorship

In many states, including California, it is legal to hold title to real estate as well as stock shares or LLC membership interests as “joint tenants with right of survivorship.” Title to property held in Joint Tenancy automatically transfers to the survivor of the first to pass. There is no need for probate, nor does the property need to be held in trust. Note: (Do check your own state laws for to learn whether this type of joint tenancy is allowed).

Stock or membership interests held in joint tenancy means ownership of the entire property passes directly to a surviving spouse or child without the need for a will or probate. However, with children, there are additional considerations, so a family trust may well be the best solution.

Avoid Probate with a Living Trust or Family Business Trust

The family business trust, aka living trust, is an important estate planning tool for the family business. Title to corporate shares or LLC membership interests can be held in the name of the Trustee of the Family trust, normally the owner of the business. A family business trust maintains management continuity and avoids the cost and red tape of probate proceedings. Absent a family trust or joint tenancy, a will is necessary and this requires opening an estate proceeding in order to transfer remaining assets directly to an individual or into a trust.

The trust document specifies how all assets are distributed to beneficiaries and can provide for gifting specific assets to named individuals. The power to manage and control the business can be assigned to a management committee in the case of members of the next generation who are too young to assume full management responsibility.

A living trust for a family is advisable even if there is not a transfer of the actual business to the trust. A regular family trust has the same benefits and allows for continuity and avoidance of probate when properly crafted.

Caveat: The most common mistake made by family business owners is failing to transfer title of assets to the name of the trustee, as trustee of the family trust. In order for a trust to be effective, title to real estate, autos, and company shares or membership interests must be transferred to the trustees of the trust. The same applies to title to personal property and real estate that one wants held in trust.  As a practical matter, you the individual forms the trust, and you also become the trustee of the living trust. You must still record a transfer of the asset from yourself as an individual, to yourself as “Trustee of the Jones Family Trust.”

Family Business Succession Planning through Gifting of Shares

When launching a family business, consider vesting a small percentage of company shares or membership interests in the name of your children, or other family members. This allows vesting of shares when valuation is minimal, and the value of the shares grows tax-free as the value of the business grows. There are lifetime gifting limits as well as an annual per-person exclusion from taxation. Current IRS rules allow an annual gift of up to $16,000 per person per year tax-free.  The rule can be used to transfer a small portion of the business each year to family members working in the management of the business. This amount can be given each year and is not limited to children, but anyone, including long-time key employees.

These are just a few of the considerations in planning your business structure as well as succession planning for the family business. If your business structure and succession planning needs a make over, plan a time to meet with us.

The post Family Business Succession Planning appeared first on Brandaide.

Every business needs a legal and business structure, both for day-to-day operations as well as a business exit strategy. A corporation and a limited liability company are the most common legal structures used by entrepreneurs and new business owners. Both require well-drafted agreements, called the LLC Operating Agreement or a Corporate Shareholders’ Agreement.

A business exit strategy is often associated with building the company with a future sale in mind. However, there are other reasons for a business structure, one that contemplates not only business operations and insulation from liability, but also provide for sudden departures of shareholders or members due to death, illness, or withdrawal.

When building a team-managed business, your business structure and exit strategy are all the more important to properly implement. There are differing, but equally important considerations for both the family-owned business, as well as the partner/investor business. First, I’ll share the key points to remember to button up the legal structure for the partner/investor business.

In Part 2, we’ll review a checklist of essentials for the family-owned business operating as an LLC or corporation, and the estate planning tips for both types of businesses.

Do you know the benefits of the business structure?

Avoiding Personal Liability & Risk to Personal Assets

No one wants a creditor or business failure to put your home or basic life necessities at risk when launching a new business. If your business is sued, and absent a personal guarantee on a loan or note, your personal assets are not at risk to enforce a judgment. Yet, there are other equally important reasons which require consideration.

Continuity of Life

No one likes to contemplate the inevitable. Death, serious illness, or acts of God. Unlike humans, an LLC or corporation continues on in spite of any of these events. Yet, it’s a misleading statement to assume this is true if the requisite details are overlooked. An exit strategy in case of one of these unexpected events is as important as a plan for a future sale.

As an attorney who has litigated many cases, I’ve represented clients that ended up in difficult situations, often because of some part of the business structure that was left incomplete or overlooked. The statement “The devil is in the details” certainly applies to setting up your business structure.

The details make a difference between a business that is future-proof, and one thrown into unexpected crisis as a result of failure button up the details of a business structure. The time and expense of properly housing your business operations and assets pale in comparison to the cost and disruption that comes with unfinished business.

Five Tips to Future-Proof your Business Structure

The Corporate Shareholders Agreement or LLC Operating Agreement

A limited liability company requires a well-crafted LLC operating agreement. The corporate structure has a similar agreement called the shareholders’ agreement. Both types of agreements are essential not just for management of the company and voting rights of control, but for death and disability. I once litigated a case where a corporation with 5 members operated with no corporate shareholders’ agreement for 25 years, and it landed in court when the founding member and owner was locked out of his own company!

A shareholders’ agreement and LLC Operating Agreement should always include the following key provisions:

Death or Disability

Without an agreement requiring a buy-out of shares by the company of a deceased partner or shareholder, the company can find itself in business with the spouse or children of the deceased or incapacitated member or shareholder, or a non-participating spouse in managerial control of the business.

Withdrawal or Expulsion of a Shareholder

Absent a provision in the agreement restricting transfer to third parties, a withdrawing shareholder or LLC member is free to sell his or her shares or membership interests to a stranger. A restriction on transfer requires that leaving member shares be sold back to the company, or offered to the remaining shareholders is essential.

Business Valuation Methods

Poorly drafted agreements often lack valuation methods and reference payment of “book value” for the shares or membership interests. Book value is a highly discounted value after deducting nearly expenses. This may be an advantage for the company, but for the exiting shareholder or their estate, it’s an unfair and often inaccurate assessment of the value of the company. An agreed method for obtaining a fair and independent valuation should be included. There are 5 common methods of business valuation.  Learn more in our interview with valuation expert Melisa Silverman.

Payment of Purchase Price

Any agreement should specify payment of the price for shares be made in installments in order for the company to orderly fund what could be a large payout. The company should consider key person life insurance to fund buyouts of key owners to prevent financial impact upon business operations and ensure uninterrupted business operations.

Ownership or Licensing of Intellectual Property

The most valuable business assets are often intangible, including trademarks, copyrights, trade secrets, and know-how. The LLC or corporate structure is a terrific vehicle for owning these valuable business assets and allows for creative licensing arrangements among company divisions or investor vehicles. There are exceptions to holding title in the name of the entity, particularly when the company brand is a personal brand. In the case of a personal brand, a revocable license to the company by the individual is a more prudent alternative. A few years ago, a famous vintner in Paso Robles lost control of the winery he founded, after bringing in outside investors. Not only did he lose control of the winery, but he also lost his name, since it was an asset of the corporation.

In short, don’t overlook the details when it comes to your business structure. A good business exit strategy includes more than the future sale of your business. Don’t overlook the inevitable unexpected life contingencies.

In Part 2, we’ll review a checklist of essentials for the family-owned business operating as an LLC or corporation, and the estate planning tips for both types of businesses.

Need help in securing your own business structure and exit strategy, contact us.

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Online brands must create brand legitimacy and brand authenticity as part of the brand development process. Brand legitimacy and brand authenticity ensure your online brand is viewed as trustworthy and authentic by the public. This is the beginning of establishing a good brand reputation that is both an asset of the business, and one that is legally protectable. Step one is to secure a federal trademark registration.

Have you ever wondered if it’s really so important to secure registered trademarks for your brand?

Business Assets = Brand Legitimacy & Brand Reputation

A registered trademark establishes brand legitimacy as well as brand authenticity. Intangible assets, including your brand and the trademarks that secure brand assets, are considered “goodwill.” Goodwill is an actual business asset that is often carried on the business’ balance sheet under “general intangibles.”  This includes your brand reputation. Reputation is “a place in public esteem or regard: good name.”  Merriam Webster Dictionary.

Brand Reputation is the perception of the brand and how the particular brand of the company is viewed by the customers, stakeholders, and the market as a whole. . . . Brand Reputation is a must have intangible asset for the organization.

Emerging brands with real customers and real businesses sometimes postpone filing for a registered trademark as something you’ll do someday, but not now. Don’t wait until that “someday” turns into a really bad day for your brand reputation. You might just be surprised to learn just how important trademark registrations are for creating brand authenticity and brand legitimacy, and for providing a mechanism for maintaining brand reputation. You may also be shocked to learn about what has happened to several of my clients who ended up needing to enforce the rights, or prove they had more than just a domain. The clients who had a federal trademark were glad they did. Those who didn’t, wish they had.

Brand reputation can be destroyed overnight by one of the thousands of online scams that happen daily. Your brand legitimacy and brand authenticity will be challenged when you become the target of domain hijacking, fake websites pretending to be you, counterfeit versions of your products, or competitors who divert customers by the purchase of your brand name as a Google Adword. My personal beef is with some unscrupulous Internet marketers who disparage your online brand in order to sell their own product or service, using a phony “scam alert” about you or your brand under the guise of free speech.

What is Brand Legitimacy and Brand Authenticity?

Brand legitimacy is defined as “in accordant with established legal forms and requirements.”  If you have an online brand and are marketing goods and services online, it’s high time to legitimize your brand. I give this unsolicited advice only with the best of intentions, after helping dozens of clients who had to defend their own brand legitimacy in court. After many years as lead counsel in federal court trademark lawsuits, I can say from first-hand experience: You need a federal trademark to establish brand legitimacy with the courts, the public, and in online marketplaces.

Brand legitimacy is now required for almost any type of brand enforcement even on online platforms. Online brands on the Amazon marketplace are now required to have a federal trademark to be admitted to the Amazon Brand Registry Program. Once admitted to the Amazon Brand Registry Program, brand authenticity, and brand legitimacy are pre-established! And, it begins with a federal trademark.

Trademark registration is the legal process of establishing brand authenticity and brand legitimacy. A USPTO trademark for your brand creates public trust so prospective customers aren’t confused should they stumble across multiple brands with the same name. The entire public policy reason for allowing one merchant to monopolize a term for sale of certain products or services is not to protect the brand owner, but to prevent deception of the consuming public!  Successful registration of a trademark can take over a year. Why? Because the process allows for time to make certain there are no existing registrations that are likely to “cause confusion, or to cause mistake, or to deceive.”  15 U.S.C. § 1052(d).  Building brand authenticity and brand legitimacy also means use of your trademarks consistently, and creating brand guidelines to inform use by third parties, including the media.

Branding and Brand Authenticity Began with the Egyptians!

The need for a brand actually dates back to the Egyptians in 2700 B.C. to identify wandering livestock! With the invention of the printing press and weaving of cloth in Jolly Old England, brands and branding began a new era! A brand became the means of distinguishing your product or service from those of your competitors and was meant to indicate trust and authenticity! In today’s crazy world, knowing which online brand to trust is a really big deal!

How Trademark Registration Creates Brand Legitimacy

A registered trademark places the world on notice of the legality of your brand, i.e. brand legitimacy. Who doesn’t record the deed to your house or register the title to your car? But, there’s a greater payoff than a piece of paper. Here’s the checklist of what that piece of paper does for your online brand.

• Legitimizing your brand with a federal trademark carves out your own “safe space” (zone of protection) within which to market to your customers without the risk of customer confusion and deception.
• Your brand becomes defendable against intruders (infringers) into your safe space.
• Intellectual property increases the value of your business and legal protection for IP, including trademark protection is always of foremost concern to investors. Investors are also assessing risk as part of their decision process.
• Prospective purchasers of any business also want to make certain their purchase does not include purchasing unknown legal risks. Trademark registration creates legal certainty and a means of defending rights in the brand and business assets being sold.
• Federal judges charged with overseeing trademark cases won’t take your business seriously or even give you a day in court if you don’t have a trademark registration that spells “legit” in the mind of the courts.

Download our free Consumer Guide to Trademark Registration Services. Trademark protection is made easy with our three-step trademark registration process: Select | Secure | Sustain. If you are ready to register a trademark, schedule a time to Meet with Us.

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Trademark Domain Name Like Hotels.com (Maybe Not So)
Smart?

You’ve spent thousands of dollars on the marketing and advertising of your brand, and your brand name is in a domain? Want to trademark a domain name?

Early Internet marketers disseminated misinformation leaving many Internet businesses with weak or no brand protection.  Marketers in their quest to secure easy search rankings, as well as domain resellers seeking to drive up prices, failed to communicate this important message:

A generic term will never be a trademark or brand for the product or service being sold.

That message has been passed as law by the U.S. Court of Appeals in the case of Hotels.com, a company that spent thousands in court fees attempting to protect its generic domain name from competitors’ use of the term in SEO. In re Hotels.com, L.P., 573 F.3d 1300 (Fed. Cir. 2009) affirmed that a generic word can never be trademarked, at least not for the goods or services being sold under that name. Yes, you can trademark a domain name but, like any other mark, you must select a distinctive term in the domain.  Start your 1st step in making your brand protected.

The only argument available to business owners who are committed to a weak or generic term is to throw money and legal fees into attempting to prove the term has “acquired distinctiveness.”  This means proving the public identifies the term with a particular business or source for goods and services.  As was the case here, such efforts after the fact are an uphill battle not easily won.  The company failed to persuade the board that its survey showing 76% of 277 consumers thought the domain name was a brand name was sufficient evidence.  The board stated that “the survey design did not adequately reflect the difference between a brand name and a domain name.”

So what does this mean now that HOTELS.COM is not a trademark?  They started out to trademark the domain names. It means that Hotels.com cannot sue other companies who use the term “hotels.com” to trigger ads on Bing, Google, or other search engines.  Try doing a search for “hotels.com” and see what comes up—the official website, plus Travelocity®, Priceline® and many more.

By definition, a generic term cannot identify a source.  Be unique to be protected.

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When someone asks “How to Trademark a Name UK” there are two answers since there are two ways to trademark a name in the UK.  Early in 2021, the UK withdrew from the European Union, including the European Union Trademark countries (EUTM). For this reason, a EUTM filing no longer includes the UK requiring either a direct filing using local counsel or through the Madrid Protocol.

Filing for an international trademark in other countries includes the following. One can file directly in the UK using the Brandaide International Trademark Attorney Network. Learn more here. The second option is to use the Madrid Protocol treaty system by filing in the U.S. Trademark Office. There are significant pitfalls, however, which are discussed in Madrid Protocol Registration Traps.

We’ll look at both ways to file as well as the pitfalls so you can make a smart choice!

How to trademark a name UK using a
British trademark attorney

After much experience, we almost answer the question of how to trademark a name UK with this advice. File directly using a UK trademark attorney. Here’s why. If the UK is only one of several countries designated in the same Madrid Protocol application, the cost of the UK attorney filing will almost always be less than a Madrid Protocol application for only the UK.

The U.S. Trademark Office charges a setup fee for a Madrid Protocol application, and WIPO (the World International Property Organization) also charges an administrative fee in addition to the filing fees charged by the UK Intellectual Property Office.  My last several filings have been direct filings using our UK trademark counsel for another reason. Your UK trademark application will almost always receive an Office Action that requires a UK trademark attorney to respond. And, due to delays and problems receiving Office Actions, deadlines can be missed. When a UK attorney is on the file, they also receive the Office Action. Without a local UK attorney, the Office Action is sent to WIPO, who then forwards the application to U.S. counsel.

How to trademark a name UK
using the Madrid Protocol

The Madrid Protocol is a treaty that allows a foreign trademark owner in any member country to file a trademark application in any other member country by filing either in their home country or at WIPO in Geneva. However, there are two big pitfalls to be aware of when filing by using the Madrid Protocol.

The U.S. Trademark Application Must be Approved for Registration in the U.S.

All Madrid Trademark applications succeed or fail only to the extent the U.S. application successfully registers. I had a client who, before engaging our services, had invested significant fees to file in 10 foreign countries based upon her U.S. pending application. The USPTO approved her application, but a third-party trademark owner opposed her application. She did not receive professional expert advice to defend her U.S. application and agreed to restrict her U.S. application.  As a result, she lost all of the filings in every other country! The bottom line is your U.S. trademark filing must be rock solid or you will lose all the foreign filings when the U.S. application fails. If you want to learn more about international trademarks our brandaide attorney can help you out.

U.S. applicants using Madrid Protocol can only protect the identical goods and services that are claimed in the U.S. application

The decision as to how to trademark a name in Canada should also be based upon understanding that U.S. trademark owners have a distinct disadvantage when using Madrid Protocol to trademark a name UK. Most foreign countries do not require the owner to actually use the trademark to sell the goods and services.  This means, that foreign owners routinely file for many goods and services that they will never sell and have no intent to use. The U.S. is just the opposite. For example, if the only item of clothing you sell only is tee-shirts, you can only protect tee-shirts in every other foreign country when the filing is done with Madrid Protocol.  On the other hand, when you file the same application using a local Brandaide International Trademark Attorney, you could file for tee-shirts, jackets, coats, pants, shirts, and any other item in the same classification, even if you have never sold those items in the U.S.

Schedule a time to meet with us here and we’ll help you decide how to trademark a name UK.

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A trademark registration serves as an insurance policy for brands and businesses online and off. Do you need one for the names of your products or services? The process for obtaining a trademark registration can be confusing and complex. Understanding the benefits of having a registered trademark can help decide if one is right for your business. I’ve developed a three-step process Select | Secure | Sustain to guide successfully vax your brand. 

In the online digital world, goods and services are marketed and accessed across more marketing channels than ever before. While traditional media such as radio, television and print advertising are still important, they are only a few of the channels used to reach consumers.

A common form of online brand theft is infringing domain names.

Nearly every business now markets or sells its products and services online.  Millions also use social media to increase their reach to customers. With these increased opportunities come new threats, as well as more reasons to make sure the names of products and services are properly protected with a registered trademark.

A trademark registration provides a shield to prevent someone else from coming after you when you don’t register. A registered trademark is also a sword that can be used to quickly stop poachers, especially the online varieties that love to make money off of other people’s hard work and Intellectual Property.

Here are six reasons your online brand names need a trademark registration 

1. A Trademark Registration Provides Constructive Notice

A trademark registration is like the deed to your home, allowing you to kick squatters out quickly and with minimal expense, particularly in the online space where many of the problems occur. A registered trademark provides constructive notice to the world of the trademark owner’s rights.

Constructive notice is a concept most people understand when the deed to their house is recorded; the same applies to trademarks. Constructive notice is a legal substitute for actual notice.  Actual notice means, “I personally told you.”  No one can personally tell everyone in the world of their claim to ownership. As a result, the law allows the owner to record a claim of ownership in a public agency where third parties are responsible for searching the public records to learn of your rights. Constructive notice means ignorance is no defense to choosing the same or a confusingly similar name.

A registered trademark provides nationwide protection, regardless of the actual geographic use of the mark

2. Trademark Registration offers Cybersecurity to Shut Down Infringing Domain names

Does your company also market its services online, or sell products over the Internet? If so, then you probably need a trademark registration.

These days, the most common form of business theft of trademarks is infringing domains. Trademark infringement in a domain occurs when a third party uses your trademark or brand name in a URL to offer competing goods or services to yours. This includes sneaky practices such as typosquatting (deliberate misspellings of domains) and diverting traffic to third-party sites.

There are legal procedures to have infringing domains containing your trademarks transferred to you. With a trademark registration, these procedures become simple and cost-effective. Without a registration, stopping them can be costly and more complex.

3. Competitors that bid on trademarks with Google

In many industries today, business owners purchase keywords for paid search engine results. An ongoing problem is a competitor purchases your trademarks from Google and uses them to advertise his or her services, not yours. This practice raises the cost to brand owners to advertise their own products since you can be forced to bid against a competitor to use your own trademark in a keyword ad campaign. A trademark registration is a tool to force them to stop.

4. Social Media Squatters and ISP Take Down

Theft of trademarks on Facebook, Instagram, and other social media platforms is also an everyday occurrence. While social media platforms have a complaint procedure, the chances of successfully stopping an infringing use are not good unless you have a trademark registration.  Complaint forms are sent to an anonymous department with no personal contact. Without a registered trademark, you will likely never receive a response and be powerless to recover the poached page or handle.

5. Stop Import of Counterfeit Goods with Trademark Registration

Millions of products are sold on sites like eBay and Amazon. The world of counterfeit goods, both online and off, is growing daily. A trademark registration assists with both of these threats.

Your registered trademark can also be listed with U.S. Customs and Border Protection, which will act to stop fake goods from being imported into the United States.

Registrations also assist with efforts to have counterfeit goods removed from Alibaba, eBay and Amazon.

6. Orderly Expansion of the Business into new locations

A US registered trademark provides nationwide protection, regardless of the actual geographic use of the mark. A registered trademark allows you time to expand into new states and territories without less risk of being blocked by a non-registered user in one location. U.S registrations can also be used as the basis for applying for trademark registration in foreign countries. To learn more about foreign registration here are some tips on How to Secure a Foreign Trademark.

Make a smart choice today and Schedule a time to Meet with Us to Vax Your Brand with Plan.

Are you Registration Ready?  Take Our 2-Minute Quiz Now to Find Out!

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