By Associate Attorney Danielle Nodar
Branding your business helps set it apart from your competitors and keeps it present in the minds of consumers. To protect that brand, a business can obtain a trademark that essentially puts the world on notice that you are the owner of the specific mark. A trademark is a “word, phrase, symbol and/or design” that identifies and distinguishes the goods or services of the owner of the mark from another party. Examples of these marks include brand names, slogans, tag lines, logos, and design elements (think, Tiffany blue boxes). To get a federal registered trademark, the mark must be used in commerce, so normally the owner of the mark is a business. An application can be filed before the mark is used in commerce if the owner intends to use it in commerce, but the United States Patent and Trademark Office (“USPTO”) will not register the trademark until the applicant shows that it is actually being used. A benefit of a trademark is that they do not expire, so long as the mark continues to be used in commerce and the owner files periodic documentation with the USPTO. The trademark application process is fairly simple, so oftentimes non-lawyer business owners will attempt it themselves, but actually obtaining the registered trademark can be tricky. Applications can be denied for a variety of reasons, such as the mark being “merely descriptive” of the goods or services it applies to, or a mark being considered too similar to an existing trademark in a similar industry (a “likelihood of confusion” according to the USPTO). The strongest trademarks are “fanciful and arbitrary,” meaning they are words that have no relation to the good or service sold (like Apple computers), and the second strongest trademarks are “suggestive” meaning they suggest the good or service without literally describing it (think, Facebook). Unfortunately, most people name their businesses something that describes their goods and services for marketing purposes (for example, “Northwest Construction”), so trademark registration may not possible. Exceptions to this rule are well-known businesses or those that have been in business for many years. A business can have a common law trademark (indicated by the ™ symbol instead of the ® symbol) without registering it with the USPTO just by using the mark in commerce, but there are benefits to federally registering. Inclusion in the national database deters others from using similar marks in similar industries. Also, there is a legal presumption that registrant was the first to use it, meaning that in a dispute with another business, it would be presumed to be the winner. Damages would also be presumed. A drawback to a common law trademark is that it is limited in geographic area, so you could have a competitor business open up with the same name in an entirely different state, as long as you did not share customers. If a competitor opens in your geographic area, and you sue them for common law trademark infringement, you would have to prove that they did damage to your mark and that you were the first to use the mark. If you’re thinking of protecting an element of your brand with a trademark, give Jesson & Rains a call!
0 Comments
By Attorney Edward Jesson
A question we frequently get from business owners, small and large alike, is whether they need to register their business in other states. The answer is, as usual, “it depends.” The process of registering your business in another state is often referred to as “Foreign Qualification”. While the laws vary from state to state, the following is a very general guide to whether you need to go through the foreign qualification process for your business. First of all, depending on the state, there can be serious ramifications for not registering your business in a specific state in which you are doing business. These can range from financial penalties to losing your business’s limited liability status, exposing you, as the individual owner, to liability in that state. In some states, it can also mean that, if your business is not properly qualified to do business in that state, your business is not permitted to bring legal action in that state. For example, if your business wished to enforce a contract in court in a state in where your business is not properly registered, your business may not be able to bring that lawsuit. To determine whether you need to go through the foreign qualification process, the important question you must ask yourself is whether your business is “doing business” in that state. Again, the rules on this from state to state vary, but there are some general things to look out for when asking yourself that question:
If you have questions about doing business with your LLC or corporation in another state, the attorneys at Jesson & Rains can assist you. By Attorney Kelly Jesson
This year, make a resolution to prioritize estate planning. Estate planning allows you to gain control and peace of mind over difficult and unpredictable situations. We have previously written about the difficulties caused by dying without a will in North Carolina and the pitfalls of the probate process in North Carolina; however, many of the “worst-case” scenarios can be avoided with proper planning. Let us help you make 2023 the year you plan for emergency scenarios and protect your business and personal assets for the benefit of your loved ones through estate planning. Unfortunately, COVID-19 has shown us that there are no guarantees, but it has also highlighted what is most important to each of us: family. Estate planning allows you to plan for what happens when you pass away, including naming a trusted person to handle your final affairs, name guardians for minor children, and distribute your assets according to your wishes. In addition to planning for death, our office drafts durable and health care powers of attorneys, where you can name agents to make both financial and medical decisions for you if you are incapacitated and cannot communicate. There is no reason to wait to do planning, and as the pandemic continues to be a part of our “new normal,” you should get a plan in place before it is ever needed. If you do become incapacitated or ill, it may be more difficult or impossible to get documents in place, as you must have testamentary capacity to create valid estate planning documents. Some of our clients delay estate planning because they do not have any friends or family members they trust to serve in fiduciary roles. In some circumstances, members of the firm may serve in these roles for the client if the client feels comfortable. It is better for you to take control and name someone yourself than to have the government appoint someone in an emergency or when you pass away. We want to help you take CONTROL in 2023! Please call Jesson & Rains if you have questions about getting your estate plan in order or updating an existing estate plan. While You Build, We Protect. By Attorney Edward Jesson
To the chagrin of many North Carolinians who believe they have been wronged, with very few exceptions, you need to have been actually “damaged” successfully bring a lawsuit against another party. While there are several types of damages available to litigants in North Carolina, in most cases, a plaintiff in a lawsuit will be seeking monetary damages. Monetary damages are, for the most part, meant to be compensatory in nature. The money damages that you may eventually be awarded are meant to compensate you, or “make you whole,” for the loss you have suffered. For example, what if you find a dead mouse in your McDonald’s sandwich? While shocking, unless you ate it and suffered illness or medical expenses, you would not be awarded much in court other than the cost of the sandwich – and who wants to pay a lawyer for that? Take an example where you believe that someone has made a slanderous or defamatory statement against you. Even if you could prove that the person made the statement and that it was false, that might not be enough to win your lawsuit. You would then need to prove that because of the defendant making that defamatory statement you were in some way monetarily damaged. It is very difficult to get non-economic damages, like emotional distress, in North Carolina. A plaintiff can be awarded what are known as nominal damages in North Carolina. These are damages that acknowledge that a defendant violated the law (for example, making a defamatory statement) but also acknowledge that no actual loss was suffered by the plaintiff in that situation. An example of nominal damages could be awarding a plaintiff $1.00 when the defendant made a defamatory statement. Yes, a defamatory statement was made, but the plaintiff did not suffer any real harm from that statement being made. And again, who wants to pay a lawyer for that? There are many other categories of damages that can be claimed in North Carolina, which are very dependent on the specific circumstances of the case. It is important, when discussing a lawsuit with an attorney, to discuss the damages portion up front to ensure that you have a reasonable expectation of what you may stand to gain (or lose) if the lawsuit does end up in front of a jury. It is not always enough that the potential defendant has violated the law if you cannot prove damages. The attorneys at Jesson & Rains can help guide you through what your options are if you feel that you may have a claim against another in a lawsuit. By Attorney Kelly Jesson
October is National Women’s Small Business Month. Jesson & Rains is proud to represent and work for numerous women-owned businesses. Charlotte is an exciting place for women entrepreneurs. As we previously reported, in 2018, it was named the “#1 City in America for Female-Owned Business Growth.” Women-owned business growth continued across the country in 2019. Unfortunately, due to the pandemic, Barbara Weltman reports that the number of women-owned businesses fell by 25% from February to April 2020. However, there are plenty of indications that women entrepreneurship is back on the rise. Participation in women’s networking groups and trade associations is key. Attorneys Kelly Jesson and Danielle Nodar are members of the following groups: National Association of Women Business Owners (NAWBO), Women Lawyers of Charlotte, National Association of Women in Construction (NAWIC), and Women in Networking. Please reach out to Kelly or Danielle if you’d like to drop in on a meeting one day! By Attorney Kelly Jesson
National Estate Planning Awareness Week was adopted in 2008 to help the public understand what estate planning is and why it is important for all people, not just the uber-rich. An “estate” does not necessarily mean something like the Biltmore Estate. Everyone has an estate, even small or insolvent estates. Estate planning is more than money – estate planning allows you to gain control and peace of mind over difficult and unpredictable situations. We have previously written about the difficulties caused by dying without a will in North Carolina and the pitfalls of the probate process in North Carolina; however, many of the “worst-case” scenarios can be avoided with proper planning. Let us help you plan for emergency scenarios and protect your business and personal assets for the benefit of your loved ones through estate planning. Unfortunately, COVID-19 has shown us that there are no guarantees, but it has also highlighted what is most important to each of us: family. Estate planning allows you to plan for what happens when you pass away, including naming a trusted person to handle your final affairs, name guardians for minor children, and distribute your assets according to your wishes. In addition to planning for death, our office drafts durable and health care powers of attorneys, where you can name agents to make both financial and medical decisions for you if you are incapacitated and cannot communicate. There is no reason to wait to do planning, and as we age and the pandemic continues to be a part of our “new normal,” you should get a plan in place before it is ever needed. If you do become incapacitated or ill, it may be more difficult or impossible to get documents in place, as you must have testamentary capacity to create valid estate planning documents. Some of our clients delay estate planning because they do not have any friends or family members they trust to serve in fiduciary roles. In some circumstances, members of the firm may serve in these roles for the client if the client feels comfortable. It is better for you to take control and name someone yourself than to have the government appoint someone in an emergency or when you pass away. National Estate Planning Awareness Week is a great time for you take CONTROL! Please call Jesson & Rains if you have questions about getting your estate plan in order or updating an existing estate plan. While You Build, We Protect. |
Subscribe to our newsletter.AuthorKelly Rains Jesson Categories
All
Archives
May 2024
|