State v Federal Trademark, what is the difference?

Posted on May 21, 2013 by Matthew Harrod

TMI recently had a client call my up to discuss their trademark they obtained prior to becoming our client.  As we began to speak, it became clear that the client only had a trademark registered with the State of Florida and not a federal trademark.  Why is this important?  Well for this client, it is very important.  The client has a business they are wishing to expand within the State of Florida but also to neighboring states and possibly throughout the country.

A trademark can be a word, a phrase, logo, brand or symbol that companies use to market their goods and services.  If it is used to market goods, then it is a trademark; if it is used to market services, it is a servicemark.

A state trademark protects your mark within the state you filed it.  To obtain a state trademark, you must actually be using the mark when you make your application with your state.  Local businesses will register their marks with the state as it is very easy to obtain and much cheaper than obtaining a federal trademark.

A federal trademark on the other hand protects your mark throughout the U.S. and many other countries.  So any business you may want to conduct which crosses over state lines, i.e. internet, you would want to file for a federal trademark to protect your intellectual property.

A state trademark is straightforward and cheap to obtain whereas a federal trademark can be expensive to obtain.  Many clients come in wanting to trademark multiple items and I tell them to just file one to make sure it goes through so that they do not waste money trying to obtain trademarks on multiple items that they may never obtain.

To learn more about filing a state or federal trademark, contact our business law attorneys at Wood, Atter & Wolf, P.A. located in Jacksonville and Ponte Vedra Beach, Florida.

Posted in Trademark Law | Leave a comment

What should you do if your website is copied?

Posted on April 29, 2013 by Matthew Harrod

980542_the_author_2In my last blog, I discussed the law behind website material and copyrights.  Quite often, with a little research, you may find that some of the material you have put on your website has been stolen.  So if that happens, what can you do?

The first thing you can do is send a cease and desist letter.  We typically send a series of them.  The first cease and desist should come from you.  It should be somewhat friendly and could state that they may not know but you have copyrights in your website material and they may have accidentally used it on their website.  This letter does however let them know you are aware of them and are watching them.  Give them a set date by which to change their website.  If they do not comply, then you should hire an attorney to write the next letter for you.  The attorneys letter will be more stern and aggressive.  Finally, the last letter, if needed, will come from the attorney with a set time frame in which they must comply or else.  Some attorneys, if the client is serious enough, will attached a copy of the complaint to be filed should they fail to change their website.

The above is the direct approach, but it is not the only approach.  You may also go after the website provider to have them remove the website.  If you go to whois.net, you can find out who is hosting the website.  By contacting them, you may be able to get the website taken down.  You can also file a complaint with Google and Facebook to have material taken down from their respective sites.  If you can show them that your website has been copied, they are usually very receptive to taking materials down from the web.

To learn more about protecting your website, please contact our business law attorneys at Wood, Atter & Wolf, P.A. located in Jacksonville and Ponte Vedra Beach, Florida.

Posted in Copyright Law, Intellectual Property & Licensing | Leave a comment

Copyrights, websites and pictures

Posted on April 12, 2013 by Matthew Harrod

980542_the_author_2I recently had a client contact me regarding their website materials being stolen and used by someone else.  In reviewing the situation, I found that the company was copying pictures and written materials directly from my client’s website.  When I contacted the company, they was under the assumption that you only got a copyright on published materials, such as books.  Of course that is wrong.

So what exactly is a copyright?  It is a right that gives the owner of creative works the ability to prevent others from using those creative works without prior authorization.  A copyright exists the very moment a creative work becomes tangible – can be seen, felt or heard.  The creator of the work owns the copyright.  If the copyright is infringed upon, the owner may seek monetary damages, seek an injunction and could also recover their attorney fees.

So when it comes to your website, it is always best to put a copyright notice at the bottom of the webpage, but it is not necessary.  A copyright notice should read as follows:  “(c) 2013 Matthew T. Harrod, Esq”.  It puts the world on notice that you own the materials on the website.

So back to my situation, when I spoke with the gentleman at the company, he was completely unaware of copyright law and my client’s rights in their work.  After speaking with him for a bit, he agreed to take down the pictures and change the content on his website so that he no longer infringes on my client’s rights.

If you are worried that your website is being copied, please give our business attorneys at Wood, Atter & Wolf, P. A. a call to discuss how we can protect your website content.

Posted in Copyright Law | Leave a comment

Looking To Change Jobs, It May Not Be As Easy As You Think

Posted on April 9, 2013 by Matthew Harrod

businessWell the economy is starting to turn for the better and jobs are starting to open up.  You may begin to think about changing jobs and possibly moving to a competing firm.  However, if you signed any contract or employment agreement when you first joined your current employer, it is very important that you have an attorney review those documents before you give your current employer notice of your leaving.  Below are several very common clauses that are found in employment agreements that need to be reviewed.  Failure to do everything correctly could cause you to have no job at all and in a legal battle with your former employer.

One of the first clauses to look for is the confidentiality clause.  A confidentiality clause states that you, as the employee, have been given confidential information in order to perform your job duties and that upon your leaving the company, you must give all that information back.  Further, you may not use any of the information in order to gain an advantage against your former employer with your new employer.  These types of clauses are quite common and easy to spot.

The next clause to look for is a non-solicitation clause.  This clause prevents you from either attempting to take customers of your former employer for a period of years or attempting to take employees with you from your former employer for a period of years.  This does not say that if a customer contacts you that you cannot talk to them.  It just states that you cannot contact the customer for a period of time.  So if the customers hunts you down to do business with you, you should be fine.

Finally, one of the most controversial clauses is the non-compete clause.  This clause states that you cannot take another job in the same industry (usually with a competitor) within a specific geographical territory for a specific period of time.  It is clear that Florida law allows these clauses in employment contracts.  However, the clause cannot be too broad or for too long.  Depending on who your employer is and what geographic area you covered while employed, the clause could be legally modified to fit your specific circumstances.  A clause that says you may not compete for 10 years within the U.S. when all you did with your former employer was deliver supplies within one county would deem to be too broad and could be judicially modified to protect your former employers legitimate business interests.  That is the key, the clause must protect a legitimate business interest.

Finally, you need to see if there are any agreements between your new and old employer.  Sometimes, one may be a vendor for the other.  If their business relationship has been put down onto paper with a signed contract, then there may be a non-solicitation agreement within their contract to prevent employees of one going to the other.  This happened to a recent client of mine.

So it is very important to go see a business law attorney if you have signed any agreement with your current employer.  To learn more about clauses within employment contracts, please set up a consultation with our business law attorneys at Wood, Atter & Wolf, P.A. to review any signed documents you may have.

 

Posted in Employment Law | Leave a comment

Questions To Think About When Determining Your Business Entity

Posted on April 4, 2013 by Matthew Harrod

QuestionsThere are many decisions to be made before you even open your business and determine your type of business entity.  With so many business entities to choose from and so many tax decisions to make, it is important that you answer the following questions to help you determine what type of business you want to be:

  1. What is the purpose of the business?  To manufacture something, to provide professional services, own real estate?  The business purpose of the business will go a long way in determining what type of business to create.
  2. How many owners will there be?
  3. Who will be the owners?  Are they US citizen, foreign individuals, current business entities?
  4. Will you need to raise money from outsiders or will the business be self-funded?  If outside investment is needed, depending on the amount, you may have to come up with solutions so you do not lose control of the entity.
  5. Who will run the business from a day-to-day perspective?
  6. How long do you want to be involved in the business?  Are you planning on doing this for just a short time, create it and then sell it, or in it for the long haul?
  7. Would you want to be in business with any of your co-owners’ families? If not, you will want to make sure there is a buy-sell agreement in place to formulate a buyout of a disabled or deceased owner’s ownership.

These are only a few questions to think about but they are important questions.  Answering those questions prior to seeing a professional will help the attorney or your tax professional decide what business entity is best for your needs.

To learn more about determining what business entity is best for you, setup a consultation with our business law attorneys at Wood, Atter & Wolf, P.A. located in Jacksonville and Ponte Vedra Beach, Florida.

Posted in Business Formation | Leave a comment

Annual Reports Are Due in Florida

Posted on April 1, 2013 by Matthew Harrod

stock-photo-2760185-corporate-sealIt is that time of year again.  Any business that was created in Florida or is registered as a foreign entity in Florida must file its annual report with the Secretary of State here in Florida.  The fee depends on the type of business you have.

The purpose of the annual report is to keep your information up to date with the Secretary of State. The type of information that must be provided is the business name, EIN of the business, the mailing address and principal place of business address (may be different than the mailing address), the registered agent of the business and either the officers of the business or the Board of Directors of the business.  Note that the owners of the business do not need to be listed.  This allows the owners of the business to remain unknown.

It is important to file your annual report now before May 1st.  On May 1st, the filing fee increases by $400 for all business entities.  Further, if you do not file your annual report at all, then the State of Florida will administratively dissolve the business in mid-September.  So if you want to maintain your business entity, make sure you pay your fee by mid-September, although it is much much cheaper to do so by May 1st.

At the same time you file your annual report with the State of Florida, it is also a great time to prepare the annual minutes for your corporate book.  The annual minutes is simply a document that ratifies all the decisions of the business that were made the previous year and re-elects Directors and Officers for the upcoming year.  If you do not have a corporate book, then please set up a consultation with me as soon as possible so that we may go over the importance of having a corporate book.

To learn more about filing your annual report and preparing your annual minutes, please contact our business law attorneys at Wood, Atter & Wolf, P.A. located in Jacksonville and Ponte Vedra Beach, Florida.

Posted in Management & Operations | Leave a comment

Tax tips for of small Florida businesses

Posted on March 26, 2013 by Matthew Harrod

taxesThese days, many small Florida businesses are running very thin to be able to keep the doors open and paychecks flowing.  Many small business owners that I meet with do not have a tax professional involved at all and prepare their own tax returns to save money.  However, as we all know, doing your own taxes is not always easy.  Sometimes the tax professional pays for themselves in the amount of taxes they save you (plus the cost of not having to worry about it yourself).  Some of you though will continue to prepare and file your own taxes.  For those that do, below are some tax tips for you to help save a little money:

  1.  Legal, tax, and IT fees:  The fees you pay to help set up a business and keep it running are usually fully deductible as business expenses.  However, if the expense could produce income in the future, then it must be spread over a period of years.
  2. Marketing expenses:  any money you spend to get your name out there for marketing purposes is generally tax deductible.
  3. Loan interest:  small businesses are usually initially funded with loans.  The IRS, generally, allows you to write-off interest on business loans just like they allow homeowners to write-off mortgage interest.
  4. Bad debt and theft:  These are write-offs against your income.
  5. Networking: Joining professional associations is a tax write-off.  Think of things you like to do and then find a professional association which encompasses that.  For instance, I like football so I joined the Gator Bowl Association.

To learn more about other tax tips for small business owners, please contact our business attorneys at Wood, Atter & Wolf, P.A. located in Jacksonville and Ponte Vedra Beach, Florida.

Posted in Business Tax Issues | Leave a comment

How does a Florida small business trademark a fictitious name?

Posted on March 21, 2013 by Matthew Harrod

TMTrademarking a fictitious name is very similar to trademarking any other name.  You must file an application with the USPTO.  The application can take anywhere from 6months to 1.5 years.  The timing is all dependent upon whether an office action is issued for the application and how long it takes to have a trademark examiner assigned to the application.

The more important part of trademarking a fictitious name is researching any previous use of the fictitious name.  Fictitious names are more often than not already being used by someone else somewhere.  So researching the fictitious name with the USPTO and doing a thorough Google search will go a long way to determine whether or not someone is using the fictitious name or something very similar to the fictitious name.  You must do both searches as one may not not pick up important information.

I recently did a trademark search using Google and it did not pick up the name at all but a search with the USPTO did.  I’ve had it happen vice versa as well.  So it may take a little extra money to protect your fictitious name just because it is typically something more commonly used in commerce than the business name.

To learn more about filing a trademark for a fictitious name and protecting your fictitious name, please contact our intellectual property attorneys at Wood, Atter & Wolf, P.A. located in Jacksonville and Ponte Vedra Beach, Florida.

Posted in Trademark Law | Leave a comment

What documents and filings are required for a fictitious name in Florida?

Posted on March 18, 2013 by Matthew Harrod

FloridaA Florida fictitious name is fairly straight forward to obtain.  There are basically two steps to obtaining a fictitious name in Florida, 1) file for the fictitious name and 2) publish it in a newspaper.

You first must apply with the State of Florida to use the fictitious name in the state.  You may go to www.sunbiz.org to electronically file for your fictitious name.  The filing fees are currently $50 and the filing lasts for 5 years.  Remember, that a fictitious name is only that, fictitious.  There may be other businesses within the State of Florida using the exact same name.  So using a fictitious name does not give you any protection for the use of the name, only a trademark does.  Using a fictitious name that has been trademarked by someone else could cause you to receive a cease and desist letter and force you to change your name.  This is why it is important to speak with an attorney prior to filing for your fictitious name.  You don’t want to start doing business under one name and have to spend more time and money changing the name of your business due to a trademark violation.

The next step is to publish your use of the fictitious name is a newspaper which is published in the county in which you intend to do business.  The costs of this varies based upon the fees charged by the newspaper.

Once you have the fictitious name, you may use it on your bank account, for marketing purposes, etc.  This is typically the name used by the business for publicity purposes.  Again, the fictitious name is the dba name shown.  So I could have MTH, LLC dba Matt’s Burgers and Shakes.  My fictitious name is Matt’s Burgers and Shakes.

To learn more about fictitious names in Florida, please contact our business law attorneys at Wood, Atter & Wolf, P.A. located in Jacksonville and Ponte Vedra, Florida.

Posted in Business Formation | Leave a comment

What are the benefits and consequences associated with a Florida professional association?

Posted on March 14, 2013 by Matthew Harrod

stock-photo-2760185-corporate-sealIn a previous blog, I discussed one of the benefits of being a Florida professional association as being that each of the shareholders in a Florida professional association are not personally liable for the malpractice of the other owners of the professional association.  Although it is by far the biggest benefit to having a Florida professional association, that is not the only benefit of being a professional association.  The benefits and consequences associated with a Florida professional association are as follows:

  1.  Tax flexibility.  A professional association can be taxed as a C corporation or an S corporation.  If a C corporation, the business can take higher deductions for health insurance and other medical expenses whereas an S corporation will save the owners social security and medicare taxes.
  2. Additional filing requirements.  Unlike a typical Florida corporation, a Florida professional association requires that a specific business purpose be included in the Articles of Incorporation.
  3. Shareholders must be licensed.  The shareholders of a Florida professional association must be licensed.  For example, the owners of a law firm must be licensed attorneys and not anyone else.

The Florida professional association, as long as it is created appropriately, offers additional asset protection to its owners – beyond that of what a typical Florida corporation would provide.

To learn more about a Florida professional association, please contact our business law attorneys at Wood, Atter & Wolf, P.A. located in Jacksonville and Ponte Vedra Beach, Florida.

Posted in Business Formation | Leave a comment

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