Business and Tax Lawyer Blog

Arguably the most versatile of the forms, the LLC is somewhat of a hybrid, in it allows for the management flexibility of a general partnership, but features the limited liability of a limited partnership. LLCs can be member-managed or manager-managed and no personal liability on behalf of the entity attaches. LLCs are taxed either pass-through or as a corporate entity. Florida requires the filing of articles of organization for LLCs.

The advantages of an LLC include: no shareholders, the option to operate like a partnership or elect one managing member, no personal liability for any of the members, and the option to choose tax treatment.

From my office in Jacksonville, Florida, to a corner store in Hawaii, you would be hard-pressed to find anyone in the 12-35 year old demographic who does not know Beyonce.

For all six of you who don't, here's a quick pop-culture review: a former member of the '90s R&B trio, "Destiny's Child," Beyonce released her first solo album in 2003. From there, her commercial appeal exploded. Her success as an entertainer includes:

- multiple movie roles, one of which earned her a Golden Globe nomination for her role on the big-screen adaptation of the Broadway hit, "Dreamgirls;"

- endorsement contracts for Pepsi, L'Oreal, and Tommy Hilfiger; and

- bragging rights for being crowned as the first non-model and non-athlete woman to grace the cover "Sports Illustrated Swimsuit Issue."

Why would Beyonce, whose name is a registered trademark with incredible brand name recognition, suddenly want to change her name to "Sasha Fierce?"

Beyonce wants to be known by the name of her alter ego, whom she describes as: "the fun, more sensual, more aggressive, more outspoken side and more glamorous side that comes out when I'm working and when I'm on the stage."

In all seriousness, my question remains, "Why?" I am skeptical that Beyonce wants to change her name for personal reasons. I think "Sasha Fierce" has much more aggressive connotations, but what it makes up for in vamped up sex appeal, it lacks in sincerity. I also imagine that the name change is an attempt to market a whole new line of products, cuing consumers to fear being associated with a brand that was SO five minutes ago.

This Pseudonym Movement has been done by other artists, often as an early indication of the demise of their popularity. These celebrities panic to re-create themselves, rather than attempt a come-back in the more-distant future. For example, Prince became "The Artist Formerly Known as Prince." Puff Daddy has been known as P. Diddy, Sean Combs, and Sean John. And in the extreme, Garth Brooks took a walk on the rock side as his alter ego, Chris Gaines.

My advice to Beyonce would be to stick with what works. People around the world envy her talent and career opportunities. Be greatful and proud of who she is, and the brand that she has become. Leave re-inventing the wheel to the has-beens.

Go ahead, roll your eyes. I am. And I'm synchronizing it with an annoyed sigh and a defeated slouch. As irritating / overrated / superficial / predictable / contrived / insincere / underwhelming as Paris Hilton is, I have to give the girl credit for this undeniable irony: the emaciated "celebutante" consistently manages to shove her brand name down the American consumer's throat.

Get this: the goods and services identified by the "PARIS HILTON" trademark (Reg. #3249904) includes "conducting parties in nightclubs" and "personal appearances by a media celebrity."

Other (so-called) notable Paris Hilton trademarks:

- her initials, as a logo

- the logo for her perfume

- the title, "Paris Hilton's My New BFF" for her new MTV reality show, where contestants vie for for the coveted title of Paris' new best friend

- And who could show their face in public without Paris' signature stamp of approval: "THAT'S HOT" (Ser. #77163240)

Which celebrity would you like to see on my Celebrity Trademarks spotlight? Have you wondered whether your name or image is eligible for trademark registration? Ask me.

A "C" Corporation requires the issuance of shares and the election of a board of directors. There is no personal liability incurred by the shareholders, directors, or officers for actions by the corporation. "C" Corporations are subject to double taxation, since the corporate entity pays taxes on its income, and dividends to shareholders are also taxed. To form a "C" Corporation, a multitude of state filing formalities are involved.

The advantages of a "C" Corporation are: the ability to raise large sums of capital, management begins with the shareholders who select directors who then choose officers, and no personal liability. The disadvantages associated with a "C" Corporation are double taxation, articles of incorporation must be filed with the state and statutory rules of operation.

A "S" Corporation is the same as a "C" Corporation except that is gets "pass through" tax treatment. Formalities are generally the same as a "C" Corporation but there are additional criteria limitations such as the number of shareholders, and citizenship requirements.

LLPs allow for all of the partners to share in management, and in case liability arises (for malpractice or negligence only), the offending partner is personally liable. Just like any other partnership, LLPs have pass-through taxation. Forming an LLP requires a certified registration.

The advantages of the LLP are: all partners can participate in the management of the company, no personal liability on any of the individuals (with the exception of malpractice or negligence), and taxation passes through to the individual.

The disadvantage of the LLP is the mandatory state registration.

In a limited partnership, there are two classes of partners: general and limited.

The general partner is the one who runs and manages the business, oversees the day-to-day operations, and incurs personal liability on behalf of the partnership. The limited partner is simply a silent investor who typically has no management functions, and is liable on behalf of the partnership only to the extent of the amounts of money invested.

A limited partnership also features "pass through" tax treatment. For a limited partnership, a certificate of limited partnership must be filed. Limited partnerships can also be formed with a corporate general partner. What this means is that the partnership can be formed between an individual and a corporate entity. When in this form, Florida law allows the limited partners to engage in management, but by engaging in management, the limited partners incur personal liability. When a partnership involves a corporate general partner, a certificate of registration must be filed with the state.

The advantage of a Limited Partnership is that there is no liability to the limited partners for financial shortages outside of initial principal.

The disadvantages of a Limited Partnership are that the general partner is liable for any financial shortages outside of the initial principal, and the general partner bears all the risk but no liability beyond his own assets.

In a general partnership, agency theory applies wherein each of the partners can bind the entire partnership. Each partner also incurs personal liability, but benefits from what is termed "pass through" tax treatment. "Pass through" tax treatment means that although the partnership files an information sheet with the state, income passes through the entity and is taxed via each partner's individual tax return. A partnership requires some form of an agreement (in writing or oral) but this document does not have to be filed with the state.

The advantages of general partnerships include: no individual liability, taxation passes through to the individual and the entity itself is not taxed, flexibility to expand the scope of the business, the ability to spread losses, and no filing formalities involved.

The disadvantages are that the you may be liable for others, management control is divided, and others can speak for you and bind the partnership.

The sole proprietorship is owner-managed and is suitable for a single-owner/employee enterprise. The owner/employee faces total personal liability but is taxed personally via their individual income tax return. Although there are no structural formalities within a sole proprietorship, the name of the operation should be registered with the state.

The advantages of Sole Proprietorship are low start up costs, no double taxation (i.e. taxing the individual and the business), no liability for others, no profit sharing, and complete control over operations.

The disadvantages of Sole Proprietorships are that the owner incurs personal liability and can be thin on management.

Before registering a business, every new business owner is confronted with the task of deciding what business form/entity to use.

Well, the basic common business forms come in 6 flavors. They are the sole proprietorship, the general partnership, limited partnership, limited liability partnership (LLP), limited liability company (LLC), and the Corporation.

This is the first in a seven-part series, where I will provide a brief introduction to the options that best suits a business owner's needs.

Recently, at the Florida Coastal School of Law campus in Jacksonville, Florida, law professor, Carolyn Herman and patent attorney, Clark Wilson, presented a seminar entitled, "Identifying Intellectual Property Issues for the General Practitioner." It was a succinct presentation covering patent, trademark, and copyright laws.

This is the second annual presentation of this seminar, which was given in conjunction with Florida Coastal's Alumni Weekend celebration. I recommend this seminar to attorneys, business executives, entrepreneurs, and inventors alike, and would encourage anyone interested in attending to sign up for the seminar again next year.

How did powdered urine, an artificial penis, and a jock strap have two California entrepreneurs likely to plead guilty to charges of conspiracy to defraud the government?

When those items are the "Whizzinator" and "Number 1," which have been put together to help government employees pass drug tests, that's how.

It has been reported that a truck driver for the Department of Transportation beat mandatory drug testing by using these proxy pee products. In another instance, a Whizzinator customer allegedly used this product to pass a probation officer's drug test.

I was not able to confirm that there was a patent filed for this invention. Assuming that this invention is novel and unobvious (the two most basic requirements for an invention to be patentable), I can't help but wonder: does the use of this invention threaten national security if government employees in certain positions are trying to beat a drug test? If so, it could mean that an application was filed, but the government issued a secrecy order, preventing the publication typical of most patent applications. Specifically, Sec. 115 of the Manual of Patent Examining Procedures states:

If the agency concludes that disclosure of the invention would be detrimental to the national security, a secrecy order is recommended to the Commissioner for Patents. The Commissioner then issues a Secrecy Order and withholds the publication of the application or the grant of a patent for such period as the national interest requires.

I did, however, see that the term "Whizzinator" is a federally registered trademark (Reg. #2782181).

In spite of the registered trademark, prosecutors are seeking to take control of the Internet domain names, http://www.whizzinator.com/ and http://www.gonumber1.com/. Check them out while you can!

In 2007, President George W. Bush awarded eight individuals and corporations with the 2007 National Medal of Technology and Innovation at a lavish White House ceremony.

This annual award is the highest honor the President can confer upon an American citizen for innovative contributions and achievements. The medal can be awarded to persons, organizations, or corporations. The first awards were granted in 1985 by President Regan.

The list of recipients includes: AT&T, David Packard (of Hewlett-Packard), The DuPont Company, Bill Gates, Merck & Co., Proctor & Gamble, 3M, Johnson & Johnson, IBM, Motorola, Xerox, and eBay.

Two years ago, the managing partner of my law firm bought me my first set of golf clubs, had them personalized for me, and hooked me up with private lessons. Little did he know: he created a monster.

It doesn't take a golf fanatic to appreciate that Tiger Woods could very well be the greatest golfer in history. But it's not just his game on the course that makes him a multi-millionaire--"Tiger Woods" as a brand name is worth millions in endorsing goods and services.

The name, "Tiger Woods," as a trademark, has been used since 1997 to identify golf gear and athletic apparel (Reg. #2306354). But that's just the beginning of the list of trademarks in Tiger's name; here's more:

- his autograph

Politicians made the rounds in Jacksonville, Florida during 2008, promoting their campaigns. In a country where corporate powerhouses like Napster have made headlines for prosecuting teenagers who download music without permission or payment, could presidential candidates McCain or Obama be accused of a similar transgression?

Apparently so. The band, the Foo Fighters, has accused McCain of misappropriating their song, "Hero," for the purpose of promoting his campaign. Similarly, Obama has been under fire for using the legendary song, "Soul Man" without Sam Moore's permission.

Even McCain's running-mate and co-maverick, Sarah Palin, has been in cahoots with the band, Heart, for the use of the song, "Barracuda." If Heart has not been compensated for the use of their hard-driving rock song, they should be! Association with the song has given birth to a pop culture brand name. This has parleed into an entire line of "Sarahcuda" products, the intent of which are obviously to promote Palin.

Copyright misappropriation is theft. Because I represent musicians, most of whom are garage bands and independent artists, I do a lot of advising as to proper channels to get permission for using the music and lyrics of popular artists. On the flip side, I also stand up for these "lone voices," when they feel that another artist has misappropriated their work. My name is Jo-Anne Yau, and I approved this message.

I recently presented my seminar, "From Emblems to Empires: Using Trademarks to Promote, Protect, and Produce Business." The audience were the members of IMPACTJax, a young professionals' group that is part of the Jacksonville Regional Chamber of Commerce.

I discussed the importance of promoting a business name by building a brand name. The goodwill and reputation should then be protected through trademark or patent registration. Only then can defensive and offensive strategies have any teeth against potential infringers. Once a business achieves a level of success with those trademarked or patented assets, I explain why franchising the operation is among other options for expanding the business. In the alternative, for entrepreneurs interested in minimizing the risk of owning a business, I also discuss the advantages of buying a franchise.

Couldn't make it to the original presentation? Contact me to see when this seminar will be presented at a venue near you.

The "secondary meaning" concept is critically intertwined with trademarks and trademark law.

Secondary meaning occurs when a trademark achieves a meaning to consumers associated with the goods or services it identifies.

For example, the primary meaning of the word, "zoom" can be defined as "to move quickly," or "to get a closer look at something." However, when used as "Zoom Zoom," consumers easily associate the slogan as identifying Mazda vehicles. Therefore, "Zoom Zoom" has achieved secondary meaning with the public, because of their association of the phrase with the Mazda brand name.

The stronger the trademark's secondary meaning, the stronger the trademark becomes when disputes arise involving ownership or use of the mark. These disputes typically arise in the form of cease and desist notices, or Complaints filed in court, alleging infringement, dilution, unfair trade practices, consumer confusion, etc.

Finally, a movie that depicts the struggles of "garage inventors," the innovators who make up most of my patent clients. These are the ones who tinker with inventions in the evenings and on weekends, until one day, an invention is born.

"Flash of Genius," starring Greg Kinnear, is based on the true story of Robert Kearns, who, in the 1960's, invented the intermittent windshield wiper for automobiles. Among the hurdles he faces are the high cost of protecting his invention with a patent, and infringement by the automobile industry. The movie is about Kearns' resolve to take on corporate giants through litigation, and assert his rights as the inventor.

"Flash of Genius" was released on October 3, 2008.

Go ahead, call me conservative. So what if I waited for the reviews in "Flash of Genius" to come out before shelling out $15. And $12.50 for popcorn and a drink. Looks like my fence-riding might have saved me the cash I could use instead on buying 4 gallons of gas.

Viewers who enjoyed the movie included inventors who could relate to the trials and triumphs of their trade. If anything then, real-life inventors appreciated the accurate portrayal of the challenges they face.

Those who didn't sing praises, however, included movie critics who felt the film lacked the pizzazz that today's audience demands from big-screen Hollywood.

While I may have missed the movie this weekend, if it sticks around the theaters long enough, maybe I'll catch it next weekend. Or catch it when it comes out on TV. Without the trek to the theater, that ought to save me another gallon of gas.

Federal statutes governing trademark laws are found under the Lanham Act (Title 15 of the U.S. Code). The federal statutes are extensive, providing definitions, detailing procedures, and laying out remedies for aggrieved parties. Disputes under the Lanham Act are brought under federal court.

In addition to these statutes, common law and state statutes also govern trademark laws. Common law is the body of law defined by the courts, and detailed research may be required to find the answers to the questions you are looking for. In addition, each state sets forth its own statutes, and its own courts have jurisdiction to resolve disputes. For example, statutes governing Florida trademarks are set forth in Florida Statutes Chapter 495.

It is important to note that the attorney representing you in state or federal court must be admitted to practice in that particular court or jurisdicition.

CNNMoney.com offers an interesting set of financial planning articles called Money 101. One of their recent lessons covered estate planning. They broke down the basics into ten facts about estate planning everyone should know:

1. Estate planning is not just for the wealthy. Everyone should have a basic estate plan in place so that their financial wishes are carried out after they pass on.

2. An estate plan consists of several elements. These may include a will, power of attorney, a living will, or a trust.

3. Start by taking an inventory of all of your assets. Include investments, retirement accounts, insurance policies, and property and business interests.

4. Everyone should have a will. Dying without a will in place can be very costly for your heirs and gives you no say in what happens to your assets. If you have minor children, a will should designate who will take care of them.

5. Trusts are not just for wealthy people. Trusts can help reduce estate and gift taxes.

6. Discuss your estate plans with those who are affected by them. Being clear about what you intend can dispel conflicts later on.

7. Keep an eye on the federal estate tax rate and exemption. So far in 2010, the estate tax has been suspended, but Congress may still pass a law for 2010. Even if they don't, the tax will be reinstated in 2011 at a higher rate, and with a lower exemption than in 2009.

8. Leaving all of your assets to your spouse is tax free, but not necessarily a good idea. This can increase the taxes your children pay after your spouse passes.

9. Give tax free gifts to decrease your estate while you are still living. You can give up to $13,000 ($26,000 if married) to an individual each year. You may also pay an unlimited amount of medical and educational bills, as long as they are paid directly to the provider.

10. Consider leaving money to your favorite charity.

You can read more details of each of these points at Lesson 21: Estate Planning.

If you live in the Jacksonville, Florida area or North Florida and require assistance with estate planning, please contact our firm for estate planning legal counsel.

If a distinct logo, name, or slogan is used to identify goods or services, the first one to use that trademark is entitled to ownership of that trademark. However, the rights associated with ownership of that mark are limited.

It is thus highly recommended to register the trademark. For a reasonable filing fee, registration offers many other benefits to the owner. Examples include the right to sue for infringement, and getting the clock ticking on the five-year wait before the trademark achieves an "incontestable" status.

Whether offering goods or services at a local or world-wide level, registering a trademark is always recommended. So where should a business begin this process?

If doing business in only one state, then trademark registration should be done with the Department of State. This is true for small businesses and growing chains alike.

Once a business markets and promotes to consumers across state lines, it becomes eligible for federal trademark registration at the U.S. Patent & Trademark Office. This has been an integral step in business growth and franchising. However, it is recommended that the trademarks are also registered at the state level where the business is conducted. In the event that a competitor infringes upon that trademark, then remedies at both the state and federal level may be available.

Despite the fact that there is no such thing as an "international trademark," filing an application for a U.S. trademark can lay the foundation for applying for trademark registration in other countries. There are procedural requirments involved, so consultation with a trademark attorney is advised.

In order for your trademarks to be eligible for registration at the U.S. Patent & Trademark Office, your goods or services must be offered to consumers in more than one state. This is an easier endeavor for businesses with high visibility and high accessibility to the public, like restaurants, gas stations, hotels, etc. However, internet sales and marketing across state lines can qualify as doing "interstate commerce."

For businesses catering only to their home state, they ought to register their trademarks at the state level.

When considering a trademark to identify your goods or services, it is always a good idea to see if that trademark is already in use by someone else, and to what extent this trademark is being used. This is particularly important if that other party is a direct competitor.

This is done by doing a trademark search. The U.S. Patent & Trademark Office has a database, as do most Departments of State. However, other databases and resources should be checked as well. This is because the proper owner of a trademark is not the first party to file for registration, but the first one to use it in commerce.

Trademark searches can be performed by a attorney or by private firms that specialize in this service. In any event, find a professional competent in trademark searches to perform this service for you.

No. Anyone can file their own trademark registrations, but it is highly recommended that you seek legal advice to help you with the process. This is because a trademark lawyer will be familiar with procedural and substantive requirements of filing an application for registration. Having an attorney help you can save time, money, and potentially, grief involved in the application process.

Are collective marks considered to be trademarks? They sure are. Collective marks are used by unions, organizations, and other types of associations to identify membership in that group. Collective marks can be logos, slogans, or names.

Examples of collective marks include the logo for the Fraternal Order of Police, and the name "Boys and Girls Club of America."

As with all trademarks, it is strongly recommended to register a collective mark with state or federal trademark offices.

When you have a trade secret, nothing is more important than keeping it secret.

Arguably the most famous recipe in the restaurant industry, the Colonel's secret recipe with 11 herbs and spices is written on a piece of paper kept in a vault at their corporate offices. The yellowing sheet of notebook paper, handwritten by the Colonel himself, however, had to be transported this week to a temporary location for safekeeping while KFC beefed up security. Transportation security measures included bodyguards for the recipe and handcuffing the briefcase containing the recipe to KFC's president.

Much ado about nothing? Not at all. If the holders of a trade secret fail to take reasonable measures to maintain the secrecy, the value of their secret will be lost if the details are publicized.

I specifically discussed the KFC secret recipe in a recent article published in the Jacksonville Business Journal. The value of the KFC franchise, an internationally recognized business, comes from exclusive access to the recipe, which arrives prepared and ready to be used by the restaurant.

American citizenship is not required to file for trademark registration in the U.S. The basic requirements are that the applicant is using the mark in association with goods and services across state lines, and that the mark is not infringing on the mark of another.

There is technically no such thing as an "international trademark." To secure trademark protection in other countries, an application must be filed in those countries. That process can begin with filing a U.S. trademark application.

While registering your trademark is not mandatory, registration offers many advantages. The following only scratch the surface at the benefits of trademark registration:

It gives notice to the public and to your competitors that you claim ownership of the trademark. An owner of a registered trademark is presumed to be the rightful owner, unless proven otherwise.

If someone else tries to use the same or a similar trademark, you can then assert your ownership rights. This can be accomplished by sending a cease and desist letter or filing a claim for infringement.

You can allow others to use your trademark by licensing the rights to use your trademarks. You can control the way your trademark is used: for particular purposes, in certain places, or for a given length of time. This strategy is fundamental in business growth, business development, and franchising.

Registration with the U.S. Patent & Trademark Office provides a basis for you to apply for trademark registration in other countries. On a related note, you can prevent infringing foreign goods from being imported.

Service marks are names, logos, slogans, and other marks that identify the source of a service. Legally, they are the same as a trademark, which is a mark that identifies the source of goods. The terms "service mark" and "trademarks" are often used interchangeably.

While the "SM" symbol is sometimes used to denote a service mark, "TM" will do just as well. However, once registered with the U.S. Patent & Trademark Office, the "R" symbol is used.

Often, businesses will have both service marks and trademarks. For example, visitors at Disney theme parks who want to avoid the long line for attractions can make a reservation, and get whisked to the front of the line at their designated time. Disney named this service, "FASTPASS," which is a registered service mark. On the other hand the mark, "Mickey Mouse" has been in use since the 1930s, to identify goods like cartoons and comic strips.

Martin Luther King III, Bernice King and Dexter King are the children of slain civil rights leader, Martin Luther King Jr. The three continue to control their father's estate as a private corporation called King Inc. Recently, Martin III and Bernice King accused Dexter King of acting improperly as the head of their father's estate. They charge that he has shut them out of decisions about King Inc. and has not held a shareholder's meeting in over five years. The tension over the business has damaged their relationship.

Under the threat of a civil trial, which would have made certain personal and financial details about King Inc. public record, the three met recently to negotiate a settlement. After fourteen hours of discussion, they came to an agreement and will not be taking the case to a public jury trial.

Good estate planning can cut down on misunderstandings and help keep family ties strong. If you live in the Jacksonville, Florida area or North Florida and require assistance with estate planning, please contact our firm for estate planning legal counsel.

Read more about the disagreement among Martin Luther King Jr.'s heirs at King Siblings Settle Lawsuit Over Estate.

Mel Simon was the founder of Simon Property Group, Inc., which is the largest owner of shopping malls in the US. His daughter, Deborah Simon, recently filed court papers alleging that her father was coerced into changing his estate plan to dramatically increase the amount of his fortune going to Deborah Simon' stepmother, Bren Simon. Simon died in late 2009.

Deborah Simon charges that her father was so ill when the new papers were drafted that someone had to hold a pen in her father's hand and move it for him to "sign" the documents. According to court documents, Simon was suffering from dementia and neurological disorders "that impaired his language, reading, writing, cognition, memory and understanding" at the time the new will was signed.

The previous estate plan had been in effect for more than ten years before Simon's death. The old estate plan divided Simon's estate between Bren Simon, a charitable trust and Simon's three children. The new estate plan calls for half of the estate to go to Bren Simon, and the other half to go to Bren Simon as a marital trust with Bren Simon as the sole beneficiary.

There was no comment from Bren Simon or her attorneys about the matter. You can read more details of this story at Simon daughter sues shopping mall magnate's widow over will.

If you live in the Jacksonville, Florida area or North Florida and require assistance with estate planning, please contact our firm for estate planning legal counsel.

Under current US tax law, the federal estate tax was scheduled to be suspended in 2010. The US House of Representatives voted recently to permanently extend the current rare along with the $3.5 million per person exclusion; the US Senate has rejected a measure that would have extended it. It is expected that the Senate will look at the issue again early in 2010. Additionally, any law passed would most likely take effect retroactively, meaning that the IRS will take its share of any estates originated in 2010, starting with January 1st no matter when the legislation finally passes.

There is a chance that the Senate will be unable to come to an agreement, and any estates originating in 2010 will not be subject to federal estate tax. If this happens, heirs will still need to pay state estate taxes. They will also need to take into account the fact that any assets will be limited in their step-up in basis, which means that heirs may have to pay higher capital gains taxes. And if congress fails to take action in 2010, the estate tax will rise to fifty-five percent on all estates over $1 million in value in 2011.

Even if there will be no estate tax in 2010, estate planning is still important. Asset protection, disposition of retirement assets, family and charitable gifts and business secession plans are still critical aspects of good estate planning that need to take place whether there will be an estate tax in 2010 or not.

Estate planning is a complicated matter that requires the assistance of a professional estate planning attorney. If you live in the Jacksonville, Florida area or North Florida and require assistance with estate planning, please contact our firm for estate planning legal counsel.

Find out more about this story at Beating the estate tax to death.

Jack Kerouac died of chronic alcoholism over forty years ago in St. Petersburg, Florida. When he died he left his estate, worth around $30,000, to his mother, Gabrielle Kerouac. When she died, her will left everything to Jack Kerouac's third wife, Stella Kerouac, who in turn left all of his possessions to her siblings when she passed away in 1990. But Kerouac's nephew, Paul Blake Jr. contested the will, saying that his uncle promised that he would get something when Gabrielle Kerouac died.

Since Kerouac's possessions are now fetching a hefty sum – the scroll manuscript for Kerouac's "On the Road" was purchased for $2.43 million – determining the legality of Gabrielle Kerouac's will is no trivial matter. After one of the longest running probate battles in Pinellas County, Florida court history, Judge George Greer has declared that the will purportedly signed by Kerouac's mother is a forgery. He cited handwriting analysis and doctor's testimony as factors in his decision. The ownership of Kerouac's twenty million dollar estate is now in question. It is currently under the control of Stella Kerouac's brother, John Sampas.

Blake's claim to any part of the estate may be bolstered by a letter he received from his uncle many years ago, which read: "I just want to leave my estate . . . to someone directly connected with the last remaining drop of my direct blood line . . . and not to leave a ding-blasted . . . thing to my wife's one hundred Greek relatives." You can read the whole story about the will at Pinellas judge rules will for Jack Kerouac's estate is a forgery.

If Jack Kerouac himself had made clearer estate planning arrangements for the disposition of his estate, his heirs may have avoided years of litigation. If you live in the Jacksonville, Florida or Orlando, Florida area and require assistance with estate planning, please contact our firm for estate planning legal counsel.

"Can I get a patent on an invention that combines two or more old inventions?"

The answer depends on whether combining existing inventions creates new and unexpected results. This satisfies the U.S. Patent & Trademark Office's requirement that an invention be novel and unobvious. Novelty and unobviousness can be achieved if the components cooperate to achieve a benefit that the components could not achieve alone.

For example, combining a pencil with an eraser on the end offers the benefit of writing compositions faster than if the pencil and eraser were separate components. The advantages of the pencil cooperate with the advantages of the eraser to provide an additional benefit when they are combined.

However, the combination of your toothbrush, your comb, and your nail clippers do not cooperate to offer something more than if you used each item individually.

In effect, if your creation involves combining separate inventions, you could be eligible for patent registration if your invention as a whole offers more benefits than do the sum of its parts.

Businesses often use their business name to create a logo. Both the name and the logo are trademarks identifying goods and/or services. Should they be filed on the same trademark application?

No. Even if the logo is a stylistic version of the business name, if they can be used separately, they should each be filed on separate trademark applications. Filing an application for the logo protects only the graphic representation of the business name. To protect the business name itself, separate trademark registration will protect the use of that name, regardless of the font, color, or manner in which the business name is being presented.

It might seem like getting any advantage from the 2010 estate tax lapse would have to mean losing a loved one.  But those in a position to dole out some cash while still alive – and their recipients – will be able to benefit as well. When the estate tax was suspended on January 1^st, 2010, the gift tax rate also fell from 45% to 35%. Barring congressional action it will go back up to 55% come 2011.

That means that those deciding to make taxable gifts this year can potentially save their loved ones a great deal of money on taxes. The Congressional Budget Office has predicted that a rush of wealthy people bestowing taxable gifts on their heirs may cause gift tax income to the federal government to increase tenfold this year. Unfortunately, the congress still has the option to reinstate the estate and gift taxes at any rate they see fit, and they can do so retroactively. However, a carefully constructed estate plan can still help you maximize your tax savings no matter what the congress decides to do.

In order to benefit from this unprecedented opportunity, people will need to take fast action to creatively plan and draft trust provisions that minimize the tax burden on their heirs. If you live in the Jacksonville, Florida area, please contact an estate planning attorney for estate planning and gifting legal counsel. 

Read more details about how to minimize estate and gift taxes at Estate Tax Lapse Helps Healthy Rich.

Karen Davidson, the widow of Detroit Pistons owner, William Davidson, is locked in a legal battle over late husband's estate. At issue is the fact that Ms. Davidson is rapidly selling off or attempting to sell off assets from the estate, while Milestones Upgrading & Industries, Co. is claiming that Davidson's estate reneged on a $15 million investment that Davidson pledged to make in the Israeli company. Davidson's will, which he signed one week before his death, left his estate to just three beneficiaries; Karen Davidson and his two children, Ethan Davidson and Marla Davidson Karimipour.

According to court papers, Milestones & Upgrading Industries was founded by Davidson and a long-time friend, Brigadier General Oded Tyrah, with the purpose of investing venture capital in medium sized Israeli companies. The suit claims that a dispute among the beneficiaries of Davidson's estate has prevented the company from receiving the funds it was promised. A Jewish philanthropic group has also filed a $5 million claim against the estate. The group, Areivim, was also founded by Davidson and was allegedly denied promised funds after Davidson's death.

Ms. Davidson has said that she regrets that the issues surrounding her late husband's estate could not be settled amicably. Read more about the estate troubles of William Davidson at Estate of Pistons owner mired in legal battles.

If you live in the Jacksonville, Florida or Orlando, Florida area and require assistance with estate planning, please contact Wood, Atter & Wolf, P.A. for estate planning legal counsel.

When Brooke Astor passed away, she left a huge fortune behind. According to a New York jury, her son, Anthony Marshall, committed fraud and grand larceny by, among other things, giving himself a $1 million raise to manage his mother's finances. Marshall was found guilty on fourteen counts, and is appealing the jury's decision. This high profile case can serve as a warning to Florida families to make sure they get their estate planning documents in order before tragedy strikes.

In the Astor case, a financial power of attorney was used to give Anthony Marshall extraordinary powers over his mother's finances. This common estate planning document is designed to allow another, trusted person to step into your shoes and handle your financial affairs should you become unable to do so. These financial affairs may include such mundane tasks as handling your bank accounts and paying your bills, but could also include changing the beneficiary of your life insurance and retirement accounts.

Many states have been busy rewriting their financial power of attorney laws in recent years, to prevent occurences like the Astor debacle. Florida is not one of them, but an estate planning attorney can help you draft a document that would protect your interests from an unscrupulous agent. Spelling everything out in writing will reduce opportunities for abuse.

No matter where you live, don't let other families' horror stories keep you from executing proper estate planning, including signing a financial power of attorney. If you don't have one of these important documents and you become incapacitated, a judge will appoint someone to manage your affairs, and you will have no say in the decision. Get more tips about how to protect your estate at Protect Your Assets: Write A Safe Power Of Attorney.

If you require assistance with estate planning, please contact an estate planning attorney for estate planning legal counsel.

Business groups have been pressing Florida state lawmakers to help them repeal an increase in the federal unemployment tax; Florida House democrats seemed inclined to help them.  Representative Ron Sanders, a democrat representing Key West, said that House democrats will send a proposal to President Barack Obama, asking him to erase the tax hike. Sanders noted that "there can be no better stimulus than keeping our small businesses going."

Some of the organizations leading the effort to get rid of the tax include the Florida Retail Federation, National Federation of Independent Business, and the Florida Chamber of Commerce. They are asking the federal government to roll back the tax hike and to lend Florida the money it needs to replenish the unemployment fund that currently pays benefits to nearly 1 million unemployed Floridians.

Florida House and Senate republicans told reporters that an outright repeal of the tax hike is not very likely, but that they appreciate any help the democrats can give them. Florida currently has an 11.5 percent unemployment rate, the highest the state has seen for thirty six years. Since August the state has borrowed $839 million from the federal government to pay unemployment benefits to its citizens. With tax bills due in the spring, observers are worried that the tax hike may lead to further layoffs. Read more about the unemployment tax hike and its effect on Florida business owners at Democrats Want Feds to Ease Unemployment Tax Hike.

How will the tax hike affect your Florida business? If you live in the Jacksonville, Florida or Orlando, Florida area and require assistance with business or personal tax planning, please contact our firm for tax planning legal counsel.

Even with expert tax planning, Florida taxpayers should be aware of the top five tax deductions and credits most people miss when filing their returns. These include:

1. Tax preparation and financial planning fees: Buying tax books, tax software or visiting a tax preparer are all deductible expenses. Financial planning fees, but not commissions, are also deductible. These are itemized deductions.
2. Work safety equipment and apparel: If you work for a company that expects you to provide your own safety equipment, and you use these items solely at work, you can itemize the expenses as a deduction. This may be of particular interest to Jacksonville, Florida military personnel, who frequently pay out-of-pocket for gear they cannot use while off-duty.
3. Taking care of other people's children: These tax credits can include adoption, foster care or even hosting an exchange student. These credits can be complex, so it is important to consult a tax professional before taking one.
4. Savings bond interest: Savings bonds used to pay college tuition or those placed in a Covedell or 529 college savings plan will not be taxed on interest provided the individuals meet IRS income guidelines. Series EE and I bond interest gains do not have do not have to be claimed until the bonds are spent, disposed of or matured.
5. Local and state income tax: Forty three states allow residents to deduct state and local income taxes paid on necessities like a home purchase. Florida residents may use a standard formula if they cannot determine their exact expenditures for the year.

Along with proper tax planning, an understanding of available deductions and credits can help minimize your tax bill come April 15^th. To read even more tips, visit The 10 Most Obscure Tax Deductions You Should be Using this Year.Many tax deductions and credits have complicated requirements and require the assistance of a qualified tax professional. If you live in the Jacksonville, Florida or Orlando, Florida area and require assistance with tax planning, please contact our firm for tax planning legal counsel.

Florida's chief financial officer and Democratic gubernatorial candidate, Alex Sink, told reporters recently that she's "not sold" on Republican plans to cut Florida's corporate income tax. The tax is currently 5.5% and generates $1.7 billion per year in revenue for the state. Ms. Sink pointed to the tough budget situation in Florida, and said she wondered where Florida would get the funds to replace the lost tax revenue. She added that Florida already has a comparatively low business tax rate. She finished by saying that Florida businesses have a responsibility to pay their share of services which benefit them, such as roads and schools.

Current Florida Governor, Republican Charlie Crist, announced last month that he was considering lowering the corporate income tax, but he hasn't said by how much. Republican representative and House Finance and Tax Chairwoman, Ellyn Bogdanoff of Fort Lauderdale, has said that she would like to eliminate the corporate tax altogether. Democrats are likely to fight either proposition; Democratic Representative Mark Pafford of West Palm Beach called the proposed tax cuts "voodoo economics."

Read the details of the proposed Florida corporate tax cuts at Sink on cutting corporate taxes: Where will the money come from?

How will the proposed tax cut affect your Florida business? If you live in the Jacksonville, Florida area and require assistance with tax planning, please contact our firm for tax planning legal counsel.

The last decade has been filled with financial ups and downs, as well as a bevy of tax law changes. Some of the highlights of the last ten years include:

George W. Bush Tax Cuts:

The provisions of George W. Bush's 2001 Economic Growth and Tax Relief Reconciliation Act have been phased in over the course of the last decade. Key points of the legislation included adding a ten percent tax bracket, broadening the fifteen percent bracket, which eased the "marriage penalty," and gradually lowering the top tax rate to thirty-five percent. It also increased the child tax credit, cut capital gains taxes, and phased out the estate tax. But all of these changes are only temporary; unless congress acts to extend the changes, taxes will revert to 2000 levels on January 1^st, 2011.

Tax Rebates:

Rebates were paid under the Bush administration in 2001, 2003 and 2008. The Obama administration has continued the trend, doling out Make Work Pay credits and mailing rebate checks to retirees.

Congress Acting Late:

Last minute tax law changes have kept the American tax payer and the IRS on their toes, often causing forms to be printed and reprinted as the filing deadline approaches. Most recently the Congress failed to extend the estate tax, meaning that it will either be enacted retroactively or not at all.

Crackdowns on Tax Evasion:

Tax evaders who were hiding money in offshore accounts came under greater scrutiny in 2009, when the US struck a deal with Swiss banking officials to cooperate with the IRS. At the same time the IRS offered amnesty to those coming forward on their own, which resulted in nearly fifteen thousand offshore account holders turning themselves in.

Read more interesting tax tidbits from the last ten years at A look back at the decade in taxes.

If you live in the Jacksonville, Florida area and require assistance with tax planning, please contact our firm for tax planning legal counsel.

Most people think of a company logo when they think of a trademark. The Nike "swoosh" is a classic example of this type of trademark. But many people don't realize that you can trademark many things that are unique, including product names, signature sounds, and much more. As a general definition, a trademark can include any word, name, symbol, device or combination of these things, and it must be used in commerce to differentiate a product or service from others on the market.

 For example, an apple grower would not be allowed to trademark the word "apple" for his business, because it is too common and does not distinguish his product from those of other apple growers. But if the apple grower decided to start a computer company in the early eighties, he would be able to trademark "Apple" because, even though it is a commonly used word, it is not a word commonly used to describe computers. In this case, "Apple" would clearly distinguish one type of computer from another.

Perhaps most surprisingly, certain sounds can be trademarked if they are associated with a particular good or service. A well-known example would be the Intel "Bong," used in their television commercials. You can find out more about unusual trademarks by visiting You Can Trademark a Lot More Than You Think.

Trademark is a complicated legal issue. If you have a product or service that you would like to protect via trademark, you will need to seek the advice of a business law attorney. Please contact our Jacksonville, Florida area firm for expert legal counsel regarding trademarks, patents and copyrights.

Pizza has dominated franchise offerings for many years. But 2010 will see some interesting new options for aspiring business owners. A recent article on the Small Business Trends blog pointed out some of the hot new franchises to watch out for in 2010.

For starters, the retirement of the baby boomers is driving the emergence of franchise opportunities that target older Americans. Some examples are CruiseOne, Club 50 Fitness Centers, Golf, Etc., and AmRamp, a company that sells, installs and maintains mobility ramps on private homes. The senior trend continues, with medical care and senior care facility franchises on the rise. Examples include Comfort Keepers, HomeInstead, HomeHelpers, Brightstar Healthcare, and Interim HealthCare.

Of course, food franchises are still popular. Topping the list for 2010 are Five Guys Burgers And Fries, Mexican eateries such as Qdoba Mexican Grill and Panchero's Mexican Grill, and a resurgence of frozen yogurt stores including a freshened up TCBY concept, SpoonMe, Yogen Fruz, Red Mango, Pinkberry, and Tasti D-Lite.

Other sectors that show promise are supplemental education facilities, green businesses and home-based businesses. For those that want to take the plunge, the availability of small business loans should be improving by the second half of 2010. Find out more franchise trends for 2010 at The Top Franchise Trends For 2010.

If you are considering a franchise opportunity, be sure to get all the facts and contact our firm for expert legal counsel.

Generic drugs can cost significantly less than their brand name counterparts. But are they really identical? The US Food and Drug Administration (FDA) has regulatory oversight to ensure that both generic and brand name drugs are safe and effective. US patents grant an inventor a twenty year right to manufacture and sell their patented medicine. After the patent expires, anyone can sell the drug, as long as they can prove to the FDA that it is "bioequivalent" to the brand name drug. But bioequivalent is not always the same as identical. In addition to the active ingredient of a medication, there are also the additions of inert components and coatings of the pill to consider. Each of these steps being carried out appropriately may be critical for the safety and efficacy of the final product.

The problem is that patents are crafted to reveal the least amount of trade secret information as possible. This means that a generic drug producer may, in part, have to guess how to manufacture the drug. There is growing evidence that variations in the manufacturing process of generic drugs could make them significantly less safe and effective than is commonly believed.

The best tactic for Florida consumers to protect themselves is to use brand name drugs if possible, and to discuss any generic substitutions with their doctor and pharmacist. Find out more about generic drugs versus brand name drugs at Generic Drugs: Caveat Emptor!

If you have a patent or trademark law matter you would like to discuss, please contact our Jacksonville, Florida area firm.

Defective batteries and a software glitch in defibrillators (AEDs) manufactured by Zoll Medical Corporation may raise a surprising  premises liability issue for owners of businesses who purchased the AED's  to provide additional protection for customers and employees experiencing heart problems while on the businesses premises. The Zoll Medical Corporation is now reminding AED purchasers who may not have taken advantage of the company's voluntary corrective action in April of 2009 that they need to run a software upgrade to ensure the devices are working properly. Business owners should do so immediately, as lives are at stake.

The Zoll product in question is the AED Plus automated external defibrillator. Batteries in some of these devices are defective, and the software that is supposed to detect the battery failure may not be working properly either. Defibrillators older than three years are the most likely to fail. Affected products will carry a serial number of "X_ _ _200000" or lower. The software patch is available on the company's website. Users should also send Zoll an acknowledgment that the corrective action has been implemented. This is an important step for business owners as the "confirmation of corrective action" could be an important element in avoiding liability in the case of a subsequent AED failure. It would  also permit  Zoll to ensure that all defective defibrillators have been updated.

Three devices have been reported to have failed due to the problem, and two patients died when they were unable to receive the defibrillation shock. Find out more about the defective defibrillators at Zoll reminds on AED battery issue.

If you are dealing with a product liability or premises liability issue, please contact our firm for business law counsel.

The weeks between Thanksgiving and Christmas are the most profitable weeks of the year for most retailers. But keeping those profits come January first can be a challenge, as recipients rush to return unwanted gifts. The gifts most likely to be returned? Products like consumer electronics that require complex assembly. But research shows that the majority of returns are preventable.

The following are four easy steps that can help decrease returns and increase customer satisfaction this holiday season.

1. Manage expectations: Providing appropriate pre-sales support will help consumers understand what is involved with getting a gift up and running. Providing an area where customers can share product reviews is a great way for customers to educate themselves.
2. Give great customer support: The main reason recipients return gifts is that they can't figure out how to set them up. Providing round the clock support can help these folks get their gifts put together and keep them out of the returns line.
3. Contact the customer: Contacting the customer after the sale gives them an opportunity to express dissatisfaction and get direct access to help. That helps build customer loyalty.
4. Give good directions: Clearly describing what pieces should be included in the box and how they all go together is essential. Providing video instructions improves consumers' set up experience. Customers prefer video instructions to written guides, customer service reps and 1-800 numbers. Good video directions can reduce returns by as much as thirty percent.

Find out more about cutting back on holiday returns at 'Tis the Season to be Grumpy: Holiday Returns are the Grinch That Stole Profits.

If you run a Florida retail business, it is your responsibility to know consumer laws regarding gift returns. Please contact our Jacksonville, Florida area law firm for business law counsel.

Thousands of erstwhile taxpayers who have been sheltering funds in offshore accounts will be brought into compliance with US tax law, according to Internal Revenue Service (IRS) Commissioner Douglas Shulman. The IRS reached a deal with the Swiss government recently, which will give it access to 4,450 UBS AG accounts held by American citizens.

Shulman said that the IRS hopes to eventually gain access to over 5,000 accounts through a voluntary disclosure program. Under that program, investors who have evaded taxes by using a UBS account can report their tax activity and avoid prosecution. Shulman estimated that the accounts in question hold assets of up to $18 billion.

Observers note that this may be the end of an era for tax evaders, who can no longer stash money in Swiss, Cayman Island or Lichtenstein bank accounts without any consequences. Read more about the landmark deal between the IRS and the Swiss government at IRS gets a key to Swiss bank accounts.

Although this program is no longer available to taxpayers, it does show that the IRS is cracking down on tax evasion but also setting up programs for those taxpayers who decide to no longer hide their assets.  Evading your tax responsibility is not a good tax planning strategy. If you live in the Jacksonville, Florida area or north Florida and require assistance with tax planning, please contact our firm for tax planning legal counsel.

Miami, Florida based burger franchisor Burger King, the second largest burger food chain in the United States, recently announced it plans to remodel and redesign its 12,000 restaurants worldwide. The 20/20 design—and no, that is not the popular ABC news program's design—is a determination by Burger King to provide a look that is "contemporary, edgy, and futuristic." The cost of the remodel and redesign isn't cheap; franchisees will have to spend between $300,000 and $600,000 for each restaurant. Some of the new design aspects include rotating-red-flamed chandeliers, TV-screen menus, brick walls, and industrial-inspired corrugated metal. The good news for franchisees is that Burger King restaurants already remodeled with the 20/20 design have reported increases in sales between 12 to 15 percent, and some locations that have completely rebuilt their restaurant using the new designs have had sales increases as great as 30 percent.

Ninety percent of Burger King's restaurants are franchisee owned, and by contract they are required to update their restaurant. Just like Burger King's franchise agreements, most franchise agreements require franchisees to make upgrades at certain intervals. Thus, it is a contract term that becomes vitally important to franchisees and potential franchisees when they are entering into a franchise agreement. All kinds of issues must be considered on the franchisees part; for example, what are the costs of upgrades, are the upgrades optional or required, who will provide financing if the upgrade will be costly, and what if the franchisee cannot obtain financing? An attorney experienced in franchise law can help you sort through all of these concerns and ensure you, as a franchisee, know exactly what your obligations will be.

Let's say you want to start a chain of restaurants in Florida using NBA star Dwyane Wade's name as the name your restaurant, and at times, Wade will make personal appearances at the restaurant. Sounds like a great idea for a start-up restaurant to generate a lot of business, especially, considering the fact that for two years straight Dwyane Wade's jersey has been number one in sales of all NBA players.

We all get ideas at times that we think are sure to generate big profits, unfortunately in the business world we know those great ideas can sometimes end up only generating big losses. That appears to be the case with two investors, Richard von Houtman and Mark Rodberg, who entered into a contract to start D Wade's Place, a sports themed restaurant bearing the name of its superstar endorser. Both investors are now involved in a lawsuit filed against Wade. In return, Wade has filed a counterclaim against von Houtman and Rodberg and a libel lawsuit against von Houtman seeking $100 million in damages. Currently, the case is in mediation to see if it can be settled.

Oftentimes, persons entering business partnerships plan for splitting profits and job responsibilities but, fail to plan for what happens if the business results in losses. If your thinking about entering a business partnership, make sure you develop a plan that takes into account potential adverse results to the business and partnership. If you have questions regarding the potential risks you should take into consideration, send me an e-mail.

Effective Control Transport, a Montreal-based company, has developed a new system called Driver's Mate that monitors a driver's level of alertness and takes corrective action if it falls below a predetermined baseline level. The device mounts onto a dashboard and may be retrofitted onto virtually any type of vehicle.

Driver's Mate uses a camera to monitor 534 points on the driver's face and rates his or her condition on a scale of completely alert to technically asleep. If the system detects that the driver is not paying a safe level of attention, it will sound off an alarm and will also contact a dispatcher.

As a Traffic Court Magistrate, I appreciate any new technology that makes our roads safer! The problem of drivers falling asleep behind the wheel is huge but it sometimes gets lost behind drunk driving and driving while texting. Unfortunately, the National Highway Traffic Safety Administration estimates that 56,000 crashes every year are caused by sleepy drivers. We all need to take active steps to cut down on accidents that are so avoidable!

Earlier this year, Cuppy's Coffee, a franchise founded in Florida but later moved to Alabama, simply disappeared into oblivion leaving nearly two hundred franchisees without a franchisor. A warrant for the CEO of Cuppy's, Robert Nabors, was issued in Okaloosa County, Florida, in March of 2009. Some of the investors now face bankruptcy as a result of investing hundreds of thousands of dollars in the franchise but never even getting to open their business. Cuppy's took the franchisees' money but, never built their stores. From the start, Cuppy's was a questionable franchisor; Cuppy's grew out of the failed franchise, Java Jo'z.

Cuppy's isn't the only franchisor to be hit with lawsuits in Florida; I recently posted a blog discussing The UPS Store franchisees suing UPS alleging it withheld information from franchise purchasers regarding profitability. Another franchisor sued by its franchisee is Cold Stone Creamery, which was sued by a Tallahassee, Florida, franchisee on claims of fraud related to the store's profitability.

I find the continuous stream of investors in franchises and other business opportunities who buy into risky and questionable businesses both startling and saddening at the same time. The most important thing a potential franchisee can do is research the company; that means researching other sources of information about the franchisor and not just relying on information provided by the franchisor itself. Potential franchisees can look to sources such as, franchise magazines, franchise blogs, franchisee associations, and talk to current franchise owners to find out things like what kind of support, feedback, and dispute resolution the franchisor provides. In addition before signing any Franchise Agreement a potential purchaser should seek counsel from an attorney experienced in franchise law.

In light of the excitement surrounding the Monopoly World Championship in Las Vegas, it seems appropriate to recognize the other side of economic board games: Anti-Monopoly. Anti-Monopoly was created by Ralph Anspach in the 1970s and can be purchased on line. The object of the game, which seems fitting, is to break up existing monopolies and restore a free market system.

Anspach's invention had a rough start. When he first marketed the game, the owners of Monopoly sued for trademark infringement. Anspach defended by arguing that the trademark was void because the idea for the game and the name monopoly was in public domain. Contrary to the official Monopoly history, a version of the game was invented more than a quarter century before the current owner registered the trademark. Public domain refers to intellectual property so widely used it belongs to the public and cannot be restricted by a single party. After an almost 10-year legal war, the judiciary agreed with Anspach. This prevented any further infringement claims against Anti-Monopoly and allowed him to market his game. The Monopoly mark did not become void because the United States Congress amended the Trademark Act to create an exception.

In an ironic twist, Hasbro, which owns the Monopoly trademark, now also holds the trademark registration for Anti-Monopoly. The Anti-Monopoly distributor simply uses the mark pursuant to a license as indicated on the game's website.

Since 2007, Philadelphia Wine School has held a culinary and wine competition which it has dubbed Sommelier Smackdown. World Wrestling Entertainment has its own long-running TV show called SmackDown and caught wind of the other use when Philadelphia Wine School applied for a trademark for its name.

WWE is actively trying to put Philadelphia Wine School's use to an end but Philadelphia Wine School doesn't plan on caving and is prepared to fight the opposition. Philadelphia Wine School seems to be banking on the idea that "smackdown" by itself is a generic term that cannot be registered.

Even if the generic defense doesn't pan out, I think that WWE won't be able to show that consumers will be confused as to the source of Philadelphia Wine School's event. Call me crazy but I don't really see Hulk Hogan sitting around, sampling a '52 Merlot!

What do you think of this face-off? Please post your comments or contact me to discuss!

Newly appointed Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office David Kappos has wasted no time in getting down to business in his new post. Mr. Kappos has moved to cancel a hotly contested regulations package under consideration.

The so-called Continuation Rule, Request for Continuing Examination Rule, and Claims Rule were all supported by the previous USPTO administration. These provisions placed caps on the number of continuing applications and RCEs per parent application, and the number of independent/total claims in an application.

I'm glad to see that these rules will not take effect because they limit an inventor's options during patent prosecution and reduce the protection he or she can secure. Why impede technological progress for minimal gains in USPTO efficiency? Mr. Kappos clearly made the right play here!

Consult a patent attorney to find out the exact boundaries of current patent law!

In Jacksonville and northeast Florida we have just about all of them—McDonald's, Starbucks, and Dunkin Donuts; I am talking about the major franchises in the growing business of selling specialty coffee drinks. Recently, I posted a blog on succeeding in difficult economic times by finding a niche (Lucrative Niches +Established Marketplaces =Better Chances for Franchise Success). In that blog I explained that one way to be successful in a tough economy is by finding a niche that separates your company from the other businesses in the same market.

In this blog I would like to show you how the few franchisors I already listed, along with Tim Hortons and Caribou Coffee, a couple of the other major players in the specialty coffee market (neither of which have locations in Jacksonville), use their niches in the coffee and food chain restaurant business to compete. Here is a brief explanation of what helps each of them succeed in garnering a portion of the market share.

McDonald's, the largest franchisor, uses its buying power to provide the product at a slightly cheaper price and sells it along with its wide array of breakfast and burger meals.

Starbucks is probably the originator of the specialty coffee boom, so it can rely on the fact that it was the first in the market and that it is primarily a high-end coffee business.

Dunkin Donuts combines its primary product, donuts, with coffee to reach its particular market, and prior to Tim Horton's entering the marketplace, Dunkin Donuts, was the only one of these businesses offering its customers a wide array of donuts. Dunkin Donuts has recently added breakfast sandwiches in order to compete with McDonald's and Tim Hortons.

Tim Hortons, like Dunkin Donuts, sells a wide variety of donuts, but it also sells breakfast sandwiches and other foods, including soups and lunch sandwiches.

Caribou Coffee, the only other primarily high-end coffee focused chain besides Starbucks, competes by selecting smaller unexploited markets to locate its stores, avoiding direct competition with Starbucks.

Whatever your business is, you can still find a way to compete in a crowded market by finding your niche. Drop me an e-mail and let me know what you think. As always, I look forward to hearing from you