Questions and Answers
Business Law
- A trademark is generally a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.
- A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than goods.
No. Trademarks, copyrights, and patents protect different types of intellectual property.
A trademark typically protects brand names and logos used on goods and services. A copyright protects an original artistic or literary work. A patent protects an invention.
For example, if you have a new invention, you would apply for a patent to protect your ideas as to the design or the methods to make the product; When you start the production, you can think of a brand to show the world that you are the maker of the product. The brand is the trademark. Later you develop a commercial to market the product. You would register a copyright for the words you use to market the product.
A domain name is part of your web address; A trademark identifies goods or services as being from your company. Business name means you are authorized to run your business under this name. Neither use of a domain name nor a business name necessarily qualify as trademark use. Other parties could later try to prevent your use of the business name or domain name as trademark if they believe a likelihood of confusion exists with their trademarks.
No, you do not. Registration of a mark before using it as a trademark is not required by law. By registering, you put the world on notice of your ownership of the trademark. When you bring an infringement suit against the other party, you may use the registration record as evidence of notice that the other party has of your ownership. Accordingly, you may potentially recover treble damages, attorneys fees, and other remedies. Finally, registered trademarks can, after five years, become “incontestable,” at which point the exclusive right to use the mark is conclusively established.
Yes. The rights to a trademark can be lost through abandonment, improper licensing or assignment, or generocity. A trademark is abandoned when its use is discontinued with an intent not to resume its use. non-use for three consecutive years is prima facie evidence of abandonment. Intent of not to resume its use can be inferred from the circumstances.
Furthermore, rights to a trademark is lost through improper licensing means that if the use of a trademark is licensed (for example, to a franchisee) without adequate quality control or supervision by the trademark owner, that trademark will be canceled. Similarly, if trademark will be cancelled if you assign the trademark to another party without corresponding sale of any assets.
Trademark rights are lost through generosity when the mark become generic over time.
Trademark infringement occurs when someone use a trademark without consent of the owner in a manner that a reasonable person would likely be led to perceive the product as been produced by someone else.
To know whether you are infringing, it is important to consider how similar your mark and the other is and how likely an average consumer may assume that their products are made by you. Essentially court may consider circumstantial factors, including advertisement, purchasing conditions, the range of perspective purchasers of the goods or services or any evidence of actual confusion caused by your mark, your intent in adopting the mark the the strength of the other mark, to decide level of likelihood of confusion.
In addition, you may be infringing if your mark blurs the other mark’s distinctiveness or connects it to something distasteful or objectionable.
An experienced trademark attorney, taking the particular circumstances of your case into consideration, should be able to provide you with an opinion as to whether you are infringing.
If the trademark owner is able to prove infringement, you could be ordered by court to
- stop using the accused mark;
- destruct or forfeit infringing products;
- Pay plaintiff your profits, all cost including attorney fees associated with the lawsuit;
There are many treatment differences between an independent contractor and an employee, including minimum wages and overtime, taxes and withholdings and liability insurance. It’s important to know misclassification is pricy mistakes. For one, IRS will fine you for not withholding income tax and not paying payroll taxes when you should have. Secondly, employee may sue you for not paying minimum wage and overtime; Thirdly, since workers’ comp only covers employees. Misclassifying the worker means you need to pay for the liability out of your own pocket.
There are Florida laws that protect employers. It’d be wise to have business counsel who you can consult periodically about your employment situation.
Contracts and Agreements
Florida’s version of THE UNIFORM PREMARITAL AGREEMENT ACT defines Premarital Agreement’ as an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.”
Section three of the Uniform Premarital Agreement Act provides parties to a premarital agreement may contract with respect to:
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- The establishment, modification, or elimination of spousal support;
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
- The ownership rights in and disposition of the death benefit from a life insurance policy;
- The choice of law governing the construction of the agreement; and
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
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You may challenge the validity of the prenup in a courtroom if you can prove that:
1. That party did not execute the agreement voluntarily; or
2. The agreement was unconscionable when it was executed and, before the execution of the agreement, that party:
i. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
ii. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
iii. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
Whether you need a prenup depends on where you live and what you want to accomplish with the contract. For example, if you live in a community property state, where the general rule is that all assets acquired during your marriage will be divided 50/50 between you and your spouse if you divorce, and typically, separate property, including gifts, inheritances, and any property you owned before the marriage will not be divided in the divorce, and you will keep what you own individually, you may not need one.
If you do not live in community property state, appreciation of separate property may become marital assets if the general rules are followed. However, if you have specific ideas of how things should be divided or if you have separate property you want to make sure remains exclusively yours after a divorce, you may want to consider a prenup. Additionally, if you’re certain that neither of you want to pay alimony in the event of a break up, you may need a prenup to ensure you don’t end up paying spousal support.
You do not have to but you should. Not only you should hire one lawyer, you should hire one for each party. Why? At time of divorce, one party may challenge validity of prenuptial agreement in court. Court will scrutinize the content of your agreement very closely. If you present the court with a prenuptial agreement where only one party had an attorney, the judge may see it as a red flag. If either spouse entered into the contract without understanding the benefits and risks, which can happen when only one person has a lawyer, a court may reject the contract during divorce proceedings.
Asset Protection and Estate Planning
Trust is fidiciary relationship where …
One needs trust as alternative of Wills. Wills have two big shortcomings: Assets given under a will must go through probate, which is court proceeding to validate a will and settle the assets. This process is lengthy and often expensive. In many cases, attorneys charge a percentage of estate as attorney fee. Moreover, the probate makes estate settling documents a public record, which can be scrutinized or contested.
A trust, on the other hand, is a private settlement of affairs. It helps settlor to avoid probate and thus is more safer and cost-effective.
No, it is not necessary to have an attorney to draft a living trust for you. But, having legal counsel advise you through the trust formation process can help you know all your options to minimize estate’s exposure to taxation, to avoid mistakes which may lead to an invalid trust document and to under all necessary elements in a trust.
Hence, having a lawyer to draft trust for you is highly recommended.
Immigration
Business Immigration refers to work visas, investment immigration and employment-based immigration. Business Immigration processes include petition and application for work visas such as H1B, E1, E2, L1 and EB1 though EB5 immigration visas.
The O nonimmigrant classification allows the following noncitizens to enter the United States or change status from another nonimmigrant category:
- Nonimmigrants of extraordinary ability in the sciences, arts, education, business, or athletics (O-1 nonimmigrants);
- Nonimmigrants of extraordinary achievement in the motion picture or television industry (O-1 nonimmigrants); and
- Certain nonimmigrants accompanying and assisting an O-1 nonimmigrant (O-2 nonimmigrants).
The E visa category includes treaty traders and investors who come to the United States under a treaty of commerce and navigation between the United States and the country of which they are a citizen or national. This category also includes Australian specialty occupation workers.
The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company that does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. The employer must file a Form I-129, Petition for a Nonimmigrant Worker, with fee, on behalf of the employee.
To qualify for L-1 classification in this category, the employer must:
- Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
- Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.
Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
To qualify, the named employee must also:
- Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
- Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.
Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.
Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others. See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for complete definitions.