I am often asked, “What is a trademark and what does it get me?”  Well, the first part of that questions is fairly straight forward, the second part, not so straight forward, but let me try to help.

What is a trademark?  A trademark is something that is used to promote your small business.  What immediately comes to mind is your small business name, however a mark could be a logo, a phrase, such as your tagline, a scent, a color, a sound, etc.  Small business owners often ask what I mean when I say a scent, well have you ever walked into those trendy stores, come on, I know you know what I’m talking about, and it does not matter if you walk into the store in Pleasanton, California or New York, New York, you smell that overwhelming scent that follows you around for the remainder of the day, well that is probably a trademarked scent.  Each time you smell that scent you know exactly where you are.  How about a color?  The best example I can give is IBM blue.  When I say IBM blue I’m not sure that there is anyone who does not automatically see the color I am speaking of.  How about a sound?  Well, you know when you boot up your windows computer and you hear that distinctive little jingle of a noise, yes, you know the one…well, that is an example of a sound that may be trademarked.  Bascially, a mark is used for something that is used to create recognition of your business.  Does that help answer the question of what is a trademark?

As for what it might get you as a small business owner, well that depends.  First your mark must be properly registered with the U.S. Patent and Trademark Office or your state trademark office.  Whether you file federally, within your state or even internationally may warrant a conversation with your small business attorney.  Once you have properly registered, then if you have to enforce the use you can obtain protections such as filing a lawsuit, claiming economic harm (loss of money due to some else’s use of your mark), and even fines and attorney’s fees.  These may all be available to you in protection of your use of the small business mark you have properly registered.

So, what is a trademark?  It can be many things and it can be protected in just as many ways.

If you have questions about trademarks, Integrated General Counsel can help you determine your next steps.  If you are ready for a results-driven plan of action, contact us either by telephone at (925) 399-1529, schedule yourself into our calendar for an appointment at a time convenient for you, or complete the Contact Kristen form and we will get back to you.

Although a trademark can be an essential element of your small business assets, is it really necessary?  I have clients that get advice from people that ends up to be all over the map.  The reality is that if you want to file for a trademark, sooner is typically better than later.  This is for the simple fact that if you wait until your brand becomes wildly popular before perfecting your mark, you may be in a defensive position prior to getting this process going.

So, before you can determine if you want to file for a trademark, you should determine what your small business name will be.  Think of three or four names that you could name your small business.  Then consider doing each of the following for each of the three or four small business names you came up with:

1. Search Google: Check to see if the name your are interested comes up and, if so, what is the reference it came up for?

2. Search the Secretary of State’s business directory:  Determine if another business is using the name you are interested in using for your small business.

3. Search Your county Recorder’s Office business directory:  This can be done either at the Recorder’s office or online.  Rule out the possibility that another business in your county is using the small business name you are interested in.

4. Search a Domain Name provider:  Search for the domain name for the names you are interested in using , if the domain name (that’s www.yournamehere.com) is available you would be wise to purchase it.  People are searching all the time for various names so if it’s available now purchase it because when you go back to buy it later, it may be taken.  Just think of it as an investment in your small business.

You should complete each of the above steps for each name you have decided is interesting for your small business before you start your branding and definitely before you think about a trademark because having this information in your back pocket will provide much of the groundwork that needs to be done prior to perfecting your mark.

If, based on all of the above, the name you have picked is still available, then you can apply to register with the U.S. Patent and Trademark Office (or obtain an attorney’s help.) Once you do so, then you should can using the trademark symbol ™. You can use the “TM” symbol as soon as you are claiming the name in usage but you cannot use the symbol ® until the mark is actually registered.

If you have questions about trademarks, Integrated General Counsel can help you determine your next steps.  If you are ready for a results-driven plan of action, contact us either by telephone at (925) 399-1529, schedule yourself into our calendar for an appointment at a time convenient for you, or complete the Contact Kristen form and we will get back to you.

Small business accounting is something that is important for small business owners to keep their eye on, but most of us don’t.  Something I often talk to my clients about is the accounting or financials they should have in place for their small business.  Let’s face it, as small business owners we have a lot on our plate, most of which is making sure the client gets what they want, be it a product or a service.  And sometimes, more than we’d like to think, the accounting side of our small business gets placed on the back burner.  So, I usually tell my small business clients they really need to keep their eye on their financials in order to measure where they are against where they want to be, but how?

In my mind, and keep in mind I am not an accountant, the top three financials that my small business clients should have in their accounting arsenal are a budget, an income statement and a balance sheet.  The budget is an forecasting tool used in accounting to determine what income you expect to have and what expenses you expect to have, this, in effect, gives you a goal to achieve.  Your income statement will show you what your business has as far as income and expenses during a particular time frame, usually by month.  And your balance sheet will give you a snapshot of your balances in your various accounts, including bank accounts, capital accounts, etc.

Of course, your accounting may differ from your competitor’s or even your neighbors, that does not matter so much.  What matters is that you keep an eye on the accounting you have, digest it and gain a better picture of where your business has been and where you are going.  This is why your accounting is so important.

I always tell my clients that one of the trusted advisors they should have on their team is an accountant, this is obviously to keep their accounting in check.  The accountant is in addition to their business attorney and their commercial insurance broker.  With a minimum of these three trusted advisors, your small business should be well on its way to success.

Do you keep an eye on your accounting on a regular basis?

In short, a trademark registration is not required, but is often helpful in your quest to protect your brand.  A trademark can be obtained for a word, a phrase or a design, think logo, that is unique to your product or service and identifies that product or service as associated with your business. In the United States, you automatically get protection when you use a word, phrase or design that is used in connection with your goods or services. You don’t necessarily need need to register your mark to protect your business from someone for using your mark or name, although it can be helpful if your mark is registered with the United States Patent & Trademark Office (“USPTO”).

What Can You Trademark?

Although a mark will protect any type of an indicator of origin or source of goods or services, a trademark is most commonly made up of words, designs, or a combination of words and designs. Although in some cases, your business can protect sounds, scents or colors (for example, IBM blue).

Why Register Your Trademark?

One of the largest benefits of registering your mark is that you get nationwide protection. This means that you can prevent someone else from using your name or design to sell similar goods or services, of course exceptions exist to every rule. You can use the registered symbol (®) as soon as you are notified that your trademark has been successfully registered and most people understand that when you use that symbol you are telling them you have rights to use that word, phrase or design.  This offers further protection for your business.  Among other ways to protect your mark, the owner of a registered trademark can sue and potentially recover damages and attorneys’ fees.

Types of Trademark Registration

There are two types of trademark registration.

The first type of trademark registration is for existing use of the mark. This means that you are currently using the word, phrase or design, or whatever else you are thinking of trademarking.  An existing use trademark registration will offer protection back to the first claimed use of the mark.

The second type of trademark registration is for anticipated use or an intent-to-use registration. If you file for an intent-to-use registration, the date of filing is considered to be your first day of use. This means is that if you file your intent-to-use registration on March 1 and someone else starts using the word, phrase, or design on March 15, once your mark is registered, the other party has been infringing on your rights to use.  If you are in this position, you may be able to obtain damages and attorneys’ fees.

Have you considered how best to protect your brand?

If you have questions about trademarks, Integrated General Counsel can help you determine your next steps.  If you are ready for a results-driven plan of action, contact us either by telephone at (925) 399-1529, schedule yourself into our calendar for an appointment at a time convenient for you, or complete the Contact Kristen form and we will get back to you.

Attorneys’ fees provisions in contracts can be tricky.  The general rule in California, each party takes responsibility for his or her own attorneys’ fees unless the parties agree otherwise, although some “specialty” rules exist that reallocate payment of attorneys’ fees or mandate “fee shifting.”

Generally, the attorneys’ fees provision in a contract will read something like:

The prevailing party in any action or dispute arising out of this agreement will be entitled to their reasonable attorneys’ fees and costs.

Effectively, an attorneys’ fees provision encourages the person who abides by the terms of the agreement to sue the other party to the agreement in order to hold the violator to the terms of the contract. However, an attorneys’ fees provision can discourage either party from breaching the agreement because now the provision makes them responsible not only for what they owe under the contract but for the other person’s attorneys’ fees. So, you need to decide whether, in your business, you want the contracts that you have with vendors or customers or anyone else to have an attorneys’ fees provision. The answer may be different depending on who you are contracting with.

Contracts With Vendors

These could be agreements like purchase orders by which they deliver goods or services and you pay for them. When contracting with vendors, you will want to consider whether you believe it is likely that the vendor will not deliver or the vendor sells an extremely valuable item that you have no alternative sources to purchase from.  If either of these scenarios is true then you may want to consider including an attorneys’ fees provision in your agreement with that particular vendor.  Let’s face it, most contracts fall into breach when one party does not pay the other party for delivered goods or services. Because you, as the purchaser (despite your good credit and good intentions), are more likely to breach an agreement to pay than the vendor is to breach an agreement to deliver goods or services, generally, there is no benefit to you to include an attorneys’ fees clause.

Contracts With Customers

Using the same analysis as above, you can see why you might want your contracts with customers, including invoices, to have an attorneys’ fees provision in them. If you have to sue to get paid, I know you hope this will never happen, but it sometimes does and if it does you may want to also be able to recover attorneys’ fees in addition to any other amounts owed. This can also be an incentive to encourage payment because your customer may know that if they don’t pay and you sue, they will owe you more.

Do you include attorneys’ fees provisions in your agreement?  Why or why not?

If you have questions about your contracts, Integrated General Counsel can help you determine your next steps.  If you are ready for a results-driven plan of action, contact us either by telephone at (925) 399-1529, schedule yourself into our calendar for an appointment at a time convenient for you, or complete the Contact Kristen form and we will get back to you.

 photo credit: Mike Rockmore

Carefully schedule your week and for every day write down the things you have to do. When done, number these items in the order of their real importance.  First thing every morning, you start working on number one and stay with it until it’s completed. Then take number two, and don’t go any further until it’s finished or until you’ve done as much with it as you can. Then proceed to number three, and so on. If you can’t complete everything on schedule, don’t worry. At least you will have taken care of the most important things before getting distracted by items of less importance.

The secret is to do this daily. Evaluate the relative importance of the things you have to get done, establish priorities, record your plan of action, and stick to it. This will increase your efficiency/productivity by 25% or more.

After you have convinced yourself that this system has value, have your employees try it.

Christoph Nauer is founder and owner of Life Coaching With a Twist. The “Twist” is that Christoph, unlike most life coaches, brings over 15 years of experience in ministry, pastoral counseling, and spiritual direction to the coaching process.  If you’re looking for something that addresses the whole “you” and can provide you with a clearer vision and actionable steps, then call now to schedule your free complimentary session… the only thing you have to lose are your problems!

When business owners offer their employees a retirement plan benefit they have a personal responsibility to make sure that the fees charged are reasonable. Realizing that many employers are unaware of all the fees they’re paying, the Department of Labor is requiring plan providers to more clearly disclose the fees being charged. Fees vary a great deal, but generally speaking, the smaller the plan, the higher the fees when measured as a percentage of participant assets.

Under the new regulations plan providers are required to provide employers with this information by July 1 of this year, and by August 30, the information needs to be provided to all participants.

A recent study by AARP found that 71% of respondents thought they didn’t pay any fees in their plan. The study suggests that for the millions of Americans who will be receiving information on how much they’re paying for their 401(k) retirement plans, these disclosures may come as a big surprise.

The logic behind the new requirement is twofold.  First, fees can make a big difference in the amount people are able to accumulate in their retirement accounts, and second, if plan sponsors understand how much they’re paying, they’ll be better able to fulfill their personal legal obligations to make sure the fees their employees are paying are reasonable.

In their publication “A look at 401(k) plan fees” the Employee Benefits Security Administration provides an example of how important fees can be.  Assume that you are an employee with 35 years until retirement and a current 401(k) account balance of $25,000.  If returns on investments in your account over the next 35 years average 7 percent and fees and plan expenses reduce your average returns by 0.5 percent, your account balance will grow to $227,000 at retirement, even if there are no further contributions to your account.  If fees and expenses are 1.5 percent, however, your account balance will grow to only $163,000.  The 1 percent difference in fees and expenses would reduce your account balance at retirement by 28 percent.

In a study done by Deloitte Consulting in November of 2011, they found that only about one-third of business owners had participated in a competitive review of their current retirement plan in the last two years.  Examples of a competitive review include a review of plan fees by a third party (an investment or benefits consultant) or a complete vendor search with a request for proposal (RFP).  By not actually checking their options, business owners may have a difficult time proving that they’ve fulfilled their responsibility to ensure that the fees charged are reasonable, thus exposing them to a potentially significant personal liability.

The new fee disclosure requirements are already having an impact in the market, creating more competition and driving costs down.  Business owners that check their options now to make sure the fees they are paying are reasonable may avoid problems this fall when their employees find out how much they’re being charged.

The author, Ken Perine, is a Certified Financial Planner ^TM at Meritage Wealth Advisory.  He provides personal financial planning and retirement plan consulting services to business owners.  For more information, go to www.meritage-wealth.com.

When is the right time to trademark your business name?  You worked long and hard to come up with a catchy name for your business, now how do you protect it?   Perfecting a trademark can be an important part of your asset and intellectual property portfolio. As your business grows and you become more well known, your protections will become more and more important.  These protections can lie in many areas including selecting the proper entity, having the right insurance coverage, and protecting your intellectual property, to include perfecting the appropriate trademarks.

When is the Best Time to Register Your Trademark?

Your business name may be all you have as you build your business, but as your business grows and your name becomes more well known others will become interested in using your name for their benefit.  The best time to protect your business name is right when you start your business because that is the time when no one else will be interested in it.  It will also place you on record as owning and using the name in your business ventures which can prevent others from using your name or another name that is confusingly similar to yours.

Trademark vs. Servicemark

A trademark is used for goods while a servicemark is used for services.  Both accomplish the same protections, it’s just that a distinction has been made between goods and services when it comes to the name of the mark that you will apply for.  A trademark is symbolized by the superscript style TM, or ™, while your application is pending and once registered, it will be represented by an R inside a circle, like this ®.  A servicemark is symbolized by the superscript style SM, or ℠, but when the servicemark is registered it will be represented by the same mark as a registered trademark, a ®.

What Does a Trademark or Servicemark Consist of?

Your mark can simply be your business name or a product name, but it could also be your logo.  It will be a word, phrase, symbol or design, or combination of these that describes your goods or services.  It can also be a common word but cannot be a common word that is descriptive of your product.  For instance, you will not be able to trademark the word Tulip if your product is a flower, however if your product was something other than a flower, you may well be able to use Tulip.  A good example that you will be familiar with is Apple, the computer company, they are using the brand Apple to describe their computer company.  Although apple is a common name, their use has nothing to do with apples as they are commonly known.  There are so many iterations of what your mark may consist of, if you are unsure it is best to contact your attorney to find out how best to protect your assets.

Fictitious Business Name vs. Trademark

In short, a fictitious business name and a trademark are not the same.  A fictitious business name will generally protect you in your local area against use of the same name by another company, but it will not protect you throughout the United States or beyond.

Trademark Protections

Your trademark can protect you from others using your name.  It is not an automatic protection, but it will be a deterrent for most.  However, if you find someone else is using your trademarked name, you should be able to get them to stop using your name for profit and you may even be able to have them pay to you any profits they have derived by using your name.  Of course, this is all dependent on having a valid mark as well as the specific facts in your case.  That’s not to say that if you do not have a trademark you will not be successful in your pursuit, however if you hold a validly registered mark it could make your potential fight a lot easier.  Alternatively, if you are found to be using or violating another’s mark, you could be liable to that person for the same damages discussed above.

The above is intended to be a general overview of trademark protections, what trademarks can gain for your business and what can happen if you don’t have the proper or necessary trademarks in place.  If you have a business you should seriously consider protecting your intellectual property by determining what exactly you need to protect and the best way to go about gaining the protections you need.  Your business lawyer should be able to help you with this determination and providing the services you need to accomplish this task.

If you have questions about proper protection of your intellectual property, Integrated General Counsel can help you determine your next steps.  If you are ready for a results-driven plan of action, contact us either by telephone at (925) 399-1529, schedule yourself into our calendar for an appointment at a time convenient for you, or complete the Contact Kristen form and we will get back to you.

 photo credit: Double–M

Why operate your small business under the proper business entity?  In short, it depends.  It depends on your goals and those of your small business, but don’t worry, when you work with the right business lawyer, all that will be fleshed out with you.  You should note that the best entity for you and your company may be different than the entity recommended to one of your competitors or someone else in your line of work.  Because a different business entity was recommended to you does not mean that you have been recommended the wrong one or someone else has, it just means that you probably have different goals you are trying to meet with your small business.

Of course, there are many variations on each entity, but the six main types of business entities are:

• Sole Proprietorship - No formal entity here, you are your small business and your business is you.  You should note, however that when you function as a sole proprietor your personal assets may be exposed to your company’s liabilities.
• General Partnership - A general partnership can exist without any formal agreement.  You form a partnership when two or more people go into business together.  Typically each partner will have have some responsibility for running the company.  Most importantly, you may open up your personal assets to settle the company’s debts even if the debt was not incurred by you.  If you decide to enter into a general partnership, you should be sure to document all the terms in writing.
• Limited Liability Partnerships - Generally, states reserve this type of entity for use by professionals only, such as accountants, attorneys and architects, so if you are not a professional you will probably end up forming one of the other entities listed.
• Limited Partnership- This business entity is similar to a general partnership except typically only one general partner exists and the remaining partners are limited partners.  The limited partners have limited involvement in the day-to-day operations of the business and, more importantly, limited liability.
• Limited Liability Company - A Limited Liability Company (or “LLC”) is available in most states and provides protection from liabilities similar to a corporation.  An LLC is much more flexible than a corporation in that you can structure your business formalities, such as meetings, etc. the way you want to structure them.  If you form this entity, you can elect to be taxed as a corporation or as a partnership or sole proprietor.  There are multiple ways to tailor the structure of an LLC to your liking while enjoying the protections it provides.
• Corporation – Various forms of corporate entities exist, not all of which will be discussed here.  A corporation is an entity that offers personal protection from your business liabilities, but also is the most document intensive and has the most formalities for the entities listed above.  Your choices may include an S-Corporation or a C-Corporation. The best selection for your needs will depend on several factors that include tax consequences and other cost considerations.

There are several business entities from which to choose.  To determine the best entity for you and your venture you should consult your accountant and your small business attorney for input and direction.  An attorney who knows your business will, undoubtedly, be able to provide the best advice.

If you have questions about the best business entity for you, Integrated General Counsel can help you determine your next steps.  If you are ready for a results-driven plan of action, contact us either by telephone at (925) 399-1529, schedule yourself into our calendar for an appointment at a time convenient for you, or complete the Contact Kristen form and we will get back to you.

 photo credit: mikecogh

So, you’re starting a small business…congratulations!  You are embarking on one of the best rides of your life.  I say that because starting a small business is enthralling, but definitely has its highs and lows.  Furthermore, starting a small business takes consistent work.  Yes, the grass can be greener, but it can be bleak.  I’m sure you have read all the statistics about how small businesses fail at an alarming rate.  Want to not be one of those statistics?  Well, then you need to get all of your ducks in a row before you actually throw open your doors.

What ducks? You are probably asking.  Well if it quacks…nevermind.  That is not where we are going here.  Before starting a small businesses there are several considerations to make when putting your plan in place.  Yes, you should have a plan, and I recommend you write it down.  First, start by outlining and drafting your business plan.  You will need to spend some time here, but it will be time well spent when you have a road map to help you get where you are going.

I also recommend writing down your goals.  We all have goals, but some of us never put them in writing.  Once you put them in writing, it’s funny how they become much more real.  This will also help you find your way.

Then, create a budget.  Once you create a budget you will know how much revenue you will need to have in order to cover your expenses, and better yet to actually make a profit.  Of course, you will note from my other posts, that I am big into documentation, and your budget is not an exception.  When you are starting a small business, you should create your budget in writing, just like your business plan, it can be changed, but it will provide you with a starting point.

Of course, the above suggestions are just that, suggestions for you when you are starting a small business.  What suggestions do you have for those who are starting a small business?

 photo credit: 68photobug