Protect Your Brand – Enhancing Your Rights Through Trademark

Having brand recognition elevates your business and brings your customers back to you while increasing your revenue. We can instantly recognize logos such as Nike’s checkmark, Apple’s bitten apple, Target’s bulls-eye, Pepsi’s tri-color (red white blue) circle, and Ebay (using its own name) which are some of the most recognizable brands. For the South Asian community internationally recognized logos you may recall are Air India and Shaadi.com. Creating your own unique logo is a stamp which represents your business and is the start of your Brand.   You can enjoy the thrill of developing your own imprint under a trademark license and tailor and mold your business Brand and reputation. You can protect your Brand through Federal Registration called Trademark.

What is a Trademark or Service Mark? A trademark is 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. Throughout this booklet, the terms “trademark” and “mark” refer to both trademarks and service marks. A Trademark or Service Mark can only protect the Brand Name or logo used on goods and services. A Trademark or Service Mark gives you rights over your name and logo and control over your reputation. For example, if someone registers a domain name or business name with your Trademark or Service Mark, even if it is available with that particular registrar, they would be required to surrender it as it would infringe upon your Trademark Rights because of your Federal Registration with United States Patent and Trademark Office (“USPTO”).

What to Consider when selecting a Mark? Before filing a Trademark/Service Mark application, you should consider (1) whether the mark you want to register is registerable, and (2) how difficult it will be to protect your mark based on the strength of the mark selected. On a side note, the USPTO only registers marks, You, as the mark owner, are solely responsible for enforcement. The most common reason to refuse registration is a “likelihood of confusion” between the mark of the applicant and a mark already registered or in a prior-filed pending application owned by another party. There are two factors taken into consideration by the USPTO to determine if a likelihood of confusion exists with another party (1) the marks are similar, and (2) the goods and/or services of the parties are related such that consumers would mistakenly believe they come from the same source. You may have a similar mark to one that is already registered so long as the goods and services are not related. It is important that prior to filing you determine whether your proposed mark is likely to cause confusion with another mark. Other factors to consider in selecting a Mark is whether people will be able to remember, pronounce, and spell your mark. Another consideration to take is to conduct a complete search of your mark before filing an application with USPTO. This will save you time and money and determine if there are any potential problems that may occur with filing.

In addition, note that State trademarks only protect a mark in a specific state. However, Federal trademarks offer national protection of your mark, but are only available to companies whom conduct business in more than one state. If you conduct business in only one state, many business owners find that this offers enough protection. An owner of Web business may want the protection of a federal trademark to avoid any legal challenges. In order to have a stronger mark and more rights over the use of your mark you may want to consider Federal registration. Many businesses started small like Apple which started in a garage, or Other Businesses many which began as a cottage industry (home-based) and is now widely available.

Filing an Application Filing a trademark application can be complex and you will be required to comply with all requirements of the trademark statute and rules. An experienced attorney can take charge of your filing and advise and guide you before and after the trademark application process, which includes police and enforcement of your trademark registration if issue occurs. An attorney will likely save you from future costly legal problems by conducting a comprehensive search of federal registrations, state registrations, and “common law” unregistered trademarks as well as time while you further your business agenda. In addition, an attorney can assist you in navigating the application process for optimal protection of your trademark rights such as properly identifying and classifying your goods and services, and responding to any refusals to register that may be issued. Contact Singh Law to consult with an experienced attorney in starting your Trademark application today.

Singh Law, led by Principal Seema M. Singh, Esq., specializes in the spectrum of Trademarks and Business Law. Based in Princeton, N.J., we offer free 15-minute consultations for all clients. Email us at info@ssinghlaw.com or call us at 609-454-3165 today.

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Trademark versus Franchise: Which is the Better Business Path?

When answering this question, it really comes down to the philosophy of the business around control and what is the cost of developing one’s own company under a trademark license or accessing a pre-existing business operation of a company through a franchise. Many prospective business owners like the idea of investing in a franchise that has a well-known reputation and goodwill instead of starting from scratch. Others enjoy the thrill of developing their own imprint and nuances under a trademark license with a business experience they can tailor and mould into its own reputation. Both avenues offer strong benefits that a business owner must weigh to make the right choice for this important image and financial path. So let’s get started.

What’s in the trademark approach? A trademark license is where the owner of the trademark also known as the licensor permits the purchaser, known as the licensee, to use or service the trademark in accordance with specific agreed upon terms for payments in royalties. A trademark agreement is a less restrictive and costly form of agreement that allows prospective business owners to still have some form of reputation attached to the business while still maintaining control over how the business is managed. A trademark license agreement offers no such treatment as an owner can award as many licenses without making any special considerations

The Franchise Path. Franchise agreements are sometimes referred to as a trademark’s evil twin because of the restrictions and large investments involved in the process. A franchise agreement is often complex because of the state and federal regulations that are mandated. It also offers some significant benefits and support in terms of training, site-selection assistance and marketing. Additionally, it has an exclusivity clause which ensures that no other person will be awarded a franchise in your location in an effort to reduce competition.

Trademark rights are a subset within franchised business as they are operating under a licensed trademark–the same policies and rules about imaging, customer experience, revenue, etc. The parent company in any franchise operation retains a lot of control over the management of the business. The element of control is one of the most distinguishing features of a franchise from a trademark business.

What’s Next? After finishing your business plan and/or research, you should seek legal advice in determining which form of agreement best suits you. An experienced attorney can advise you of the pros and cons of each form of business such as having control versus having support in respect to management operations and marketing savvy. In the eyes of the law, the two paths are seen as worlds apart so an informed decision is a wise course of action.

Is it Still Possible to Own a Franchise?

The American dream is still a fantasy for many and overrated for others. Different levels of success have been achieved by different groups by using different strategies. Asian Indians have navigated their path of success rising in the boardrooms of different industries and through strong entrepreneurial paths. Today, they own 20,000 hotels in the US and out of this 8530 are independently owned, while 11,626 are franchised. Franchised opportunities are a very popular way used to attain the American dream in this community because of the security which it provides.

 

So the question of is it possible has a clear answer with a resounding yes. The franchising relationship between the parent company and the purchaser of the franchise is the payment of a designated amount for licensing rights to use the brand. Franchising is governed by its own law because of the complexities involved with having many businesses with different owners operating under the brand name, policies and rules. The law of franchise serves both to protect investors, the parent company and the general public. A franchise business is so appealing to many because the model used is a proven and success inevitable. Can you think of how many failing Burger Kings and McDonalds you know? The answer is probably none or quite a small amount because having a franchise is duplicating the business model and strategy of a successful business.

 

Even though having a franchise sounds easy, the process to get there is often very complicated. An attorney that specializes in this area of the law is a necessity because of the huge commitment it entails both financially and emotionally. An attorney who specializes in this area can explain the terms and jargon used with the contract and all consequences of failure of the franchise such as lawsuits or bankruptcies. On the other hand someone who does not specialize in this area may not be able to explain the terms in a clear and concise manner like that of an experienced franchised attorney. Additionally, if a purchaser is terminated or renewing a franchise agreement, an attorney needs to negotiate on their behalf because sometimes terminating a franchise can cause hardship. Becoming the owner of a franchise can be very rewarding but no one should enter into the business with their eyes closed.

 

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International Business, Nationality and Your Business – 3 Important Areas You Must Consider

If you have a business with international management and or production, hire an attorney who specializes in business law. This wise advice is worth noting because an attorney with this special insight can explain how a taxpayer can be most efficient in setting up their business, avoiding some costs with having business in another country, and creating the framework for the business to be successful over time.

 

It is no secret that we live and do business in a global world where we are interconnected in almost every way possible. One lens of globalization in the business sector is seen through jobs and employment. If a US business wanted to spread their wings and establish business in another country, then seeking a thriving marketplace that matches the emerging trends and employment structure is key to starting a business overseas.

 

For example, India is a thriving market place for new and established businesses because of their population is very proficient in areas such as software technology, data services, online customer service, infrastructure and e-commerce.

 

Three important aspects of starting business in a foreign country are the implications of nationality in the business structure. Why is this important?

  • Revenue. Nationality of a company determines which country collects taxes and which country should offer protection to the company if/when there is turbulence in the business location.
  • Location. Nationality determines where the management and control of the business takes place. For example, there is a common misconception that nationality of the company is where the business was incorporated or where it resides—not where the work gets done. Many businesses located in India are used only to carry out production but the management of the company takes place in another country. Therefore, even though these companies also located in India and perform important tasks necessary for the company to succeed, the company would not be an Indian national. This has major implications on the finances of the business because it would now need to declare its profits in order to be assessed for tax purposes in US. This aspect is foundational to avoid being taken to court for tax evasion which carries a penalty of imprisonment.
  • Civil Privileges. Nationality also determines the diplomatic protections by the country if there is civil unrest or political turmoil for the company.

 

As big business and small business alike seek the best strategies to operate their business, nationality will continue to evolve and remain an area of counsel for international success. Equally relevant in strategy is the need for members of the U.S. Asian Indian community to seek counsel as they may also go back to Indian to start companies.

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