Mark Briggs Phoenix Lawyer Answers: How do I get a trademark?

Mark Briggs Phoenix Lawyer Answers: How do I get a trademark?

Mark Briggs Phoenix Lawyer on trademarks

In today’s business environment, a trademark is one of the most important tools for organization to distinguish itself from the competition. A trademark is more than just a legally registered name, logo or phrase. It’s a feeling. It’s an emotion. It’s a brand. A good logo, name or phrase immediately calls to mind images of your company every time someone sees it. Creating this powerful symbol of your company is one thing, and protecting it is another. That is where the trademark legal process comes into play, and needs to be handled correctly. Although there is no requirement that you use a lawyer to help you acquire a registered trademark for your company’s logo, name or motto, I recommend you do so.

  1. Visit the United States Patent and Trademark Office Online

To begin the process of registering your trademark, start by visiting the official website of the US Patent and Trademark Office (“USPTO”). To help make sure that another organization hasn’t applied for a trademark that is very similar to yours, use the “Electronic Search System” feature to search for the competition. Remember that a trademark will always be granted to the first company who applies in a particular area. If there is already a company with your name in your area that has been granted a trademark, your application will be denied. This is a large part of why the research is so important. Sometimes the database at the USPTO is not completely up to date, or you cannot refine your search enough to be certain that you have looked at everything relevant to your search – especially when it comes to logos. Lawyers who practice in the trademarks area usually have subscribed to powerful databases that are more easily searched and come up with more complete results than you can do on your own. Also, interpreting those results and determining whether your mark is distinct enough to warrant a trademark registration is difficult to do on your own.

  1. Fill Out the Online Application

Once you’re sure that you’re applying for a trademark that nobody else has, fill out the online registration form on the USPTO’s website. You will be asked to provide detailed information about the trademark that you’re applying for, the type of business that you run and more. This is a relatively simple process on its face, but how you choose to describe your area of business and the use of your mark can dramatically impact the registration process. Again, this is something an experienced attorney could be helpful in doing for you.

  1. Pay the Appropriate Fees

Once you finish the online application form, you will need to pay the appropriate registration fees before you can continue. This will cost between $275 and $325 depending on the type of business you’re running, when you plan on using your trademark for work and the complexity of the application that you’re filing. Once the fee is paid, you can submit the application.

Once you’ve registered for your trademark, you have the legal protection necessary to help make sure that nobody can infringe on your brand in the future. That logo, name, phrase or other identifying information is now yours and yours alone. Thanks to your trademark, you can now get to work building the brand that you’ve always dreamed of and experiencing the soaring heights in the world of business that you truly deserve. It’s an opportunity waiting to be seized in every sense of the word. However, because this can be a critical element to building your brand, I recommend hiring a trademark lawyer to help you out. This is too important to fumble because you want to save a few bucks.

Photo  Credit: BusinessSarah

Mark Briggs Phoenix Attorney on Crowdfunding

Mark Briggs Phoenix Attorney on Understanding Recent Crowdfunding Laws  

Mark Briggs Phoenix Attorney on Crowdfunding

 

Crowdfunding regulations must walk a difficult line. If they are too stringent, they’ll kill crowdfunding opportunities and associated jobs and wealth, but if they are too lax, they’ll leave millions of small investors vulnerable to risky ventures. Recent regulatory changes seek to capture the best of both worlds, offering increased opportunities without exposing investors to excessive risk.

Widening the Investment Pool

Regulation A+ of the Jumpstart Our Business Startups (JOBS) Act will let more investors take part in crowdfunding. Originally, only accredited investors, or investors with an annual income of at least $200,000 or a net worth of at least $1 million, could take part in crowdfunding ventures, but this law allows non-accredited investors to invest up to 10% of their annual income. Businesses are allowed to raise up to $20 million in crowdfunding investments from both accredited and non-accredited investors, and if a business submits to annual audits, it can raise as much as $50 million.

Platform Provisions

Besides attracting more investors, the JOBS Act will also regulate the platforms on which crowdfunding transactions occur. Title III of the law requires brokers to receive SEC registration before they can open up crowdfunding platforms. Brokers will not be allowed to handle investors’ funds or encourage investments in specific securities. They will also have to guard against fraud, offer channels for investors to discuss the available offerings, and provide the necessary educational materials for prospective investors to make informed decisions.

Altering Advertising Rules

The SEC has recently eliminated the prohibition on private offering advertising, allowing startups to promote their crowdfunding investment products over the radio, television, and social media. The SEC now requires businesses to register their offerings no less than 15 days before they begin to raise capital, and it applies more stringent regulations to the claims that companies make on Facebook, Twitter, and other sites. This makes it easier for startups to raise awareness of their ventures and attract new investors, but it also forces them to be more careful about their social media posts, as any misleading investment claims are now cause for legal action.

As a major source of capital for cash-strapped startups, which generate almost all of the economy’s net job growth, crowdfunding is essential for promoting long-term employment. If implemented as intended, these legal changes should expand crowdfunding opportunities while keeping investors safe, strengthening the economy and providing millions of new jobs. If your company is interested in using crowdfunding as a source of capital, I encourage you to find a good corporate finance lawyer in your area who can help you with the details of doing it right.

Photo Credit: Kuma Tai

Mark Briggs Lawyer: Filing Taxes for a Small Business

 Mark Briggs LaMark Briggs Lawyerwyer: Filing Taxes for a Small Business

For small business owners, few tasks are as critical as the timely and accurate filing of federal and state taxes. Using the following best practices for properly tracking and reporting income and expenses, working with the right professionals, and following all tax-related laws and regulations will help keep your business out of hot water and on the path to success.

 Keep accurate records

Staying on top of taxes begins with appropriately tracking business activities, including income from all sources and expenses — including equipment purchases and personnel costs. Small businesses often find themselves in trouble over improperly categorizing employees as independent contractors and failing to pay appropriate employment taxes; so keeping accurate records can help avoid this mistake. Keep track of where your business may have a legal presence to ensure payment of state sales taxes and other fees. Make sure records about equipment are accurate — including amounts paid and dates any equipment or vehicles went into service. This will help you accurately calculate depreciation expense.

 Work with knowledgeable professionals

If you choose to handle filing your business taxes yourself, invest in tax preparation software. I think for most business owners it is smarter to hire a tax accountant with experience in your industry and/or with your size of business. If you end up owing money to your state tax agency or the IRS, work with your tax professional to mediate the situation and work out payment plans. For managing benefits such as your company’s retirement plan or health insurance, I also recommend hiring the right financial and insurance industry professionals, because these areas are complicated and can cost you dearly if you make a mistake. Spend your time focusing on what you know how to do best: running your business.

 Understand and abide by state and federal rules

A common mistake by small business owners is using withheld payroll taxes as short-term capital during lean times. Your tax professional will tell you that this is a dangerous practice. Correctly calculating and paying estimated taxes on time also seems to trip up many small businesses. Calculating incorrectly or underpaying either of these items can cause major headaches down the road. Some business owners also incorrectly believe that in the event of an audit, the IRS will need to prove wrongdoing; in fact, the burden of proof is on the taxpayer. So, investing in good systems and working with qualified professionals is a smart move.

Always consult with your tax adviser about your business’s unique tax situation. For forms and general tax information, visit the IRS Small Business and Self-Employed Tax Center.

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Does my business need a shareholders agreement?

Mark Briggs: Shareholder AgreementThe only time your business should not have a shareholders agreement is when there is only one shareholder. Granted, there is no law that requires a company to have a shareholders’ agreement in place, but it is a really good idea. Shareholders’ agreements help the company run properly, keep the shares in friendly hands, and clarifies each shareholder’s rights and responsibilities. Unfortunately, most companies are formed quickly and on the cheap, which means they usually lack key documents like bylaws and shareholders’ agreements. So, if you are in that boat, do yourself a favor and get a shareholders’ agreement in place ASAP before a problem arises. Read on to learn about the key benefits of having a shareholders’ agreement for your business.

  1. Shareholders’ agreements protect the rights of the shareholders, such as getting access to the company’s books and records on a timely basis, being notified of important activities, and having the right to vote on big company decisions.
  2. Nobody wants to be in business with another person by accident. That is why a good shareholders’ agreement should prevent shares from being sold or transferred to a new shareholder without the existing shareholders’ permission. This often comes up in cases of death and divorce, but could also arise if a shareholder just wants to sell off their shares for some extra cash.
  3. If the shareholders have a dispute among themselves or with the company, there should be a quick, relatively easy process to resolve that dispute short of an expensive, public and time-consuming lawsuit. A good shareholders’ agreement can create such a process, starting with an in-person meeting, followed by a mediation, and then possibly an arbitration or buyout process. This is far better than letting a judge decide everyone’s fate.
  4. If a shareholder wants to exit a privately held company, it is often impossible to find a buyer for their shares, because no public trading market for those shares exists. A shareholders’ agreement can provide a process for allowing a shareholder to sell their shares to the company or other shareholders, including how those shares are valued and the payment terms.
  5. A shareholders’ agreement can also give some certainty as to how and when the company will determine and pay distributions of profits to the shareholders. This is particularly important in “pass through” entities like S-corporations, partnerships and certain LLCs, where shareholders are responsible for paying taxes on their share of the company’s profits, regardless of whether the shareholders ever received any cash from the company.

Although drafting a shareholders’ agreement at the outset of your business venture may seem time consuming, in the long run the benefits of having such an agreement legally in place can save your company much time and money.

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Mark Briggs: Corporate Contracts to Always Keep On-Hand

Mark Briggs: Corporate Contracts

 

 

 

 

 

 

Mark Briggs: Corporate Contracts to Always Keep On-Hand

No matter what type of business you may own, there will be many occasions when you should to put an agreement in writing. Even good people trying their best can have misunderstandings over key terms of an oral agreement, so it is a good idea to get any important agreements in writing. Below are a few of the most commonly used business contracts.

Nondisclosure / Confidentiality Agreement

This type of contract is often used to protect sensitive or confidential information during a business transaction. For example, if your business handles clients’ confidential information on a daily basis, then you’ll want to have all of your employees who have access to this information sign a non-disclosure agreement before hiring them.

This way, in the event that any confidential information is leaked, you have the legal grounds to prevent further disclosures and be paid for any damages those disclosures caused. Nondisclosure agreements can also be used with clients and vendors who have access to confidential information, such as financial statements and business plans.

Promissory Note

A promissory note is a legally binding and corporate version of an “IOU” and is used frequently in the business. Any time a business lends or borrows money, a promissory note should be used. Promissory notes should at least include the amount owed, interest rate, payment amounts and dates, penalties for late payments, what constitutes a default under the note, and what happens if a default occurs.

Bill of Sale
A bill of sale is written proof of the purchase of one or more assets. It will list the buyer, seller, date of sale and assets purchased. Bills of sale are useful in transactions where one company buys all or a large part of another company’s assets. Those agreements are pretty long and have a lot of details in them that third parties don’t need to see. So, a bill of sale is sometimes used as a supplement to the main contract as a document to show third parties to transfer title to the purchased assets.

These are just a few of the most important business contracts you’ll likely encounter as a business owner. By being familiar with them, you’ll be in a better position to scrutinize contracts before you sign them.

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What are the differences between partnerships and joint ventures?

Mark Briggs Phoenix

Succeeding in business is all about taking advantage of opportunities. To do so, however, requires having access to the necessary talent, tools, and finances. Very often this means joining forces with others who have similar interests.

There are several forms such an alliance can take. Two of these are partnerships and joint ventures. While often thought of interchangeably, they are crucial differences between each type of organization. These include:

  • Partnerships are usually long-term associations. They are intended to share the burdens associated with most or all aspects of running a business; as such, their focus can be quite broad. Joint ventures, on the other hand, are typically formed to take advantage of a particular opportunity; as such, their focus is generally quite specific and their life span is shorter than a partnership.
  • A partnership is regarded as a “pass through” structure, meaning that the profits and losses of the partnership are attributable directly to the partners. Joint ventures can be formed in various ways, from a simple contract laying out each party’s rights and obligations, to a formal entity like a corporation being formed and its shares being issued to the parties involved in the joint venture. If a corporate form is chosen, this could lead to some tax advantages and disadvantages, depending on the situation. You should always consult with a tax accountant before deciding how to structure a joint venture.
  • Typically, the partners are personally responsible for the liabilities of the partnership. On the other hand, a joint venture can offer some greater degree of liability protection to its participants, particularly if the joint venture is formed as a corporation or limited liability company.
  • Fiduciary responsibilities. In most cases, the each partner has fiduciary duties to the partnership and their fellow partners. With joint ventures, however, these responsibilities are usually limited to the venture itself.

Partnerships vs. Joint Ventures: Which is the Right Way to Go?

The answer to this question varies from one situation to the next, depending on factors such as these:

  • The risk tolerance of each party in the organization.
  • The resources each party brings to the table.
  • The overall goals of the parties; i.e. do they intend to work together over the long-term or for a limited period of time only?

Both partnerships and joint ventures offer their share of benefits and shortcomings. Which of the two is best for your situation is a question to discuss with an attorney, accountant, or other professional. With sound guidance, both your interests and those of your associates can be well represented.

Photo Credit: thetaxhaven

 

 

5 Things to Know Before Starting a Franchise

Starting a Franchise

Investing in a franchise makes a lot of sense for many people. The good ones are almost turn-key ready businesses with processes, products/services, logos and business plans. But, before you invest in a franchise, it’s important to be realistic with your expectations and understand the complex rules that often accompany this type of business. Although there are thousands of successful franchisees around the country, many of them also fail. Sometimes the brand is not managed well, its products/services are inferior, or its costs are just too high. So, it’s a mistake to assume your franchise will be an overnight success simply because it has a big name attached to it. As you research an opportunity, there are five factors you should consider before starting a franchise:

  1. Local Demand and Competition: Is there a demand for the services or products offered by the franchise? If so, what is the level of competition from similar businesses in your local area? Find out how your products or services compare to those of local competing businesses.
  2. Rules and Restrictions: Your franchisor will place restrictions on how you run your business. Have a clear understanding of the rules and restrictions regarding things like operating hours, prices and discounts, suppliers, marketing, décor and employee uniforms.
  3. Fees and Royalties: The upfront cost of the franchise is only the beginning because you will incur additional franchise costs, like advertising/marketing fees, royalty payments and products. Get a clear understanding of those additional costs, and ask about which costs could be increased by the franchisor without your permission.
  4. Territory: Depending on your type of business, the franchisor may restrict you to a specific geographical territory. If you are going to have boundaries, make sure they are large enough for you to have a good customer base. Also, find out if the franchisor can change your territory or let another franchisee in your territory.
  5. Support: Once the initial training is out of the way, does the franchisor offer ongoing support, if needed? If so, what will that support cost you? Make sure you have the support you need to be successful. Most people need help in areas where they lack experience or education, so be sure to know what you don’t know and get the help you need.

When you research the pros and cons of owning a particular franchise, make sure you also know the rules regarding the sale of your franchise if you need to pull out of the business for some reason. As long as you do your homework, you can open a successful franchise with confidence.

Photo Credit: Re: Group

How Bloggers Get Sued

Rosie the Blogger

Blogger Roni Loren shared a story on her blog of being sued for misusing photographs that she pulled from another site. She thought that by giving credit to the original source she was covering herself from liability. She was wrong.

In today’s digital world bloggers are everywhere. They write about anything from sugar-free cooking to fashion to automotive technologies. Behind many of these blogs are writers who have made this their livelihood. What used to be “online diaries” and “scrapbooks” for these bloggers, have become sources of income — but along with the proliferation of bloggers comes legal responsibilities for intellectual property.

How bloggers get sued and how to avoid it:

  1. Cite your sources. This should be an obvious one. We’ve learned our entire lives to cite sources in school, and writing on paper versus typing a blog is no different. When you are stating facts and/or quotes that are not general knowledge and were created by someone else, you should give them credit.  Be aware though, linking to a source is not the same as citing it — links can be broken, so citations should come in the form of in-copy attributions even if a link is also used, like so: “One thing to bear in mind when quoting text from someone else’s website, however, is that many companies carry content usage guidelines that will let you know if they do or do not want you using their content,” Corey Eridon, Hubspot.
  2. Give photo credit to images that you don’t own. I’ve mentioned this before in a previous post. If you want to use images in your blog posts, there is a safe, easy way to go about it. There’s a great website called Creative Commons that I use to find blog pictures in a safe, responsible manner. Just go to its search page, check the boxes for images that you can “use for commercial purposes” and “modify, adapt, or build upon,” and then search one of the five image-related options. Personally, I am a big fan of Flickr—its users tend to be very clear about how, and when, you can use individual pictures. Each image comes with an accompanying description of its copyright status, so you can be sure of whether or not (or how) you may use it legally. Just because a photo shows up in Creative Commons does not mean you may use it without attributing it to the original owner.
  3. Disclose your paid endorsements. Many people in the blogging world are unaware that they should tell their audience when something they write is actually a paid advertisement. This is especially true wow that the Federal Trade Commission recognizes blogging as more than a hobby. For more information check out the FTC FAQ Page. You can still provide useful information while getting paid, so there is no reason to not level with your audience about it. Hiding the truth usually hurts you in the long run, so be transparent about advertising.
  4. Defamation and freedom of speech – there’s a difference. The proliferation of gossip blogs is at an all-time high. Kids in high school, college students, adult socialites and celebrity gossipers are a dime a dozen. Regardless, you need to be cautious of the things you say about others (regardless of their public figure status) to avoid getting hit with a lawsuit. Anything you write that harms a person’s reputation and is untrue can expose you to scary amounts of liability. Even if you write something true, which by definition would not be libelous, if it harms a person who gets mad enough to sue you over it, you could spend a fortune defending yourself. Lawyers are expensive! You can disagree with people in a professional manner, and you can share your opinions about other people’s actions, but try to avoid mean-spirited personal attacks and gossip.

Whether you getting paid for your blogging expertise or just posting your thoughts for fun online, you need to make sure that you are following the rules of the web. Protect yourself by (1) citing your sources, including giving proper credit for images you don’t own, (2) disclosing when you are being paid to write something, and (3) staying away from badmouthing others.

Photo Credit: Mike Licht

Briggs Law on Records & Tax Forms: What the IRS Requires of My Small Business- Part 1

US Federal Tax Day

You might think from the title of this blog that the IRS has an easy-to-find list of the financial records that small businesses are required to keep. Ha! Nothing is that easy with IRS.

The answer to the question in the title is: “It depends on the type of small business you own.”  So, you first need to examine your business’s tax filing requirements and then consider which records the business needs to be keeping.

Tax Filing Depends on Corporate Structure

Solo business: Do you own a sole proprietorship? If you do, you must file a personal income tax return. The tax forms you might need include Form 1040, Schedule C and Schedule SE for self-employment income, and Form 941 or Form 944 for Social Security taxes, Medicare taxes, and income tax withholding.

Partnership: If your company is a partnership, then the partnership must file an information return annually that includes the partnership’s revenues, expenses and income. The partnership itself does not pay taxes because each of the partners pay taxes on the income they gained via their ownership of the partnership. The partnership must file Form 1065, while the individuals in the partnership are obliged to file the same individual tax forms that sole proprietors file.

C-Corporation: Is your small business a C-corporation? If it is, your corporation must pay corporate taxes on its profits.  The shareholders pay taxes only on the dividends that the corporation makes to them. If you are an employee of the corporation, you also have to pay income taxes on whatever wages the corporation pays you. The corporation must use Form 1120 for income tax and Form 1120-W for estimated taxes. Shareholders are required to use the same personal income tax forms that sole proprietorships use.

S-Corporation: S-corporations are taxed much like partnerships, in that they generally do not pay taxes directly on their income, but they do file informational returns with the IRS.  The shareholders of the corporation each pay income taxes on their pro rata share of the corporation’s profits. The S corporation must use Form 1120S to report the taxes it owes.

Briggs Law: Where Can I Get More Info on Corporate Taxes?

Publication 583, “Starting a Business and Keeping Records,” is the best source for information on what tax forms the IRS requires for small businesses. Other beneficial publications are Publication 334 for sole proprietorships, Publication 541 for partnerships, Publication 542 for corporations, and Form 2553 and Form 1120S for S corporations.

Because different kinds of small businesses need to file different tax forms, the financial records they need to keep is also different. However, the IRS clearly states in Publication 583 that all small businesses must keep the supporting documents used to compile the information listed on the tax forms.

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What is Bankruptcy?

Bankruptcy

If your business is struggling under increasing debt you might find yourself considering bankruptcy. There are three types of bankruptcy for you and your business – Chapter 7, Chapter 13 and Chapter 11. Your attorney can help you choose the right type, based on your circumstances and your long-term goals.

Bankruptcy should never be entered into lightly. It leaves a deep scar on your credit history and damages your reputation as a small business owner. This is a means of last resort to get out of debt.

Chapter 7 Bankruptcy in Arizona

Chapter 7, also known as “liquidation bankruptcy,” allows you to discharge your personal debts. The court will appoint a trustee who will oversee selling your assets and paying creditors. Individuals, partnerships, sole proprietorships, LLCs and corporations might be eligible to file Chapter 7 bankruptcy, depending on how much they owe and how much revenue they generate.  They would choose this type of bankruptcy if they want to cease business operations.

If your business is a sole proprietorship, bankruptcy will eliminate debts owed to suppliers, accountants, consultants and other creditors. It will also discharge leases taken out by a sole proprietor, including your commercial lease and equipment leases.

This is certainly a drastic step for a business to take. Chapter 7 will result in you handing over the finalization of your company to the state of Arizona. You will cease operations, and the state bankruptcy court will liquidate your company and pay off creditors.

 

Chapter 13 Bankruptcy

Chapter 13 is an option for individuals who have regular income and sole proprietorships. Small businesses cannot file under Chapter 13 if they are run through corporations, partnerships or some other operating agreement. Chapter 13 allows you to restructure your business and continue operations – as long as you do not owe more than $1,149,525 in unsecured debt and $383,175 in secured debt (adjusted periodically to reflect changes in the consumer price index). The court will appoint a trustee, who will collect and disburse your payments to creditors. If you fail to make payments, the trustee can advise the court to force you into Chapter 7, which liquidates your assets and closes your doors.

Chapter 13 gives you the ability to pay back your debts in a time frame and at a rate that you can manage and to keep property as necessary. You business, your house and your car can all remain in your possession as long as you make your payments on time.

 

Chapter 11 Bankruptcy

Chapter 11 is not a favorite of small businesses because it involves a great deal of work and expense, but it might be preferred because it requires no time limit for debt settlement, which Chapter 13 requires.

If you can show that your company has a future and that restructuring and reorganization of debts is a viable option, Chapter 11 could give you the opportunity to rebuild and recover. You should understand, however, that Chapter 11 will take a significant investment in time and effort from you, your management and your attorney. It is a more expensive option than Chapter 7 or Chapter 13, but it may be worth it if you can come out on the other side with a healthy company.

Photo Credit: Simon Cunningham