Avoid Trademark Conflict when Using Artwork to Brand Your Business

Using artwork to identify (brand) your business offers many advantages over using a live person, such as your CEO or a media spokesperson. Artwork never ages or dies and is not subject to scandal.  Your business will be easier to sell later if you have a strong brand identity, not identified with any person, available for transfer to a buyer.

Before buying a license to use any artwork as your business brand, though, see a trademark and copyright attorney for a brand development consultation.  A modest amount of legal research can confirm that the artwork you are interested in won’t give rise to a trademark dispute with a business in the same general industry.  For example, a dental office could choose to be identified by a smiling T. Rex illustration, but an insurance agency identifying itself with a T. Rex could find itself in a trademark dispute with Geico, already identified by an illustration of a standing green gecko.

Buy Exactly the Copyright License You Need

Your copyright attorney can also help you select the exact licensing rights you need, so you don’t waste money on a license that is overly broad. For example, a dental office might want to license a photo-realistic T. Rex for use in a banner at a consumer tradeshow, to reinforce its message about the benefits of choosing modern rather than “Jurassic” dentistry, but might be unsure if this would develop into a business identity. The copyright attorney would likely recommend a short-term print-only copyright license, which requires only a form agreement.  If the T. Rex was a big hit at the tradeshow, then the dental office could decide whether to buy print rights for a longer period of time, or rights to additional uses, or even exclusive U.S. rights.

When to Obtain a Written Assignment or Exclusive Copyright License

The creator of an original work of art has the right to decide who can use it, how, when, and where they can use it, how long they can use it, who can adapt it to other forms, and who can financially benefit from reselling it.  This “bundle of rights” is part of the “copyright” that every creator has by law in their artwork, whether or not they register or document their copyright.

If you intend to use a specific image or set of images to create your business identity or brand, you will need a signed written agreement that either permanently assigns (sells) all rights in the artwork to you, or grants you an exclusive right to use and adapt the artwork for a set number of years in a defined geographical area.  An oral agreement, or even an invoice, cannot protect you if the artwork’s creator sells the same image to one of your competitors.  It will also not be enough to protect you from a copyright infringement suit by the artwork’s creator if, for example, you decide to use your exclusive rights to brand a consumer product for sale on the Home Shopping Network, and the creator had no intention of granting you this right.

Call San Diego Law Firm for Help with Copyrights and Trademarks

San Diego Law Firm’s experienced business lawyers can help you with all issues of copyright and trademark licensing, sales, and assignments, including brand development and advertising.  For an appointment please call San Diego Law Firm today at (619) 794-0243.  We look forward to helping you.

There are many examples in California case law, and they generally do not favor the party who claimed that a commercial real estate “agreement to agree” was not enforceable because the parties could not agree.  For example, the California Court of Appeal in San Diego has noted with approval the authority of a jury to determine a “reasonable rental rate” for a commercial lease renewal where the landlord has not “negotiated in good faith” for a “reasonable” amount with the lessee of the commercial premises.  Similarly, the California Court of Appeal in Los Angeles has held that a “letter of intent” setting out the general terms for the purchase and sale of an ice-cream manufacturing plant is an enforceable “contract to negotiate an agreement” that required good-faith negotiation. The court determined that the amount of damages that can be awarded for one party’s “failure to negotiate a contract” is the amount lost by the other party who has detrimentally relied on the letter of intent.

Even more troubling, the federal Ninth Circuit Court of Appeals in California recently held that a signed “Final Proposal” that was missing a material term – the length of a ground lease – nonetheless created an enforceable ground lease with a put and call option to purchase.  The court upheld a $15.9 million award for the landlord’s lost rent for a lease term that was decided upon by the jury based on all the evidence, and for the loss of the value of the put option, even though the parties had been unable to agree on all the terms of the final agreement.

The bottom line:  when you are negotiating a commercial real estate contract in California, never sign any document – even a proposal, a letter of intent, or a current lease calling for future negotiations – unless the document also provides that either party can change its mind for any reason, and refuse to negotiate or exercise good faith to reach an agreement on any material term of a future contract, without further liability for any damages, including damages for detrimental reliance.

Call San Diego Law Firm for all Help with Commercial Real Estate Transactions

Before you negotiate or sign any commercial real estate agreement, contact the skilled business real estate lawyers of San Diego Law Firm.  We have many years of experience in negotiating and documenting all types of commercial real estate contracts, and have successfully represented many businesses in negotiating contracts to buy, sell, purchase, lease, build out, and develop commercial property.  We can help you and your business as well.  Please call San Diego Law Firm at (619) 794-0243 to schedule a consultation. We look forward to helping you.

Our primary anti-discrimination laws come from California’s Fair Employment and Housing Act (FEHA), the federal Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). Taken together, these laws cover discrimination based on the usual categories, such as gender, age, race, and religion. They don’t say it’s illegal to discriminate against the ugly, or for other appearance-related reasons. And while there are a few laws here and there outlawing appearance-based discrimination, such as some cities’ local laws (ordinances), for the most part it’s still an open question.

But even if there isn’t a law protecting against appearance-based discrimination where you live, the complaint might instead be based on other forms of discrimination that are illegal, such as sex discrimination. Regulating personal appearance may even interfere with privacy rights. This all goes to show that there are a lot of legal issues to evaluate.

Employers have rights to maintain a professional workplace, and there are some limited exceptions to discrimination, but the law continues to develop in this area. If you’re an employer, this means you must tread carefully. Getting qualified legal advice can be key to reducing your risk of ending up in court. Generally, employers will want to steer clear of controlling employees’ appearances in ways that don’t really have much to do with legitimate job performance matters…but there’s much more to it than just that. Every situation is different, and the answers aren’t easy, but a qualified employment lawyer’s advice can help guide your business decisions. For example, do you know which questions you can and can’t ask an applicant during an interview? Is your criteria for hiring, promoting, and firing legal? Does your code of conduct impose stereotypes on your employees? And remember, even if you’re cautious about the pitfalls, it’s just as important that you have a company policy firmly in place to prohibit the kind of employee conduct that can get your business into legal hot water.

Call (619) 794-0243 and meet with San Diego Law Firm’s experienced employment lawyers if you’re facing an employment discrimination charge or lawsuit. We also welcome the opportunity to help you develop effective workplace policies that can help your business avoid legal trouble and greater expense.

What Does a Copyright Protect?

Federal copyright laws protect the expression of an idea in one of several formats.  These formats include a literary work, graphics, text, and others.  If a work is copyrighted, the owner has the exclusive right to display, reproduce, or create derivative work based on the copyrighted work for commercial purposes.

Copyright infringement disputes have become more common due to the internet.  Some examples of copyright infringement visible on websites include:

• Use of pictures copied from another website to sell the same products
• Use of the logo of another business
• Use of text copied from another website

How Can a Business Protect Itself?

Any business that sells products or services online should register its text and original photos and graphics for copyright at the U.S Copyright Office and obtain a Certificate of Registration. Registering a work before an infringement is important because it allows the business to collect attorneys’ fees and statutory damages if it must sue to protect its copyright

“The Cease and Desist Letter”

A business that finds its copyrighted work being used by another can often stop the use by sending a “cease and desist” letter. This letter notifies the user that they are infringing on a copyright, and demands that the infringement stop.  It may also include a demand to compensate the copyright owner for lost sales, and may demand that the infringer pay the copyright owner the profits generated by the infringer’s use of the logo, graphics, text, or other material.

These letters should not be sent casually, as the infringer may have a valid defense.  For example, the apparent infringer may have a license to use the work given by the person who originally produced it – for example, a photographer or artist – and if their license is exclusive, they may seek to enforce it to the loss of the business who thought they owned the copyright.  The apparent infringer may also have a legitimate claim that they made a legally protected use of the work.

If the infringer refuses to remove infringing material from his or her website, another remedy may be available.  If the infringement is clear and there is documentation to substantiate the copyright, then it is possible to ask the website hosting company to remove the website from its servers, under the provisions of the Digital Millennium Copyright Act.  Most U.S.-based, and many European-based website hosting companies, upon receiving a copy of the cease and desist letter and substantiating documents, will comply.

Getting Skilled Help with Copyright Law

Copyright law is complex. Whether you need to have your original work copyrighted, stop an infringement on your logo, text, or graphics, or defend against a claim of infringement brought against you, the experienced business attorneys at San Diego Law Firm can help.  We can provide you with the skilled copyright assistance you need to protect your business and its assets, including intellectual property such as your logo, photos, graphics, advertising and text.  Please call us for more information or an appointment at (619) 794-0243.  We look forward to helping you.

For instance, sometimes tension is created because of a flawed management approach.  In ManagingEmployees.net, longtime business manager and blogger Pat Brill explains that effective managing means finding a balance between your focus on employee performance and establishing a connection with employees. 

Brill suggests that you learn to identify with the thoughts and feelings of your employees on their work.  Not only can this help your business by boosting performance, but if you’re able to connect with your employees, this can go a long way in reducing the chance of a lawsuit.  The last thing you want is a disgruntled employee who wants to get even when they leave the company. 

Use an Annual Employee Acknowledgement

Another important step toward reducing employee lawsuits is to have an employee annual acknowledgement.  Even if you are sued, a good acknowledgement can still help you improve your chances of winning the lawsuit at trial (or, even better, getting the case dismissed early).

Here are a few general examples of what your written acknowledgement should do:

      ●    Make sure that your employee knows he or she is an at-will employee, and that others are not authorized to change this relationship.  Also confirm that related promises haven’t been made.  This helps you minimize the risk of a wrongful termination lawsuit because when an employee is “at-will,” it means that both the employer and the employee have the right to end the employment at any time and for any or no reason (except, for example, because of retaliation or discrimination).

      ●    Confirm that the employee received the most recently dated employee handbook, and that the employee knows he or she is responsible for its contents.

      ●    Create the type of record that will reduce the chance your employees will sue you for wage and hour issues, harassment, and discrimination.

      ●    Remind the employee that only the employer has the right to change any policies, and can do so at any time.

Not every acknowledgment lives up to its goals, so it’s important to have a knowledgeable business and employment lawyer create a well-planned document.  We’ll prepare your annual acknowledgment to include important terms and make sure it’s in clear and understandable language for employees. 

Also remember that an old acknowledgement may not do you very much good if you’re sued.  A yearly acknowledgement is one of several smart and inexpensive business practices you should put into place.  It may save you a lot of time and money down the road.  Contact San Diego Law Firm’s seasoned business attorneys for more employer advice, including how you can avoid common traps that lead to wrongful termination and other lawsuits against your business.  Call San Diego Law Firm at (619) 794-0243.

What happens if you keep property titled under your personal name? 

If you’re sued and lose the case, then your personal bank accounts and other assets can be used to pay off a judgment.  But if you create an LLC or corporation, then typically only the property in the name of the company will be subject to these debts. 

To further limit potential liability, you should consider placing each investment property you own in a different company.  That way, a lawsuit against one company doesn’t affect other companies holding additional real estate. 

We’ll advise you on the best practices you should employ to you maintain the protections and benefits of California LLCs and corporations, and explain the tax implications and other important considerations. 

Real estate owners should keep in mind that lawsuits can come about for many different reasons, such as:

      ●    Accidents and injuries on the property

      ●    Legal disputes with tenants

      ●    Creditor disputes

Some of these claims could be partially covered by any insurance coverage you may have, but all too often the liability exceeds the coverage.  That’s why many people buy investment or rental properties through an LLC or corporation (or transfer title to one of these companies if the real estate is already owned under the investor’s personal name).

How else can you maximize the success of your real estate investments?

On the business end, investor and blogger John Fedro shares his advice in “5 Ways To Streamline Your Real Estate Investing Business Machine,” including:

      ●    At the top of Fedro’s list is a recommendation that you specialize in one real estate niche, because if you take on too much there’s more of a chance that you’ll fail. 

      ●    You’re also forewarned that even though not everything about your real estate ventures is exciting, you can’t ignore your responsibilities.  To that end, he suggests you make sure you complete at least one real estate task every day. 

      ●    Also do your “due diligence.”  In other words, before buying, thoroughly inspect every property so that you don’t end up in a financial and legal disaster later.  (This means inspecting the physical condition of the property, and looking for potential legal problems with the property.)

Before you buy real estate, contact your real estate attorney at San Diego Law Firm to evaluate the many legal issues involved in your real estate transaction. 

Don’t wait too long, because an LLC or corporation won’t protect you from claims created while the real estate was owned under your personal name.  Find out whether an LLC or corporation is a good option for ownership of your investment properties by contacting San Diego Law Firm’s skilled real estate attorneys at (619) 794-0243.

You’re probably cautious about who to bring in as a co-owner, and you might not be sure of what criteria to focus on.  Professional consultant Mary Abbajay writes in her blog about “The Partnership Paradox: How to Choose a Business Partner.”  She suggests that you first look at yourself, because this will help you identify the things you need in a business partner.  This includes examining your own goals, strengths, and weaknesses.  Abbajay then suggests a few more questions to ask, including:

      ●    Will this person be able to invest financially in your business, now and in the long term?

      ●    What types of benefits will this person likely bring (or not bring) to your business?

      ●    What kind of network does he or she have?

      ●    Does this person share your work ethic?

If you do decide to add another co-owner, make a smart decision for your business by first looking into the many legal and tax issues that can affect you.  For example, here are just a few more things that will also play a role in your decision to add a business co-owner:

 1.  The law sometimes limits co-ownership

Under California law, you can’t always bring in a new co-owner.  For example, if you’re in a professional corporation, the law generally requires that every co-owner be licensed in the profession.  Sometimes, California licensed professionals can join your business as co-owners even if their license isn’t in your specific profession (such as in a professional medical corporation).  In these very limited situations, exact legal requirements must be met.  But in most cases, only licensed professionals in your same field can be co-owners in a professional corporation. 

2. Get your agreement in writing

A written agreement is required for many businesses.  You may already have a written agreement, so make sure you follow any rules in that agreement about adding new owners.

Partnership agreements, operating agreements, and shareholder agreements are all examples of written contracts between you and the other co-owners.  This agreement is your opportunity to create a strong business relationship with your new business partner, and detail your business expectations and responsibilities. 

Never depend on vague oral agreements.  Your business is too important, and the risk of misunderstandings that can damage your business is too great.  Here are a few terms to discuss with each other and then include in your agreement:

      ●    Set out the ownership shares, purchase price to buy into the business, and the payment terms.

      ●    Decide if the new co-owner will only be an investor, or also work for the business and be paid a salary.

      ●    Clarify everyone’s rights and responsibilities in the business (including day-to-day management and decision making roles).

      ●    Agree on how profits and losses will be divided.

      ●    Create an exit strategy.  Usually, this includes a “buy-sell agreement” that’s used in case someone leaves the business later.  Without a buy-sell (or “buyout”) agreement, you could get stuck with someone you don’t want for a business partner.

3.  Look carefully at how your business is set up

There are many different business structures, and not all are created equal.  The most common business forms are:

      ●    Sole Proprietorships (a business owned by a single person),

      ●    Partnerships (including “limited” and “general” partnerships),

      ●    Limited Liability Companies (LLCs), and

      ●    Corporations (including S-chapter corporations and professional corporations).

If you decide to bring in a new co-owner, you may need to change your business structure to address the changing tax and legal issues for you and the incoming owner.  Keep in mind that your options can be limited by California law depending on the type of business you run. 

Some of these business structures provide zero protection for a business owner’s personal assets.  This means money and property in your personal name can be subject to business debts.  Business structures like LLCs and corporations can help avoid this personal liability. 

We’ll help you weigh the benefits and drawbacks of each.  In any case, don’t wait to change your business structure after it’s too late to protect your personal assets. 

Contact your lawyer at San Diego Law Firm for guidance when you expand your business’s ownership circle.  Do your part now to set things up right, because a few simple steps can often help you avoid headache and expense later.  Call San Diego Law Firm’s business lawyers at (619) 794-0243.

If you do need to hire new employees, don’t lose sight of the legal issues that go along with hiring.  A few examples here include possible discrimination when advertising for new positions, questions you can’t ask when interviewing potential employees, and the terms of employment.  Federal anti-discrimination laws and additional protections under California law make discrimination illegal when based on categories that include disability, marital status, sex, age, national origin, race, sexual orientation, religion, medical condition, and so on.  Exceptions are very limited (e.g. a women-only hiring policy for women’s locker room workers) and have to be evaluated on a case by case basis.  Discrimination can occur in all aspects of employment, even well before hiring someone when your business advertises a job, chooses its recruitment methods, or interviews candidates for an open position.  When it comes to interviews, you have to be careful not to ask questions about the applicant’s age, what his or her childcare arrangements are, about plans to have kids, or anything else that relates to a status that’s protected from discrimination if the question isn’t required to determine the applicant’s ability to do the job and isn’t legally acceptable.  Discrimination laws are complex, and you need to speak with an attorney who can explain the details of how these federal and California laws apply to your business practices. 

Aside from discrimination issues, when hiring a new employee you have to be clear about several terms of the employment relationship to help prevent disputes (and potentially lawsuits) later on with that employee.  Misunderstandings can often be prevented with non disclosure agreements (also called NDAs or confidentiality agreements), and employee handbooks or manuals that make clear whether the employment is at-will and set out company policies without creating unintended terms of employment.  These are just a few general examples, but keep in mind that many other issues can come up when dealing with prospective hires and current employees.  We’ll prepare important agreements you may need and advise you on the legal aspects of running a business, including compliance with California’s harassment laws, wage and hour laws, and employee termination rules so you can avoid many common disputes that carry serious consequences.  Contact San Diego Law Firm to learn more about the best employment and hiring practices and how you can minimize the risk of getting sued.  Our experienced business lawyers can be reached at (619) 794-0243.

- Confidential client or customer lists

- Marketing plans

- Manufacturing processes

- Formulas or recipes

- Information or materials shared about your product, brand, designs, or other intellectual property

- Terms and conditions of services provided to clients

These may be considered trade secrets, and you often have to share this information with others in order to pursue opportunities and expand, or for practical reasons such as when you interview prospective employees.  Consequently, your business has to take the right steps to ensure that your proprietary information remains secret and outside of your competitor’s reach.  If you don’t, and someone reveals your confidential information, then the chances are you won’t be able to hold them legally responsible to you for your financial loss.  For this reason, not only is it important to use non disclosure agreements, but even before having someone sign an NDA, you have to be careful about whom you disclose confidential information to, and make sure you only disclose information to the extent necessary. 

In doing so, generic NDAs can be easy to use, but can often provide a false sense of protection.  That’s because when creating a non disclosure agreement, it’s important that its terms are tailored to your situation and are shaped by California law.  This will strengthen the likelihood that your NDA will be upheld in court if needed.  A fine line must be walked when drafting a confidentiality agreement, and we’ll work to create an NDA that’s specific enough to be legally enforceable, while being broad enough to cover all confidential information.  A non disclosure agreement is a valuable deterrent, although it can’t guarantee that someone won’t reveal your trade secrets or use the information for their personal benefit.  Even so, by using an NDA you may be able to sue for compensation for the harm suffered or for the profits gained by a competitor, or take legal action to stop someone from further disclosing your trade secrets.  Act soon to guard against a confidentiality breach, and by doing so you’ll protect the time, effort, and money you’ve invested in your business.  For help in securing your trade secrets through a non disclosure agreement, or if someone has misappropriated your confidential information, be sure to reach our skilled business lawyers at San Diego Law Firm by calling (619) 794-0243.

To the extent possible, you’ll need a buy-sell agreement that’s comprehensive and covers many different scenarios in anticipation of what could happen in your business.  The purchase of the departing owner’s share may be made by individual co-owners or the business entity itself, and the best purchase structure often depends on the size of your company.  You may also be asking about where the money will come from to buyout a co-owners share.  In this respect, small business owner John Ingrisano highlights the value of a buy-sell agreement in his blog on TheFreestyleEntrepreneur.com, since in certain situations a buy-sell agreement can ensure that there’s cash available for a buyout when the time comes.  We’ll advise you on the different options for funding a future purchase, but for many businesses, a cost-effective solution is to purchase life or disability insurance to fund the buyout when triggered by these events.  Your agreement also must address whether the owners or the business itself must pay the insurance premiums.  Here are just a few other considerations surrounding the events that often trigger the purchase of a co-owner’s interest:

- If a business partner wants to sell, you’ll need to decide whether his or her interest must be offered first to the other co-owners, or whether the other owners will be required to buy back the departing owner’s share.  The agreement should also cover whether any non-compete restrictions should be placed on the departing owner, to the extent allowed by California law.

- If retiring, the agreement will set the conditions for retirement that will qualify for a buyout, and you’ll also decide on payment arrangements.  For example, a percentage of the buyout price might be paid in installments with interest, but you’ll want to take the business’s potential for future profitability into consideration.

- Upon death or a disability as defined by the agreement, decide whether the buy-sell provisions will require the remaining owners to purchase the other owner’s share, and how the owner or the owner’s heirs will be paid. 

- If a business associate is faced with bankruptcy, a buy-sell agreement can require that partner to notify co-owners before filing, giving the others the opportunity to buy his or her interest.  This can help prevent the loss of company assets, since the money paid to the departing owner will be subject to the bankruptcy, instead of the business’s assets.

- Divorce also has the potential of bringing third parties into the picture, but the buy-sell agreement can require that the business interest be sold back to the other co-owners or the business entity.

As you decide on the terms of your agreement, we’ll explain your options and the possible benefits and drawbacks, and go over other triggering events that may be appropriate to include in a buy-sell agreement for your business (such as provisions in the event of an acquisition or an employment termination).  Besides identifying which events will prompt a mandatory or optional buyout, a buy-sell agreement also resolves crucial valuation questions.  By determining now how you’ll calculate the business’s worth and the value of your respective interests, you’ll minimize uncertainty and help prevent conflict later.  Values can vary greatly depending on the valuation method used, but by agreeing to a formula ahead of time it’s much more likely that you’ll be able to fix a fair price.  Many times it can also help reduce estate taxes upon death, although you must tread the law carefully in doing so. 

To be effective, a buy-sell agreement must be carefully thought out and comprehensive.  With years of experience, we’ll evaluate the legal and business considerations and strategize to help protect your mutual interests and that of your family through a buyout agreement or other retirement or business succession plans.  Take a close look at your business and guard against future uncertainties by contacting San Diego Law Firm’s experienced business attorneys at (619) 794-0243.