How To Determine If Your Business Name Confuses People

I have really been blessed in the recent months with invitations to speak to groups of people. I just recently spoke at Arkansas Tech to the Engineering students graduating in May. The topic of discussion was Patents, Trademarks, and Copyright Infringement. I explained that I am not a Patent Attorney, but I would speak to the importance of such things when it comes to running one’s business. I then guided them to work with a Patent Attorney on specific questions.

As a business owner you have rights to the property created for and by your company. Even without filing for trademark protections or putting a copyright symbol on your works, the creation is what makes it belong to the owner. To check if your business name has already been chosen by someone else, perform an Entity Search in your State. This can be done by going to your State’s Secretary of State website and typing in variations of your prospective name. Completing this step in your business planning process can help you avoid issues and alleviate any potential problems in the future.

With that being said, you also have a duty. This duty cannot be waived by claiming ignorance or lack of knowledge. An article written for Entrepreneur Magazine by Lindsay LaVine titled When Business Names Confuse Consumers: The Basics of Trademark Law provides a basic understanding of the significance of  creating a business name that is dissimilar to other businesses. This article explains the importance of very basic business principles that can have a huge impact on a business before it even gets off the ground.

Here I have summarized the seven factors from Ms. LaVine’s article a court looks at to determine whether a business name is too similar to an already existing business name.

She offers these seven factors as the following:

  1. The strength of the mark. Is it a generic symbol or one that identifies your particular brand?
  2. Commonality of the marks. Is the mark commonly used by third parties?
  3. Proof of actual confusion. Has the name caused confusion?
  4. Similarity of the marks. Comparing the names or marks, could one come to the conclusion that they were created to confuse.
  5. Similarity of services, service outlets, and customers. If one company is providing accounting services and the other supplies vending machines, it is less likely that a similarity in business names will cause any issues.
  6. Similarities of the parties’ advertising media. For Example, if both companies are targeting the same customers on Facebook.
  7. Defendant’s Intent. The defendant’s intent to cause confusion among consumers will be looked upon by an evaluation of their efforts to confuse.

For a copy of the whole article, visit https://www.entrepreneur.com/article/226140.

LynMarie’s next speaking engagement is at the University of Arkansas – Morrilton on Monday, February 12, 2018 to the Entrepreneurship class regarding The Importance of Hiring a Lawyer and Accountant.

References

LaVine, L. (2013). When Business Names Confuse Consumers: The Basics of Trademark Law. Retrieved November 18, 2017 from the World Wide Web at: https://www.entrepreneur.com/article/226140.

Disclaimer: LynMarie Liberty Ellington is an attorney licensed to practice law in the State of Arkansas. She is an attorney, but not your attorney unless you have a signed attorney/client agreement. The information provided via all print and digital materials is for informational purposes only and does not constitute legal advice. If you have a personal or business legal issue, please contact an attorney with knowledge on your topic and licensed to practice law in your jurisdiction.

What about Domestic Relations (Divorce) Mediation?

What is Mediation?

According to a Google search, mediation is intervention in a dispute in order to resolve it; arbitration. However, this simple definition often causes confusion. Mediation is NOT arbitration!

Arbitration is the private, judicial determination of a dispute, by an independent third party. Think of it as submitting your case, or arguing your case to an arbitrator rather than a judge.

While mediation and arbitration are both dispute resolution processes, they are very different in practice.

Mediation can be thought of as assisted negotiation. While the mediator helps the parties reach an agreement each is satisfied with, the mediator does not evaluate each side’s view or determine who is right or wrong. A mediator does not determine the terms by which the parties will be held accountable.

Mediation is a voluntary process. Individuals can discontinue the mediation process at any time. Mediation is collaborative in that each party must work together for mediation to be successful and no one party has a better standing or case than the other party.

The mediation process is confidential. The mediator is an impartial, neutral party assisting the parties in coming to a mutual agreement. While the mediator does not offer legal advice, parties can participate in mediation with the assistance of legal counsel or communicate with legal counsel before making a final decision on an agreement.

 

What Do I Need To Do To Prepare For Mediation?

Understand that mediation is an opportunity. If your dispute goes to trial a judge or jury will ultimately decide how you and the other party will proceed in the future. Mediation gives each party an opportunity to have a combined say in the outcome of their dispute.

All mediation is voluntary. Even if you have been court-ordered to mediation, you are not required to come to a resolution. It is important to look at the mediation process as an opportunity to compromise and have a say in the final agreement moving forward.

As part of our Mediation Packet, we provide a document for you to prepare your ideal outcome, what you can live with, and an absolute “No Resolution” situation. List out your must-haves and things you are willing to entertain to resolve your dispute.

Having an open mind and willingness to listen to other possible resolutions is the key to coming to a solution everyone will be satisfied with.

Understand that mediation is a confidential process. The things you say or do at mediation will not be used in court, except for a few exceptions like an expression of a future criminal act or a lawsuit against the mediator.

Although you cannot guarantee how prepared the other party will be, if at all possible, you may want to suggest open dialogue with the other party before the mediation session.

Why should I use Domestic Relations Mediation?

I look at mediation as a great opportunity for parents! Litigation can result in unhappy parents with an agreement one or both cannot live up to. For individuals with time constraints, changing schedules (I think this describes most people!), and other people in their lives, mediation offers divorcing spouses the opportunity to customize the plans for their future. For people already divorced or never married, you can use mediation to come to agreements with another parent about a variety of issues including but not limited to support, visitation, property division, and the list goes on.

When individuals visualize mediation as a customized agreement as opposed to a cookie-cutter mandate imposed by a third party (the judge), parties start to appreciate the importance of the opportunity being given to them. It is not uncommon that the standard visitation set forth by the state is unrealistic or intrusive in your family’s way of parenting. If the judge is the one making the decisions, you and your family will have to live with the results.

Mediation allows the parties to maintain control over their future, as well as, how they will parent their child or children in the future.

Mediation is also more cost-effective than adversarial litigation. If parents can work together and reach an agreement, the time and money spent on the divorce process is significantly lower.

Mediation can result in less stress and reduce future conflict. Parents that reach a settlement together are more likely to work together later when changes are needed.

Disclaimer: LynMarie Liberty-Ellington is an Attorney and a Certified Mediator. As an attorney, an attorney-client relationship is formed and an attorney works zealously for their client’s rights. A mediator is a neutral party and does not represent either party as an attorney. The information contained in this post is not legal advice and does not create an attorney/client relationship. Any and all website content and/or other print or digital information distributed by LynMarie Liberty-Ellington is for informational purposes only. If you have a legal concern, seek the advice of an attorney licensed to practice law in your jurisdiction.

 

Super Small Businesses: IRS Form 940 and 941 Now Due

Hey, Super Small Business Owners! I hope all is going well as we finish up January 2018. This is just a reminder—and please note that I will NOT be reminding you of all your tax deadlines!

Wednesday, January 31, 2018 is the due date for Form 940: Employer’s Annual Federal Unemployment (FUTA) Tax Return, and another quarter of Form 941: Employer’s Quarterly Federal Tax Return.

So, what does this mean for you… If you set up an Employer Identification Number (EIN) with the IRS when you started your business, you are responsible for these forms, unless you are exempt or changed status (such as changed to a yearly filer of Form 941 shortly after creating your biz, terminated business, etc.). If when you filed for an EIN Number you stated that you would not have employees, you need to check your original Letter assigning you your Employer Identification Number: Form SS-4.

Please note, if you are required to file these forms but have nothing to report, you are still responsible for filing the forms.

If you are not sure, check your Letter, Form SS-4 for guidance about what you should file.

If you cannot find this letter or lost track of it, you will want to take the time to call the IRS at 1-800-829-4933 and go to the queue for Employer Forms.

Finally, if when you originally applied for your Employer Identification Number you claimed that you would not have employees and now your business has grown, you need to file the form even if you only have one employee. If you are not sure, contact the IRS at the above number and let them know you now have an employee and they will guide you through what you need to do and what forms you are required to submit.

One last thing, the due date for both forms is January 31, 2018. If you have any questions and need to call the IRS, you will want to do so sooner rather than later. The telephone wait can be 30-45 minutes so plan to do some menial tasks or answer e-mail while you wait.

Resources

Irs.gov

 

Disclaimer: I am an attorney, but I’m NOT your attorney. The information provided on our blog, webinars, books, print and digital materials is for informational purposes only. This in no way creates an attorney/client relationship. If you have a legal concern or issue, please contact an attorney with knowledge on your topic licensed to practice law in your jurisdiction.

Supersmallbiz.com is a division of Liberty-Ellington Law and Mediation, PLLC. Any business information is provided for informational purposes only. The information provided does not guarantee in any way business performance or success.

The IRS Does NOT Call (Usually): Communication Alert

 

 

While doing work at the office today, I happen to answer the phone when a call came in from 1-315-227-2006.

They said, “This is the IRS and a lawsuit has been filed against you.”

I knew about this scam, so I just said, OK.”

The person on the other end of the line stated, “I need the last 4 of your social.”

I said, “I will not give you that over the phone.”

I was expecting an explanation, but they went straight to, “Please provide me with your Attorney’s name and number.”

  • I can see where this would bother someone getting such a strange call! But please note, the IRS does NOT call about a lawsuit.

I then told the caller, “I’d be representing myself.”

They asked,”Are you an attorney?”

I said, “Yes.”

They then asked to verify my Bar information.

When I asked them to clarify, they hung up the phone.

 

At this point, I called back…

I told the caller that I had gotten a call and that we got cut off. The person on the phone started to repeat what the first caller had said, but after about 30-45 seconds, they disconnected.

I attempted to call back, but apparently nobody wanted to play anymore.

 

*Once again, the IRS does not call you to tell you they are filing a lawsuit against you. The first step would be documentation- The IRS wants a paper trail! With that being said, if you are in the midst of a matter with the IRS and you are already working with an agent associated with the Department of the Treasury, then you may get a call. However, this is not the typical first line of communication you will receive when dealing with a financial situation being brought against you from the federal government.

If you get a call like this, do not give any information and call your state’s Attorney General.

 

Supersmallbiz.com is a division of Liberty-Ellington Law and Mediation, PLLC.

 

 

Don’t Make Promises When Hiring

     During the interview and hiring process, managers may have the urge to boast or exaggerate about the opportunities and benefits of being a part of the company. Many business owners and managers “puff up” their company to encourage a great applicant to accept an employment offer. promiseIf you are going to do this, you better be able to deliver what you promised or you may find yourself in hot water. If you tell a potential employee about great stock options or about significant upward mobility and he or she takes the job based on what you said, then they may be able to sue you later on if your statements or promises end up being incorrect. Some courts determine that a contract was formed based on the statements you made if the employee took the job based on your promises. This can get the company into legal trouble if a manager was simply boasting about what he hoped would happen in the future.

     When interviewing and hiring potential employees it is important to stick to the truth and avoid exaggeration about the company or position. Be sure to stay away from predictions about the future, or projected estimates of year-end bonuses. Additionally, be precise about what the job entails. If you are hiring a cashier, but the person ends up doing deliveries as well, you may have a problem. Furthermore, be sure not to tell potential employees that your company “has never done layoffs”, or ”no one has ever been fired for _____.” Statements like these may come back to haunt you in the form of a lawsuit if the individual left another job for more job security at your company due to your comments during the hiring process.

Looking for Law on Twitter

Who doesn’t love Twitter?

Looking for some good resources, or people to connect with on Twitter that tweet about the law and the legal field.

Here is a list of my favorites!

sarah bursteign (@design_law)

carolyn elefant (@carolynelefant)

ross guberman (@legalwritingpro)

rachel gurvich (@rachelgurvich)

keith lee (@associatedmind)

elie mystal (@elieNYC)

kevin o’keefe (@kevinokeefe)

 

Check out ABA Journal for more information on Twitter legal figures.

 

3 Strategies I Use to Make the Most of Your Workday?

I thought I would take the time to answer a question I was asked earlier in the week. I’m guessing that most business owners would have their own way of answering this. Throughout the years, I have incorporated different methods and strategies to try and get more out of my workday.

As a long-time business owner and parent, it has always been essential to make the most of every workday to maintain a high level of productivity. With multiple responsibilities (personal and business related) it is imperative to come up with your own strategies to get the most bang for your buck when it comes to productive workday time!

The best tip I have -that took me a long time to learn- is to STOP multitasking. As a parent, I was a huge proponent of multitasking. Now when it comes to getting the dishwasher going while the dryer is drying a load of laundry and the Roomba is vacuuming the den, that is perfectly find. I promote any use of technology that saves you time and money! However, when it comes to focused, effective use of your own brainpower, multitasking is a scam. Several studies have come out to show that multitasking is much less effective than once thought. Law school really brought this one into reality for me. I found that 30 minutes in a quiet room would allow me to really focus on the material or task at hand and really allowed me to comprehend things and make decisions quicker.

The #1 system or process I use to promote productivity is time blocking. Again, studies have shown that transitioning between tasks or ideas, bogs down the mind and creating downtime and wasted minutes in moving from one thing to the other. I schedule 1-2 hour time blocks that I devote to specific topics. Unfortunately, emergencies or interruptions may occur. This is normal, but time blocking allows you to get back on task quickly with limited time wasted.

My favorite new piece of new technology for productivity is audio typing. As you read this, you may be one of the individuals that have been doing this for years, but I just happened upon this a few months ago. The basic premise is that you speak much faster than you type. So, if you are in a business or occupation that requires a lot of document preparation (Lawyer, bloggers, writer, etc.) you can actually audio type almost three times faster than regular typing. Most smart phones and current computers have the technology already built in. You probably don’t need any additional microphone or other device to start audio typing today. Several authors shared that audio typing has allowed them to write books in weeks.

These are just three things I do to make the most of my workday.Small Business Strategies

Legal Practice Update

I’m really excited to report that Liberty-Ellington Law and Mediation is going better than expected. As many of you know I was a little concerned with opening a practice in a small town because all of my previous businesses were started in large to super large cities. (Albuquerque, Denver, Dallas). Liberty-Ellington Law and Mediation-Reception Area

But I did not let this deter me, because I really wanted to establish my practice close to home with minimal commute. My building has been such a blessing. We are located in downtown Russellville, AR at 100 Denver. We are right next door to Fat Daddy’s BBQ and part of a great downtown community. Downtown Russellville is a great organization that is helping to revive the old, downtown feel with monthly activities such as the recent Fall Festival. As a downtown business, we are blessed to have the opportunity to participate and help the community as well. IMG_1776[1]

We have a great community and wonderful clients. I spend about half my time working with various legal clients on business, landlord/tenent issues, and family law. Our community has approximately 30 attorneys, and everyone has been gracious and welcoming.

I offer unbundled services, which I think has been a great factor in our success this first few months. The rest of my time is spent working with businesses and owners to promote good business and prevent legal issues from arising.

I am really excited that business is going well, and I can’t wait to see what 2018 has to offer!