blogs Archives - E-Council Global https://ecouncilglobal.com/category/blogs/ E-Council Global Fri, 01 May 2020 20:41:58 +0000 en-US hourly 1 https://wordpress.org/?v=6.5.3 194751170 How to Minimize Setbacks When Trying to Grow Your Small Business https://ecouncilglobal.com/2020/05/01/how-to-minimize-setbacks-when-trying-to-grow-your-small-business/ https://ecouncilglobal.com/2020/05/01/how-to-minimize-setbacks-when-trying-to-grow-your-small-business/#respond Fri, 01 May 2020 20:41:58 +0000 https://www.scaleupcheckup.com/?p=3230 Coming face to face with setbacks in business is simply the reality of the journey. Therefore, understanding how to minimize the impact they have on your business as well as on your mental state is incredibly important. Achieving this objective can help you overcome the hard times and keep your enterprise afloat. Here are some […]

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Coming face to face with setbacks in business is simply the reality of the journey. Therefore, understanding how to minimize the impact they have on your business as well as on your mental state is incredibly important. Achieving this objective can help you overcome the hard times and keep your enterprise afloat. Here are some ways you can minimize these setbacks when attempting to grow your small business.

Set Reasonable Goals

When running a business for the first time, it can be quite difficult to resist overdoing things, and this includes setting unrealistic goals. The fact is that you might not be able to do everything you want as soon as you wish. You may not be able to obtain 100 clients by the end of the month or get a certain number of responses from a marketing strategy. So, what can you do to truly make your goals realistic and reasonable? Creating S.M.A.R.T marketing objectives can both define and encourage your success. This acronym will remind you that your objectives should be specific, measurable, achievable, realistic and timely. It’s a great way to keep goals attainable in the future while aiming for successes that are above and beyond your present circumstances.

Fix Problems Before They Get Worse

When you’re running your business, you will soon find out that you have more than enough responsibilities on your plate. However, ignoring issues or putting them off for a while can be detrimental to the life of your company. The best way to avoid problems in the near future is to fix them before they get any worse. For example, inventory is often one of the first things to go awry. Instead of simply hoping it will fix itself, it is your responsibility to quickly implement a system that restores order and prevents any assets from being lost.

Prioritize High-Value Clients

The reality of business is that you will, at some point, face an economic downturn. The best way to avoid losing too much of your monthly revenue is to always concentrate on your high-value clients. Often, these accounts are enough to see you through an economic upheaval. You should, however, avoid waiting too long to make these strong connections. It takes time to build them properly.

There’s no doubt that running a small business can be difficult. However, with the right approach, the path to success can become a lot easier. Simply adhere to the concepts outlined here to help your company weather the storms.

Want to bulletproof your business? Contact us to get started! ScaleUPCheckUP™ is here and it is a game-changer. The game is about to change – are you ready?

ScaleUPCheckUP™’s blog, website, newsletter and other forms of communication contain general information about legal and related matters. The information is not legal advice and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider.

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The Dangers of Ignoring Software Compliance Requirements https://ecouncilglobal.com/2019/07/03/the-dangers-of-ignoring-software-compliance-requirements/ https://ecouncilglobal.com/2019/07/03/the-dangers-of-ignoring-software-compliance-requirements/#respond Wed, 03 Jul 2019 19:45:44 +0000 https://www.scaleupcheckup.com/?p=2746 Modern businesses rely on software to get things done. Programs may be applicable to any business, such as accounting software, or they may be coded specifically for a specific business sector. In the past, you had to purchase a physical disc to use the software. Today, it can be downloaded quickly and activated with a […]

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Modern businesses rely on software to get things done. Programs may be applicable to any business, such as accounting software, or they may be coded specifically for a specific business sector. In the past, you had to purchase a physical disc to use the software. Today, it can be downloaded quickly and activated with a license. Software licenses may be obtained for a single machine, a single workplace or an entire corporation. Cheating the license system can have serious consequences.

You Can Be Fined

It can be tempting to try to cheat the system and work around software compliance rules. A crafty IT professional might figure out how to crack the license and run the software for free. Software companies require periodic audits of company computers. For example, Quest is being particularly aggressive about their audits right now. These audits have the benefit of making sure that all computers in a company are running the same version of the licensed software. However, if the company finds unlicensed software in use, they can assess a fine for each unauthorized copy.

You Can Get Sued

In some cases, a breach of software compliance is an accident. An employee may have installed a personal version of a software program without recognizing the change from personal use to commercial use. In extreme cases, a business may intentionally cheat the software company, running many copies of the unlicensed software. In this case, the software company may decide to sue the business for illegal usage or copyright infringement. This not only takes up time, but it can cost the business a great deal of money in legal fees and penalties.

You Can Damage Your Reputation

If your company has a history of noncompliance, you may find it difficult to get software companies to give you a license. You will be limiting the kinds of tools you give your employees. In addition, in this age of social media, the public reputation of the business will also be damaged. They may assume that if you are dishonest in one area, you are probably dishonest in others as well. Clients are not attracted to companies that cheat the system.

Computer software is a serious investment for your company because software companies and developers deserve to be fairly paid for their work. The images and tools on the computer screen represent many hours of creative effort. Software companies want to give you the best tools available to keep your business productive.

ScaleUPCheckUP is here and it is a game-changer. The game changing and software compliance is but one of the essential considerations – are you ready? Contact us at info@scaleupcheckup.com or 1-866-724-0085 for more information.

While the above is not and should not be considered legal advice, since circumstances vary, ScaleUPCheckUP monitors these rapidly developing issues, as enforcement of the law switches into high gear. Instead, the foregoing is intended as an overview and not legal advice, nor does it create an attorney-client relationship. However, contacting an attorney to steer through the maze of bureaucracy to register and defend a mark may very well be necessary to consult an attorney.

ScaleupCheckup’s blog, website, newsletter and other forms of communication contain general information about legal and related matters. The information is not legal advice and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider.

 

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Plot Your Course: Avoid the Dragons on the Map to Success https://ecouncilglobal.com/2019/05/22/plot-your-course-avoid-the-dragons-on-the-map-to-success/ https://ecouncilglobal.com/2019/05/22/plot-your-course-avoid-the-dragons-on-the-map-to-success/#respond Wed, 22 May 2019 01:40:33 +0000 https://www.scaleupcheckup.com/?p=2720 You’ve done it – you’ve come up with The Next Big Thing and now you have to get it to the public. You could just take a run at it – blindly following the masses to where you think you should be going because your best friend knew someone who had a friend who did […]

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You’ve done it – you’ve come up with The Next Big Thing and now you have to get it to the public. You could just take a run at it blindly following the masses to where you think you should be going because your best friend knew someone who had a friend who did it. Or you could make different choices when you start out and begin by listening to the advice of an expert.

Owning your own business can be complicated but extremely rewarding, especially when your business succeeds! However, before you can reach that success, you have to take the baby steps to start moving toward it. There are some key things that we strongly recommend that you keep in mind when you launch or are ready to scale, such as:

The first thing on which you should focus, and certainly one of the most important, is networking and building relationships with the professionals and colleagues that you need to support yourself and your business as you develop and scale. Think lawyers, accountants, financial advisors, insurance brokers, business planners, graphic designers, etc.(1) You need to make sure that you have found the right personalities and knowledge levels to fit with your needs before you kick off your launch.

Then it’s time to add to the plan by making sure that you lay out the goals and strategies for your finances. If you plan ahead of time, you set out your vision for your company for both the short- and long-term.(2) Typically, six months to one year is considered short-term and three-year, or five-year plans are considered long-term. Either way, you should be planning for a minimum of three years at a minimum. The hardest part of planning the financial aspects is staying neutral in your estimations. What you want to avoid is predicting a sharp, sudden growth trend that magically appears after the first year of operations (or two, etc.).

While you are having fun meeting people and making up numbers, you should also be looking at your overall business plan. It goes hand-in-hand with your financial plan; they’re complementary. Make sure that your mission is feasible and possible to achieve while still being inspirational for your and your team(3). Writing the business plan can also help you envision the future for your business. So ask yourself – where do you see your business in a year’s time? Will you still be in the office looking at a computer screen or will you have moved on to sunglasses and the beach? Hey, an exit strategy is important too and it is so very essential to begin with the end in mind.(4) It might be in the distant future, but you should still plan for how you want to wind up the business. After all, it could be that you have to hand it off and make choices between your loyal and faithful right-hand VP or your weird cousin that no one likes when it comes to the CEO title. Think about your goals and your intentions and create a plan to accomplish them.

Now you have a plan. You’ve got some goals, a future vision, and a possible exit strategy (or a few). That’s great! Next, it’s time to get your product (or service) gussied up and pretty for its big debut.(5) Trying to save money is a good idea, but not if you try to skip the branding step. Branding (colors, logos, fonts, imagery, word choices, etc.) is the very first impression the public has of your business. Branding will lead your business story long after you have left the room.(6) Your brand should tell your clients – and the world – what they can expect from you, why you’re different from any potential competitors, who you are and what you represent. Once you’ve nailed down your color scheme and logo, you’ll be ready to market your services (or products). Marketing, in brief, is informing the general public about your product, where to find it, why they would want it and how they can get it. Almost 2/3 of American adults currently use social media, so no doubt you can start there. Create posts, like other people’s posts, leave comments – interact with people online (be social) and make sure that the content you’re putting out there is valuable. Its an easy, costeffective way to market your business and reach your target audience.(7)

Back to those professionals and colleagues that I mentioned before; you might not think you need professionals and experts, but you do. Does your product or service access or collect information? If so, are you familiar with all PIPPA and GDPR regulations? Have you considered application of the Americans with Disabilities Act (ADA) to your website – and what does this even mean? Do you have a physical location where people purchase your products or services? Do you have the right insurance coverages that you need? You cannot do everything yourself, so stay in your lane and work with professionals and experts that can help you ensure that you don’t get in over your head.(8)

One of those professionals could be a banker or venture capitalist, for example, and you never know when you will need them. When you first start out, the hardest thing to often do is find the money to put in to your business. Maybe you need seed money for equipment, vehicles, technology, marketing, or your reserves if your business is a bit riskier and you want ‘just in case’ capital for the future. Keep your debt to a minimum and make sure that your business plan contains your best, educated guess on your goals/objectives, your target market, getting customers to buy from you, how much money you think you will need, and when you feel revenue will start to come in (and how that will look). You should also model out as many possible scenarios as you can that show when your business will turn cash-positive.(9) This will help to show potential investors that you are serious and will give them some confidence in knowing when they might expect to be paid back.

Next step – now that your business is up and running, or if your company has gone through a recent growth, it’s time to assess and analyze your operations.(10) Why? Periodically, you will need to review how your company does what it does best and who is doing it. It allows you to identify inefficiencies and improve communication for the company and your clients. You can use comparisons against industry benchmarks and best practices to make sure that you have optimized your operations. There is so much more to do, but this is an excellent primer to get you started.

If you have questions on this article or would like to know more about what I can do to help you, please visit www.scaleupcheckup.com, email us at info@scaleupcheckup.com or call us at 1-866-724-0085 for more details. You can also take our free quiz at www.showmethemoneyquiz.com!

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Lauren Cohen is an internationally-acclaimed attorney who has built a system designed to help business owners achieve their goals. simply and strategically, through a vetted network of professionals. Lauren’s 3-Step ScaleUPCheckUP™ Success System (Assess/Diagnose/Deliver) assesses your business’s risk in the 7 most critical areas that, if ignored, could lead to disaster.

ScaleupCheckup’s blog, website, newsletter and other forms of communication contain general information about legal and related matters. The information is not legal advice and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider.

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4 Essential Marketing Principles for Top-Line Growth https://ecouncilglobal.com/2019/05/17/4-mandatory-marketing-principles-to-guarantee-top-line-growth/ https://ecouncilglobal.com/2019/05/17/4-mandatory-marketing-principles-to-guarantee-top-line-growth/#respond Fri, 17 May 2019 21:01:25 +0000 https://www.scaleupcheckup.com/?p=2702 If you’ve spent a long time working in the business world, it might seem like you’ve heard every strategy to bolster your company’s foundation – yet you still remain exposed! – and the simple truth is that strengthening your value and accelerating your growth is easier than it’s ever been before – with ScaleUPCheckUP™!! Work with […]

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If you’ve spent a long time working in the business world, it might seem like you’ve heard every strategy to bolster your company’s foundation – yet you still remain exposed! – and the simple truth is that strengthening your value and accelerating your growth is easier than it’s ever been before – with ScaleUPCheckUP™!!

Work with an Advisor that You Trust

A business advisor can provide substantial benefits to companies of any size, but they’re particularly helpful when you’re in a period of growth — these times can be stressful and at times you won’t know what to do, but that’s where your adviser comes in. It’s important to work with an advisor that you trust to Bulletproof Your Business (i.e.: the team at ScaleUPCheckUP™). And don’t forget that loyalty and commitment can be confirmed by offering your advisor equity in your business as well (talk to us about this option!).

User Experience First

It can be hard to see how a customer interfaces with your business from the top — for that reason, it’s vital to put effort into making the consumer’s experience easier and more positive. In the modern era, this mostly comes from well-designed social media and online interfacing. Website design is particularly important in keeping customers interested. For example, if you aren’t careful about some aspects of web design, it has been estimated to cost you up to 88% of return sales!

Remember the ‘7 Ps’

Formerly the ‘4 Ps’ of marketing, these guidelines for assessing a new product or promotion utilize a set of factors to check the product have become a common method of evaluating a new offering’s potential.

  1. Product
  2. Price
  3. Promotion
  4. Place
  5. Packaging
  6. Positioning
  7. People

Checking a planned product against this rubric can help to fill gaps in the item’s viability and improve the marketing process.

Consider New Strategies

The business world is relatively stuck in their ways, and that’s just one reason that utilizing novel strategies gives you a head-up over the competition — try implementing a streamlining strategy or production leveling to increase the leanness of your expenditures and turn your profits into pure growth. Some of these systems require a fair amount of training and implementation for your workforce to deploy effectively, but the results can’t be denied.

Whether you’re a business owner who’s looking to inspire a period of growth to strengthen your company or increase the value before you sell, implementing these marketing principles can give you the edge you need to ignite growth and a lucrative exit!

You’ve worked HARD to build your business but did you overlook anything on the journey? Taking the ScaleUPCheckUP™ assessment will provide a snapshot of your exposed gaps and the fastest, easiest, most affordable ways to close them.

If you have questions on this article or would like to know more about what I can do to help you, please visit www.scaleupcheckup.com, email us at info@scaleupcheckup.comor call us at 1-866-724-0085 for more details. You can also take our free quiz at www.showmethemoneyquiz.com!

ScaleUPCheckUP™’s blog, website, newsletter and other forms of communication contain general information about legal and related matters. The information is not legal advice and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider.

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THE LIMITS OF COMMON LAW TRADEMARK RIGHTS ON THE INTERNET https://ecouncilglobal.com/2019/03/15/the-limits-of-common-law-trademark-rights-on-the-internet/ https://ecouncilglobal.com/2019/03/15/the-limits-of-common-law-trademark-rights-on-the-internet/#respond Fri, 15 Mar 2019 00:36:57 +0000 https://www.scaleupcheckup.com/?p=2571 What are common law trademarks? A common law trademark or service mark (collectively referred to in this article as a “trademark”) is a judicially created right that is governed by state law.  Generally speaking, common law trademark ownership is acquired by actual use or marketing in a given market. Common law trademarks can only be […]

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What are common law trademarks?

A common law trademark or service mark (collectively referred to in this article as a “trademark”) is a judicially created right that is governed by state law.  Generally speaking, common law trademark ownership is acquired by actual use or marketing in a given market. Common law trademarks can only be protected in the geographic area where goods or services (collectively referred to in this article as “goods”) are sold or have acquired customer goodwill. Additionally, actual and continuous use of a trademark is required to retain a protectable interest in a trademark. Tally-Ho Inc. v. Coast Community College District, 889 F.2d 1018, 1023-24 (11th Cir.1989).

When does an unregistered common law trademark trump the rights of a registered trademark?

The first to use a trademark in a particular geographic market is known as a “senior user”. A senior user can acquire rights to a trademark in a geographic market even if a trademark is not registered.  Generally speaking, an unregistered common law trademark may trump the rights of a registered trademark IF the common law trademark was the senior user AND has continuously used the common law trademark.

HOWEVER, generally speaking common law trademarks rights are LIMITED to the geographic market that the common law trademark has been used, is known by consumers or where the common law trademark may naturally expand.  Federal registration of a trademark by another user after a senior user has begun to use the same trademark has the practical effect of FREEZING the senior user’s enforceable common law trademark rights thereby terminating ANY right to future expansion beyond the common law trademark’s existing territory. Tana v. Dantanna’s, 611 F.3d 767, 780-81 (11th Cir. 2010).  As a result, it behooves common law trademark holders to register their trademarks.

How are the geographic limits of common law trademark rights defined when a trademark is used on the internet?

Determining trademark rights based upon a trademark’s use on the internet is a developing area of law.  The law is still struggling with how to define the geographic limits of a trademark used on the internet.  The tests for establishing the extent of trademark rights vary from jurisdiction to jurisdiction when a trademark is used on the Internet. For e-commerce cases, some courts have used a “zone of market penetration” test to determine if a trademark holder is entitled to trademark rights.  The market penetration test is a test that analyzes the following factors to determine the extent of a trademark’s market penetration: (1) volume of sales; (2) growth trends; (3) the number of people who purchased the party’s goods in relation to the number of potential customers; and (4) the amount of advertising. Adray v. Adry-Mart Inc., 76 F.3d 984, 989 (9th Cir.1995).

Other courts apply the “zone of natural expansion” test to determine if a trademark holder is entitled to trademark rights.  The “zone of natural expansion” test analyzes whether a senior trademark holder can successfully claim the junior holder is interfering with the zone of natural expansion of a trademark. Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1193 (11th Cir.2001).  Courts have also found that the internet can be its own territory or market. See Big Time Worldwide Concert & Sport Club at Town Center, LLC v. Marriott Int’l, Inc., 236 F. Supp. 2d 791, 804 (2003); see also Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1193 (11th Cir.2001).  However, while a consumer in any market may access the Internet, no court has held that having a website ALONE is enough use to convey nationwide geographic trademark rights.  Whether a common law trademark holder’s use on the internet is sufficient to establish common law trademark ownership rights will vary case by case and jurisdiction by jurisdiction.

The trademark attorneys at The Plus IP Firm have advised numerous clients regarding their common law and registered trademark rights.  If you have any questions regarding your trademark rights given the use of your trademark on the internet, the attorneys at The Plus IP Firm are available to answer any questions that you may have.  To schedule a free consultation, click HERE.  For more information about Derek Fahey, this article’s author, click HERE.

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INTERNATIONAL PATENT STRATEGIES https://ecouncilglobal.com/2019/03/08/international-patent-strategies/ https://ecouncilglobal.com/2019/03/08/international-patent-strategies/#respond Fri, 08 Mar 2019 00:34:30 +0000 https://www.scaleupcheckup.com/?p=2566 As a patent attorney, many people often ask me, “Should I seek international patent protection?” The short answer is that it depends on a business’s goals, overall business strategy and budget. This article will answer some of the questions frequently raised when deciding on whether to file for foreign patent protection. What Does A U.S. […]

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As a patent attorney, many people often ask me, “Should I seek international patent protection?” The short answer is that it depends on a business’s goals, overall business strategy and budget. This article will answer some of the questions frequently raised when deciding on whether to file for foreign patent protection.

What Does A U.S. Patent Protect?

A U.S. patent is a legal document that provides a monopoly and allows the patent owner to exclude others from making, using or selling an invention in the United States. A United States patent will not protect an invention outside of the United States. If a patent owner intends to protect an invention outside of the United States, then the patent owner will have to acquire patent rights for the invention in each country in which the patent owner wants the invention protected.

In Which Countries Should I Seek Patent Protection?

To answer this question, you should consider in which countries you: (1) intend to sell your invention; or, (2) are willing to enforce your patent rights. Many large businesses, for example pharmaceutical companies, will seek patent protection in almost every country in the world because those businesses have the resources to sell their products and enforce their patent rights worldwide. On the other hand, smaller businesses may only seek international patent protection in one or two countries because those businesses have less resources. In many cases, the decision of determining in which countries to seek patent protection can only be made after a product has been market validated and a business understands the potential for sales in certain countries. Typically, a business will need time to properly validate and market test a product.

What is A PCT Patent Application?

One strategy for delaying the decision of determining in which countries to seek patent protection is to file a PCT patent application. A PCT patent application is a patent application filed under the Patent Cooperation Treaty. The Patent Cooperation Treaty is an international law treaty that provides a procedure for filing patent applications in multiple countries. The PCT patent application allows an applicant to simultaneously seek patent protection for an invention in over 140 countries throughout the world.

After filing a PCT patent application, an applicant will eventually have to choose the countries in which the applicant desires to seek patent protection. This next step of the PCT patent patent application process is known as the “National Phase”. An applicant must enter into the National Phase within 30 – 31 months after the earliest priority date of a PCT patent application. This means that by initially filing a PCT patent application an applicant could essentially provide a business with up to 30 – 31 months of time in order to investigate which countries the applicant should sell its product.

When should I NOT file a PCT application?

Many times the answer to this question will depend on how certain you are as to the amount of foreign countries in which you intend to seek international patent protection. In the National Phase of a PCT application, an applicant is required to pay additional fees for every country that an applicant has chosen to seek patent protection. If an applicant is very certain that he or she will only choose to seek patent protection in one or two foreign countries, then it is more economical not to file a PCT application. In such a case, a business should probably file in each foreign country directly. This strategy will reduce the overall patent filing costs for an applicant.

Additionally, a PCT application should NOT be filed if a public disclosure or attempted sale of an invention is made before the first filing of a patent application. Public disclosure of information about an invention for up to a year prior to filing a U.S. patent application is permitted in the United States. However, disclosures can invalidate an applicant’s right to patent protection in many foreign jurisdictions. Given that filing a PCT patent application can be an expensive process, I recommend seeking advice from a patent attorney familiar with foreign patent filings before deciding on whether to file a PCT patent application.

The PCT patent attorneys at The Plus IP Firm help businesses and inventors protect their ideas, concepts and creations with patents, trademarks and copyrights. The patent attorneys at The Plus IP Firm have helped numerous businesses file patents and trademarks in numerous foreign countries. To discuss your options, click here to schedule a free telephone conference with one of our experienced patent attorneys. To learn more information about patents, click here

"Derek Fahey International Patent Strategies"Derek Fahey is a registered patent attorney. The Plus IP Firm, PLLC, is an intellectual property law firm dedicated to serving the South Florida area. We help companies and individuals protect their ideas and creations using patents, trademarks and copyrights.

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Section 33 (b)(5) Defenses For Common Law Trademark Owners https://ecouncilglobal.com/2019/02/18/section-33-b5-defenses-for-common-law-trademark-owners/ https://ecouncilglobal.com/2019/02/18/section-33-b5-defenses-for-common-law-trademark-owners/#respond Mon, 18 Feb 2019 04:54:08 +0000 https://www.scaleupcheckup.com/?p=2463 Several potential clients have asked me questions regarding their trademark rights similar to the following: “I have been selling goods under my trademark for several years.  I never registered my trademark. Another business sent me a cease and desist letter stating that my use of my unregistered trademark infringes on their registered trademark’s rights.  What […]

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Several potential clients have asked me questions regarding their trademark rights similar to the following: “I have been selling goods under my trademark for several years.  I never registered my trademark. Another business sent me a cease and desist letter stating that my use of my unregistered trademark infringes on their registered trademark’s rights.  What do I do?” I hear this question quite often.  The answer depends on several factors. However, this article focuses on defenses that an unregistered trademark owner may have under Section 33(b)(5) of the Trademark Act Lanham Act.  15 U.S.C. §§ 1065, 1115(b)(5).

First, it is a bedrock principle of service mark and trademark law that the first user of a service mark or trademark owns the trademark or service mark if conflicts arise with rival claimants.  I will use the word “mark” to collectively refer to the term service mark and trademark.  Once the basic rights in a mark are acquired upon its initial use, a business may supplement or extend those rights by registration of the trademark.  Registration of a mark with the United States Patent and Trademark Office has several advantages (which will not be discussed in this article).  However, an unregistered mark may still have rights by common law trademark law.

Section 33(b)(5) codifies the benefits that a common law trademark owner may have. Section 33(b)(5) of the Lanham Act states the following:

(5) That the mark whose use by a party is charged as an infringement was adopted without knowledge of the registrant’s prior use and has been continuously used by such party or those in privity with him from a date prior to (A) the date of constructive use of the mark established pursuant to section 1057(c) of this title, (B) the registration of the mark under this chapter if the application for registration is filed before the effective date of the Trademark Law Revision Act of 1988, or (C) publication of the registered mark under subsection (c) of section 1062 of this title: Provided, however, That this defense or defect shall apply only for the area in which such continuous prior use is proved;

Section 33(b)(5) is a defense for a defendant or an accused infringer that has been unknowingly using a mark in a geographic area different from the geographic area of the registered mark.  For section 33(b)(5) to apply, the accused infringer would have to be unknowingly and continuously using the mark in a different geographic area before the registered mark’s owner filed an application to register the mark. Take the following example:

A begins use of a mark in a one geographic area.  Then B begins use of the same mark in a different geographic area in good faith, without knowledge of A’s use. Both A and B would have common law rights to the mark in their respective territories. Then A applies for and obtains a federal registration for the mark.

Under Section 33(b)(5), in the example above, B retains rights only in the territory in which it was the prior user up to A’s application date.

Section 33(b)(5) may be very helpful to owners of unregistered marks.  However, keep in mind that Federal registration of the mark by A has the practical effect of FREEZING B’s rights thereby terminating ANY right to future expansion beyond B’s common law trademark’s existing territory.  While, registration of a mark is not legally necessary, the examples briefly discussed in this article illustrate the importance of registering a mark to protect of your brand. The trademark attorneys at The Plus IP Firm have advised numerous clients regarding their common law and registered trademark rights.  If you have any questions regarding your trademark rights given the use of your trademark on the internet, the attorneys at The Plus IP Firm are available to answer any questions that you may have.  To schedule a free consultation, click HERE.  For more information about Derek Fahey, this article’s author, click HERE.

 

While the above is not and should not be considered legal advice, since circumstances vary, ScaleUPCheckUP™ monitors these rapidly developing issues, as enforcement of the law switches into high gear. Instead, the foregoing is intended as an overview and not legal advice, nor does it create an attorney-client relationship. However, contacting an attorney to steer through the maze of bureaucracy to register and defend a mark may very well be necessary to consult an attorney.

ScaleupCheckup™ ’s blog, website, newsletter and other forms of communication contain general information about legal and related matters. The information is not legal advice and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider.

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WHY IS A BUSINESS VALUATION SO IMPORTANT AND HOW CAN IT SHOW YOU THE $$? https://ecouncilglobal.com/2019/02/05/why-is-a-business-valuation-so-important-and-how-can-it-show-you-the/ https://ecouncilglobal.com/2019/02/05/why-is-a-business-valuation-so-important-and-how-can-it-show-you-the/#respond Tue, 05 Feb 2019 03:32:30 +0000 https://www.scaleupcheckup.com/?p=2438 As a business owner you may know your business inside and out, but do you know the value of your business? The value of your business is more than just a number. Knowing and understanding the true value of your business, and what impacts its value, makes all the difference not only from a tax […]

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As a business owner you may know your business inside and out, but do you know the value of your business? The value of your business is more than just a number. Knowing and understanding the true value of your business, and what impacts its value, makes all the difference not only from a tax perspective, but also when it comes to exiting/selling or merging your current business. In other words, it is essential to understand the foundation of your business, consider all of the factors that affect your business and be aware of the outside factors that you may or may not be able to control that can also affect your business.

Similar to a house, the foundation of your business is everything. The success of your business depends on building a strong base for your business. But, as a business owner you already have so much ground to cover that sometimes a small crack in your business foundation can be dismissed or overlooked for the lack of knowledge of its value – or potential cost – to your company. A mistake that can prove to be fatal in the long run. Ensuring a strong foundation is imperative in understanding the value of your company assets.   

But, how can you know the value of your company assets? The best way to determine the true value of your business is through a business valuation. The goal of valuing your business is to attain a clear estimate of the fair market value of your business, which is defined as:

“…the price at which the property will change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having a reasonable knowledge or relevant facts.” (26 CFR 25.2512-1 – Valuation of Property; in General.” LII / Legal Information Institute, Legal Information Institute, www.law.cornell.edu/cfr/text/26/25.2512-1) And, while, the mere knowledge of this information affords you power as a business owner to better understand your business, there are so many other benefits to conducting a formal business valuation.

A business valuation helps you understand your company’s resale – or EXIT – value, giving you access to more investors while helping to measure your company’s growth. Additionally, you might not have thought about it yet, but your retirement also depends on your business and its value. And how can you calculate your retirement income when you don’t know the value of your primary asset? A business valuation can help to answer this question.

It’s important to understand the factors that may drive the value of your business higher for different reasons. While every business owner’s goal is to have a profitable business, your long-term goals might be to eventually be able to sell your business through a smooth transition. A business valuation can help you prepare for this, whether your goal is to merge your business with another business, passing it down to a family member, or preparing a successful exit strategy plan.

It is the successful exit that is most important to consider. So few business owners properly prepare for exit. Most simply operate their businesses as going concerns, not paying much if any attention to the long-term goal of ultimate sale/exit. As the famous saying coined by Benjamin Franklin says, “Failure to Plan = Planning to Fail”. Business owners that don’t put the right protections in place, secure the right foundation, hire the right people, cover the right bases, or take the right actions and measures are sure to lose precious dollars when it is time to exit as their businesses will sell for pennies on the dollar. The due diligence process that is undertaken by the purchaser may even fail, and the whole exit may fall apart. All because the business owner chose to stick his/her head in the sand and pretend everything was A-OK – but it was NOT!

Working with the right professional team at your side and preparing the company properly for an ultimately successful exit will admittedly require time and effort and painstaking attention. However, by working with the right team, and building up the business’s value so that the ultimate valuation results are that much stronger, the end result will be a significantly more lucrative exit that would otherwise be realized. The business valuation results will not only help your business be more profitable but will also help you understand all your options and what makes the most sense for you and the success of your business.

While the above is not and should not be considered legal advice, since circumstances vary, ScaleUPCheckUP monitors these rapidly developing issues, as enforcement of the law switches into high gear. Instead, the foregoing is intended as an overview and not legal advice, nor does it create an attorney-client relationship. However, contacting an attorney to steer through the maze of bureaucracy to register and defend a mark may very well be necessary to consult an attorney.

ScaleupCheckup’s blog, website, newsletter and other forms of communication contain general information about legal and related matters. The information is not legal advice and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider.

 

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A Few Ways ScaleUPCheckUP™ Can Show You the $$ (Money) https://ecouncilglobal.com/2019/01/14/a-few-ways-scaleupcheckup-can-show-you-the-money/ https://ecouncilglobal.com/2019/01/14/a-few-ways-scaleupcheckup-can-show-you-the-money/#respond Mon, 14 Jan 2019 17:46:04 +0000 https://www.scaleupcheckup.com/?p=2193 Cash is oxygen for any business. As for individuals, without oxygen (cash), a business cannot breathe or survive. A business needs cash to exist, to pay staff, to buy necessary products and services, and to grow. Without access to sufficient capital, eventually a business will have to close its doors. There are several options for […]

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Cash is oxygen for any business. As for individuals, without oxygen (cash), a business cannot breathe or survive. A business needs cash to exist, to pay staff, to buy necessary products and services, and to grow. Without access to sufficient capital, eventually a business will have to close its doors. There are several options for accessing capital for your business, but there are there are 3 main ways that you can secure more money. However, for each of these 3 ways as well as most other options, you must get your business’s so-called “ducks in a row” so you are armed and ready to handle the full scope of the application process and satisfy all of the due diligence requirements.

1. Apply for a Loan

Traditional financing methods remain one of the easiest ways for businesses to get funding. In fact, roughly 75% of financing for newer companies comes from business loans, lines of credit, and credit cards. Small business loans with favorable terms will help businesses to build their credit as long as they have (i) been in operation for at least two years, (ii) at least $100,000 in annual revenue, and (iii) principal(s) with a credit score of 640 or higher. These requirements obviously leave startups out of the loan mix, although it is possible that SBA financing or hard money loans may be available as an option for newer companies. Additionally, for companies with outstanding invoices, invoice financing or factoring could also help in this regard.

You can also use personal funds to raise money for your business. If you own your home, you can borrow against the equity you have in your home by way of a Home Equity Line of Credit (HELOC) or a home equity loan. A HELOC gives you a pool of cash that you can draw from when you need it. A home equity loan is a term loan that is issued as a one-time lump sum. The total amount of cash that you can access depends on the amount of equity you have in your home and the total value of your home.

2. Find an Angel Investor

Angel investors are affluent investors that are interested in investing in businesses in exchange for equity or convertible debt interest in the business, but don’t want to play a role in the day-to-day operations, which is often ideal for startups and ScaleUPs looking for funding to develop, scaleUP or exit. If you have a solid business plan and hopefully a pitch deck, two of ScaleUPCheckUP’s specialties, and you are ready to make your pitch, you can seek an angel investor and capture their interest by clearly demonstrating to them the amazing opportunity that you offer and the future potential of your company. There are also angel investor groups and websites that help companies find angel investors.

3. Secure Investments from Venture Capitalists

Venture capitalists are different from angel investors to the extent that they generally want to be directly and often quite intimately involved in your company’s day-to-day operations – an investment with strings. They typically seek to make sure they are likely to realize certain returns on their investment, so they want to work with companies that have scalable products/operations. You can find many venture capitalists and VC matchmakers that can help link your business to the money you need as long as you can justify what has changed in the industry as a means of showing that your company’s offering fills a direct need, what you offer and why they should capitalize on it, and your current financials.

If you are interested in accessing more cash for your business so you can build, scaleUP or exit, but you are not sure about how, when, or where to start, the ScaleUPCheckUP™ assessment tool and ScaleUPCheckUP™’s network of business advisors can help you determine the best path to take. Making a poor decision about how to fund your business can be an expensive and potentially disastrous mistake. Seek foundational expertise and funding guidance from our experts to access and ultimately raise the money you need to grow your business.

ScaleUPCheckUP™’s blog, website, newsletter and other forms of communication contain general information about legal and related matters. The information is not legal advice and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional services provider.


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Watch now as my business mentor Allison Maslan interviews me on ALLIE & YOU https://ecouncilglobal.com/2018/12/23/watch-now-as-my-business-mentor-allison-maslan-interviews-me-on-allie-you/ https://ecouncilglobal.com/2018/12/23/watch-now-as-my-business-mentor-allison-maslan-interviews-me-on-allie-you/#respond Sun, 23 Dec 2018 03:17:30 +0000 https://www.scaleupcheckup.com/?p=2021 When scaling your business, you’ll hit a point where you need an infusion of capital. Most business owners look for loans, grants, angel investors or venture capitalists. But here’s one that few CEOs know about or consider… Foreign investors. Curious? Tune in for this week’s Allie & You, where I interviewed attorney Lauren Cohen, an […]

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When scaling your business, you’ll hit a point where you need an infusion of capital.

Most business owners look for loans, grants, angel investors or venture capitalists. But here’s one that few CEOs know about or consider…

Foreign investors.

Curious? Tune in for this week’s Allie & You, where I interviewed attorney Lauren Cohen, an immigration and business law expert.

You’ll discover:
• Ways that immigration law can help you grow your business and give you the competitive edge
• The smart way to tap into foreign investors – without having to give away ownership of your company
• Critical mistakes that business owners make when scaling… and the easiest way to identify these issues before they blow up into huge problems

#business #entrepreneur #entrepreneurship #smallbusiness #howto #howto #compliance #smallbiz #professional #funding #businessowner #professional #collaboration #businessowners #makeithappen

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