The Name Game: New businesses should take small steps before choosing a name to avoid a big problem later

Choosing a great name for a new business is not a task to be taken lightly.  At a minimum, you do not want to infringe upon another business’s name; doing so could leave you being forced to change your name after months or years of use and possibly even facing liability for damages.  Additionally, if you have big visions of expanding your business across the country, you need to select a name that you can protect with a federal trademark registration.

First and foremost, before settling on a new name, you should make sure that there are not existing businesses with names similar to the one you are considering.  A few basic searches will help get you started.  Search for the name you want and all variations of that name or similar names that you can think of.  Try different spellings as well as searching for just your proposed name’s key words.  Some sources that you should be sure to search include the following:

·       Search the pending and registered trademarks in the United States Patent and Trademark Office database.

·       Search the database of trademarks and service marks registered in the state where you will be doing business.  Some trademarks may not be federally registered, especially if the business is confined to one state, and may instead be registered with a particular state.  Georgia’s database, for example, is located here.

·       Check the Secretary of State’s records in, at minimum, the state where you will be doing business.  Georgia’s database, for example, is located here.

·       An obvious one:  use your favorite search engines to search the Internet for websites and references.

·       Search the various social media sites for business pages.

·       Check domain name records to see if domain names that would go with your proposed name are already in use.

·       Finally, if you can find them… search your area phone books.

Did you find any businesses with names the same as or similar to the one you want?  You may have a problem.  We can work with you to analyze those existing business names and help you decide whether to proceed with that name or try another.

Second – especially for those of you with dreams of expansion – be creative!  Only certain trademarks are eligible to be registered with the United States Patent and Trademark Office and enjoy the protections that come with federal registration.  One primary requirement is that your name meet a minimum threshold of distinctiveness and creativity.  If someone asks you what your business does and you can’t explain it without using the words in your name, the name probably will not be eligible.

We can help you conduct thorough searches, interpret the search results, and analyze the strength of your proposed name so that you can be comfortable that the name is fully vetted before you make a commitment to it.  A little effort up front can go a long way; if you are not careful when selecting your new business name, you may end up with much bigger problems than selecting a great logo.

Material presented on the Wood & Bembry LLC website is intended for information purposes only. It is not intended to be professional advice and should not be construed as such. Any unauthorized use of material contained herein is at the user’s own risk.

Where there’s a will, there’s . . . a financial power of attorney (Part 2 of 2)

When a client comes to us to have a will drafted, we make sure that the client, at the end of the process, has not only a will but a complete set of basic estate planning documents.  The set also includes an advance directive for healthcare and a financial power of attorney, two documents that enable you to influence what happens to you and your property while you are alive but unable to take care of these matters yourself.  In this part two of a two-part series, we explore the financial power of attorney.

The financial power of attorney that we typically draft with an estate planning package grants your designated person – the “attorney-in-fact” – certain enumerated powers to deal with your financial matters.  The powers that you might grant to your attorney-in-fact include, for example, the power to enter into transactions with your bank or credit union, to make payments on your behalf, to deal with your real property or personal property, or to enter into loan, business, or insurance transactions.  When a power is in effect, your attorney-in-fact may deal with your property or financial matters to the same extent and in the same ways that you normally could.  Your attorney-in-fact may make decisions on the same matters that you would have the right to do, and you will be bound by your attorney-in-fact’s decisions and actions.  Your attorney-in-fact, in turn, is legally bound to act for your benefit.

You don’t have to give any powers away immediately, though.  Our typical financial power of attorney only goes into effect when you are unable to handle your business and financial affairs in a prudent and reasonable manner.  This decision is not made lightly or uncertainly.  The determination that you are incapacitated and your financial power of attorney should go into effect in this way is made, in writing, either by your principal attending physician or by a committee of trusted loved ones or friends nominated by you.

In short, having a financial power of attorney that can go into effect in an emergency can prevent your financial affairs from stalling or suffering while you are not in position to handle them yourself.

Material presented on the Wood & Bembry LLC website is intended for information purposes only. It is not intended to be professional advice and should not be construed as such. Any unauthorized use of material contained herein is at the user’s own risk.

Where there’s a will, there’s . . . an advance directive for healthcare (Part 1 of 2)

When a client comes to us to have a will drafted, we make sure that the client, at the end of the process, has not only a will but a complete set of basic estate planning documents. The set also includes an advance directive for healthcare and a financial power of attorney, two documents that enable you to influence what happens to you and your property while you are alive but unable to take care of these matters yourself.

An advance directive for healthcare (“advance directive”) is a legal document that combines the traditional living will and medical power of attorney. It is a vehicle to help you accomplish two primary objectives: appointing a healthcare agent and expressing your wishes as to end-of-life decisions.

• Appointing a healthcare agent. Through an advance directive, you may choose to nominate a person to serve as your healthcare agent. A healthcare agent is a person who is authorized to act on your behalf when you are unable to, or choose not to, communicate your decisions when it comes to your medical treatment. Medical professionals turn to your agent only when you are unable to communicate with them as to your treatment or when you say that you would like for them to turn to your agent. Your agent then has the same access to your healthcare records that you do and can disclose information from your records to others for your ongoing care. Your agent has the authority to make the decisions that you could make yourself – admitting or discharging you from a healthcare facility; entering agreements with doctors, hospitals, or other facilities or service providers on your behalf for provision of your care; and requesting, consenting to, withholding, or withdrawing any kind of care or treatment. Furthermore, the person may accompany you if you must be transported in an ambulance and may consult with you in person while you are in a healthcare facility. Finally, you may opt to give your agent the authority to make decisions as to the disposition of your body after death.

• Expressing preferences for end-of-life decisions. You may also use an advance directive as a way to set forth your general opinions and preferences as to end-of-life decisions, including use of nutrition or fluids by medical means, a ventilator, or cardiopulmonary resuscitation. The preferences that you express in your advance directive will go into effect only if you are unable to communicate your treatment preferences after medical personnel make reasonable and appropriate efforts to have you do so. You may also designate the situations when your preferences would be effective. They would go into effect only when your attending physician and another physician examine you and certify in writing that you have a terminal condition or are in a state of permanent unconsciousness. If your preferences go into effect, your physician will use them to guide decisions if your agent is unavailable or, if your agent is available, your agent will take your choices into account in making these decisions for you.

Once you have an executed advance directive, you should provide a copy to your primary physician and any specialists who should reasonably have a copy. If you face a medical emergency, you or your agent should provide a copy to your attending physician as soon as possible. If a healthcare provider has a copy of your advance directive, the provider is obligated to enter the advance directive in your records, grant your agent adequate access to you, consult with your agent, comply with your agent’s decisions, and give your agent the same right to examine and copy your medical records that you would have. While your healthcare provider is not required to comply with your end-of-life treatment preferences expressed in your advance directive, one who refuses must notify you or your agent of his or her refusal and permit you to be transferred to another physician who is willing to comply with your wishes.

These subjects are, of course, not fun to contemplate. Taking the time to consider them and execute an advance directive, however, may save your loved ones from some of the challenges they would face if you were ever in a difficult medical situation.

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Check back in two weeks for part two of this series, explaining financial powers of attorney.

Material presented on the Wood & Bembry LLC website is intended for information purposes only. It is not intended to be professional advice and should not be construed as such. Any unauthorized use of material contained herein is at the user’s own risk.

Work-for-hire agreements help you sidestep surprises about a copyright’s rightful owner

Copyright law does not protect ideas.  By default, the person who first brings a creative idea into a permanent form – the one who puts pen to paper and draws an animated character, or records a new song, or writes a promotional piece for a business –is the one who can rightfully claim copyright.  Sometimes, though, you need to be the owner of the copyright for a work that you hired someone to create.  In this case, you may need to have in place a written work-for-hire agreement.

A work-for-hire agreement is absolutely necessary if you want to claim copyright for something that you specially commission an independent contractor to create.  If the person creating the work for you is your employee, though, a written agreement may not be required.  You need to consider several factors to determine whether the relationship is truly “employer-employee,” including how much control you have over the person and over his or her work.  If the person is acting as an independent contractor, a written agreement will be required for the independent contractor’s creation to be considered your property.

Another important consideration is that only certain types of creations that an independent contractor may be enlisted to prepare can ever be considered a work made for hire.  The Copyright Act tells us that a work commissioned from an independent contractor may only be a work made for hire if it is a contribution to a collective work, a part of a motion picture or other audio-visual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas.  If the work falls into one of these categories, then it is eligible to be a work made for hire.

In sum, if you commission an independent contractor to create a work for you that falls into one of these categories, then you should have a work-for-hire agreement drafted and signed before the independent contractor gets started.

Material presented on the Wood & Bembry LLC website is intended for information purposes only. It is not intended to be professional advice and should not be construed as such. Any unauthorized use of material contained herein is at the user’s own risk.