Q: When should I form my LLC or other business entity type?
A: Forming your business entity is one of the first steps to officially launching your business. Even if you are not offering your goods or services to the public yet, you should form your busness entity when you start spending money to start or grow your business. There are tax advantages for business owners, and you can deduct your business expenses from your annual gross income, which leads to you paying less in taxes. In addition, you should form your business entity before you become a party to a contract on behalf of your business. Generally, all contracts for the benefit of your business should be between your business entity (not you individually), and the other party. That way, you can take advantage of the limited liability of an LLC or corporation.
Q: Is my brand eligible for a trademark?
A: Trademark protection is essential for protecting the investment that you have made in your brand. If your brand is distinctive, you will be eligible for full trademark protection once you have started offering your goods or service to the public. You must offer your goods and services to consumers in more than one state for federal protection, as opposed to state trademark protection. Trademark protection is not available to protect your business name or logo for a business that you plan to start much later in the future. In some circumstances, an intent-to-use trademark is available if you have not already started to offer your goods or service to consumers, but you must do so in a limited time period. Further, your brand name or logo will not be eligible for trademark protection if it is generic or scandalous.
Q: What is the difference between a distinctive mark and a descriptive mark?
A: Distinctive marks are names or logos that have nothing (or very little) to do with the goods or service that your business is offering. For example, "Apple" is a distinctive mark because the word "Apple" has noting to do with technology products or services, which is what the company offers. "Xerox" is another example of a distinctive mark because "Xerox" is a made up word, and therefore has no meaning in relation to paper goods and services. Distinctive marks receive maximum judicial protection under state and federal laws and leads to a smoother trademark application process. On the other hand, descriptive marks describe the goods or service in some way. For example, "Scrubbing Bubbles" is a descriptive mark because it describes the goods that are being offered - a cleaning product. In addition, a logo including a shoe if your company is selling shoes is also descriptive. If your mark is descriptive, you will be required to submit documented evidence to show that your mark has acquired secondary meaning.
Q: What is secondary meaning in trademark law?
A: Secondary meaning is achieved when the mark, through advertising or other exposure, has come to signify that a good or service is derived from a particular source. Before a descriptive mark can obtain trademark protection, enough evidence must be gathered and submitted with your trademark application, to the satisfaction of your trademark application examiner, to prove that your mark has acquired secondary meaning. A trademark attorney can help you gather the evidence you need to meet the secondary meaning threshold.
Q: How can I protect my business idea or my idea for an invention?
A: Although many are mistaken that a business idea or an idea for an invention may be protected by a copyright, trademark, or patent, the truth is - it cannot. If your potential business venture or invention is only an idea, your best legal protection is in the form of a non-disclosure agreement ("NDA"/confidentiality agreement). It's no secret that you will have to share your idea with others in order to get it off the ground, so having each individual/company involved sign an NDA is a great way to help protect your idea in the early stages of development.