​The pandemic has caused a surge in creativity and business creation, but it has also caused a lot of desperation and many entrepreneurs and businesses are seeing fraudulent accounts created on social media advertising under their same business name. As horrifying as it sounds, this is one of the main reasons I urge trademark registration early on. Yes, trademark before your brand is big.
 
Let’s talk about what exactly a trademark is. A trademark can be a brand name, business name, or logo and it gives the holder federal protection and the exclusive right to use the trademark nationwide. Trademarks identify the source of goods or services and are meant to protect the public as consumers from confusion. To trademark your brand name, you must register with the United States Patent and Trademark Office (USPTO) and certain specific requirements must be met. In fact, until you have an officially registered trademark, you cannot stop others from using your same brand name or logo.
 
A trademark should not be confused with a patent or copyright. Although all three are areas of intellectual property.
 
Patents protect inventions and are granted for 20 years from the date of filing. There are two different types of patents, utility and design patents. When you think of utility patents, think of Coca-Cola’s secret recipe. For design patents think Coca-Cola bottle design and the iPhone.
 
Copyright protects authors of “original works of authorship”. When you think of copyrights, think art, song lyrics, literature, and as of recent, blog posts! Yes, bloggers can now copyright their blog posts.
 
As your brand grows trademarks can also be monetized through licensing. For example, all of your favorite college football team’s colors, logos, mascots, player’s numbers, and jerseys are trademarked. This means merchants, television broadcasters, and video games must receive permission and pay license fees to the NCAA for use of any team’s trademarks. The NCAA rakes in hundreds of millions of dollars every year from licensing alone. Because of this, the NCAA is very strict on infringers. It’s important to remember that you cannot protect your brand from infringers unless you have registered with the USPTO as I stated before. For this reason, it is important that you get a clearance search and register your brand name, logo, or business name as soon as possible BEFORE your brand grows and is out in the public for others to mimic and copy.
 
When you are ready to trademark your brand, please contact us and refer to our firm’s trademark page for more information, it can be found by clicking here. There are many online companies that will file your trademark without an attorney for a cheap price. You’ll find that most of these applications are rejected and the online company is not able to assist you with responding to the USPTO’s requests and office actions.

In the early stages of startups many entrepreneurs are so focused on their product or raising capital, that they bypass the legal aspects of starting and running a business. While the legal portion of starting a business may seem tedious and daunting for new startups, the legal steps are imperative to the success and profitability of the business. If not addressed early on, the following legal checklist items, as reflected in this Forbes article, will inevitability be very painful and costly later down the line.

1. Partnership or Founders Agreement

This will likely be the very first and most important legal document for startups if there are multiple founders. Here are some of the legal questions the Partnership Agreement will address to ensure all founders are on the same page regarding the business and their positions to prevent costly litigation down the line:​

• How will the equity be split among the founders?
• Is each founder’s percentage ownership in the company subject to vesting based on continued participation in the business?
• What are the roles and responsibilities of the founders?
• If one founder leaves, does the company or the remaining founders have the right to buy back the departing founder’s shares? If so, at what price?
• How will key decisions and day-to-day decisions of the business be made? (by majority vote, unanimous vote, or are certain decisions solely in the hands of the CEO?)
• What assets or cash does each founder contribute or invest into the business?
• How will a sale of the business be decided?
• What happens if one founder isn’t living up to expectations under the founder agreement?

​2. Incorporation

Deciding whether you should form your startup as an LLC or a C Corp is a very important legal decision that comes with serious financial and other implications. For instance, most venture capitalist require startups to be formed as c-corps. You can see more about organization structure and documents here.

C Corporations are governed by state law and most are incorporated in Delaware. This type of business entity is favorable for investors because the structure supports investment protection through shareholder agreements, board of directors, and stock options. 

Limited liability companies are also governed by state law and have more favorable tax implications. Unlike, C corporations, LLCs offer flow-through taxation and protection to its members but its structure does not support investments.

3. Confidentiality Agreement or Non-Disclosure Agreement

Before disclosing your startup's product or business idea to other parties you should make sure they sign a confidentiality agreement also known as a non-disclosure agreement. By signing this agreement the party receiving the information agrees not to further disclose the protected product or idea to another party. In its early stages, you want to make sure you implement the necessary protocols to keep your information secret.

4. Intellectual Property Assignment Agreement

When individuals or companies are hired to create a product for your startup you want to make sure they assign all trademark or inventor rights to the product and designs to you. This will ensure your startup owns the rights to the  intellectual property and has the exclusive right to its use.

5. Intellectual Property Protections

In the early stages it's important to secure intellectual property rights to your startup's product and brand. These rights prevent others from taking your idea or product and brand and copying it. Securing IP rights also allow you to monetize through licensing later down the line once your product enters commerce. For information on federal trademark registration you can refer to our services here.

​If your startup has not crossed out items on this list, you can contact us here to schedule a consultation. We are here to serve.


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