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Trademark protection for your business

Regardless of the size or nature of your business, you probably use terms, symbols or packaging to identify your goods or services. Those terms, once they are associated with your goods or services, are now trademarks. Your trademarks are valuable and should be protected to prevent competitors from capitalizing on your established goodwill. Based on a trademark, customers may choose your good or service simply because they trust your name over that of another. However, if a similar mark is used by an infringer, customers may be drawn away from your products or services because of the confusing similarity. Having protected trademarks can prevent this confusion.

In order to receive protection under the law, a trademark must be a distinctive identifier of goods or services. The more distinctive the mark, the more protection it receives. To ensure protection, you could select an arbitrary name, such as Camay, for example, if you were a soap manufacturer. Camay has no dictionary meaning, and it does not describe or suggest anything about the soap; such a mark is the strongest type of trademark. It quickly sets into the customer's mind and makes it easier to recall that particular brand.

Once you have established a trademark, it is important to take steps to protect it. The most basic way to protect a trademark is through use. As long as you use the mark in commerce, you are afforded some protection under the law. Use also allows you to use the " symbol next to your mark to let others know you are using a particular word, phrase or symbol as a trademark. Through use alone, you may be able to ask a court to order an infringer to stop using the mark within your limited geographical area. However, you may choose to register your mark with the state and/or federal government.

State registration is ideal for companies doing business only within the state of Illinois. Illinois registration requires an application and registration fee along with proof of use of the mark in commerce, which may include business cards, advertisements or letterhead. Once registered, infringement by another Illinois business may allow the registered mark owner to obtain a court order preventing future use, requiring corrective advertising and awarding monetary damages.

For nationwide protection, a mark may be registered with the United States Patent and Trademark Office (USPTO). When a trademark is registered with the USPTO, the trademark owner may use the symbol ® next to the mark, giving everyone notice that the mark is registered with the U.S. government. The requirements for federal registration are similar to those for Illinois, including application and filing fees and proof of use in commerce.

If you believe you have a distinctive mark that identifies your goods or services in commerce, the first step toward protecting the mark is to ensure that no one else has registered or is using the it.

TRADEMARK TIPS

  • Make your name memorable. A creative, distinctive name will not only be entitled to a high level of trademark protection, but it will also stick in the minds of your customers.
  • Avoid geographical names. Besides being easy to forget, and difficult to protect under trademark law, a geographical name may no longer fit if your business expands its sales or service area.
  • Don't limit expansion of product lines. If you sell canvas awnings using the name Sturdy Canvas Awnings, your name might be a burden if you decide to start making other products such as canvas signs or vinyl awnings.
  • Don't choose a generic term in any language. The USPTO requires that marks be translated, so coche would be a generic term for a car dealership because coche means car in Spanish.
  • Conduct a proper search. Be sure the name or logo is actually available to be used by your business.
  •  Alan Singleton is a corporate and intellectual property law attorney with Singleton Law Firm, P.C. In Champaign. He can be reached at 217-352-3900 or www.singleton.law.pro.

    Negotiating for the best commercial lease

    Jason Barickman

    Jason Barickman
    CIBM Contributor

    When it comes to leasing commercial real estate, make sure you've covered your bases before you sign on the dotted line.

    On its surface, it may seem like a relatively straightforward transaction, but there is no such thing as a standard lease. In theory, every provision of your lease is negotiable. The important thing to consider is what you want and what you can afford. The end result may be a more favorable lease that saves your company money.

    Scrutinize the lease carefully. It is a legally binding contract, not something you can break at will or change to suit your future business needs. There are numerous provisions in every lease that may have unintended consequences on the tenant.

    One aspect of the lease to focus on is the lease term. Shorter lease terms benefit a tenant by creating flexibility to meet your changing business needs. Longer lease terms benefit the landlord by creating fixed income streams. Of course, longer lease terms also create a predictable office expense for your business, rather than putting your business at risk of rising rent costs in a hot real estate market. The longer lease term you are willing to agree to, the more likely that your landlord will make more concessions in other areas of your lease.

    Negotiating the right to assign or sublet your space allows you an exit strategy without necessarily breaking your lease agreement. Also, if the space is larger than your business needs, you can sublease some of the space until your business is ready to use it.

    Even if the rental price has been set, the landlord may be willing to provide an allowance for tenant improvements to the space to meet your business needs. It is not uncommon to move walls to meet individual office requirements. Often, the only question is whether that is an expense of the landlord or tenant. Tenants want to make sure their landlord won't unreasonably prohibit or delay them from making alterations to the property. Also, watch for clauses that require the lease premises to be returned in their original condition.

    Companies that sign long-term lease agreements are optimistic about the future of their business. As such, business owners should plan for their success accordingly. A landlord may be willing to grant an option to renew your lease, often at a fair market price or  even better  at a pre-determined, fixed price. If you are leasing space within a building, a right of first offer requires your landlord to present newly available space in your building to you before presenting it to third parties. A right of first refusal allows you to match any third party deal to lease space in the building.

    Even rent is negotiable, within certain limits. Longer lease terms often have rent escalations, which some landlords are willing to cap. A reduced rent for a few months may help offset your moving costs. A gross lease includes utilities, repairs, taxes and insurance in you rent payment, while a net lease requires you pay these costs separately. Some landlords accept higher rent payments in lieu of a net lease.

     Jason Barickman is a lawyer with Bartell & Barickman, LLP, in Champaign. His practice focuses almost entirely on business and real estate law. He can be reached at 217- 352-5900 or jbarickman@jbar2.com.

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