Trademarks

You are sitting in your office on the busiest day of the year, and just when you think nothing else could go wrong, a person walks in and utters the fateful words “You’ve been served”, while handing you a stack of papers.   Your business is a party to a New York civil litigation lawsuit. Your business has  just been sued.  What is the best course of action you can take, and how can you protect yourself as well as your business?

Who?

Read the papers that are given to you to find out the party that is suing you and the type of civil litigation you are involved in.  Is it a corporation, a partnership, or an individual?  Are they a customer or a supplier of your business? Who is the lawyer representing the party that is suing you?  This information will help your attorney obtain a more favorable result for you by researching the other party and its counsel. (Do they settle often?  Are they a big company?  What are their financial resources?  Do they have a reputation to maintain and therefore may want to settle quickly?).

What?

What exactly are you being sued about?  Is it a breach of contract claim? Is it a non-payment claim, or a non-performance claim?  Those are many reasons why a business may be sued.

When?

In Civil Litigation, timing is critical in a lawsuit.  Responses must be filed within a set period, which in New York is  usually within 30 days.  While an extension can be granted, don’t wait until the last minute to contact your attorney.  It takes time to prepare an appropriate answer to the papers.  If you do not respond in a timely fashion, you will be considered in default, and a judgment may be taken against you.  This means you may lose the case without the opportunity to provide a defense.

Also, don’t assume you are judgment proof, because judgments can be collected from future earnings as well as assets.  In addition, do not assume that your insurance covers everything, although it may be wise to notify your insurance carrier as well as your attorney.

Where?

What court are you being sued in?   What county?  State or Federal Court? You may be sued in a state far away if, for instance, you have done business in that state.  In that case, your New York attorney will have to obtain local counsel for your small business in the other state, and this takes time.

Why?

Why did the party resort to a lawsuit?  Is it something you can fix by having your attorney talk to the other side and negotiate a settlement?  Is there a running animosity between your company and the other party, in which case settlement will be difficult?  Do you need to file a counterclaim against the other party?

How?

Immediately notify and supply the civil litigation  lawsuit papers to your attorney.  Make sure you retain a photocopy for yourself.  Inform your attorney of all the facts relevant to the case.  Your attorney will decide what is important and what is not.
Organize your documents pertaining to the case so that you can minimize the time the attorney must spend going through them.  This will save your attorney ’s time, and therefore save you legal fees.  Do not talk to the other party’s attorney.  He works for the other party, just as your attorney works for you.  Let your attorney do this for you.  In addition, remember that in law, just as in any profession or business, there are rules and procedures  your attorney knows and you may not.  To stay out of trouble, leave the legal work to your attorney.

A trial can take several weeks in New York, including preparation time.  Therefore, it may be in your best interest in certain cases to settle.  However, be realistic in your settlement expectations.

Conclusion

Having an ongoing attorney-client relationship will help protect you in the event of a civil litigation lawsuit.  The more your attorney knows about your business, the better the attorney will be able to help you.  In addition, discussing business options and problems with your attorney ahead of time could help prevent a lawsuit from ever starting.  Either way, it will save you money in the long run.

CALL TODAY FOR A CONSULTATION AT 212-233-0666

 

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If you own a business, you spend a significant amount of time and effort building it up to be successful.  You need to protect it the same way that you protect anything else that is valuable to you.  What is the best way to do that? With Trademarks.

1) What Is A Trademark?

A trademark is any combination of a word, name, symbol, or device that distinguishes the goods of one person from goods manufactured or sold by others.  It does not just apply to manufacturing businesses, but also to service businesses where it is called a service mark, but is essentially the same thing as a trademark.  Even a particular color that brands your business can be deemed a trademark.  It could also be trade dress, i.e, the particular interior style of a restaurant that is unique to that brand.

2) Why Do You Need One?

The world is competitive enough. Why let someone take what you have worked so hard to build, when there is a remedy to prevent them from doing it?   A trademark will be able to help you protect and brand your business without having to worry about competitors using and diluting your brand, and confusing your customers with a product of lesser quality.  Having a trademark helps you obtain your niche in the marketplace, and helps customers recognize your brand.  As a business owner you spend large amounts of money on advertising, marketing, and other methods of branding your products.  Don\’t let that money go to waste by not protecting your investment in your business.  When you trademark your name, logo, or trade dress, you are protecting both your business and your bottom line.

3)  How Do You Get A Trademark?

There are many different ways to obtain trademark protection.  You can obtain protection through the Lanham Act, which covers Federal Trademark Protection, through individual state laws, and through particular types of usage.  You want to make sure it is done properly so you are getting the protection that you really want.  Your attorney can decide what is best for your business.

4) How Do You Protect The Trademark?

A trademark can be lost when the trade name becomes so generic, or in such widespread use, that it no longer reflects a particular brand, but only the product.  Examples of this are Band-Aid brand adhesive bandages, Scotch Tape brand tape, and Xerox brand copiers.  One way to protect against your trademark becoming generic is  making sure not to use the trademark as a substitute for the name of the product, such as in the examples above.  Make sure the trademark identifies the brand.  Come in and we can discuss what the best procedure for you and your particular business is, and how to protect your trademark once you have it.

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