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Trademark Modernization Act: Providing New Tools for Trademark Applicants

By: Vivek Vaidya After years of fraudulent trademarks stacking up in the United States Patent and Trademark Office (USPTO) database, major reform is under way.  The Trademark Modernization Act will go into effect in December of 2021 to provide new tools for applicants to overcome certain refusals to their trademark applications. Specifically, the new processes… Read More

By: Vivek Vaidya

After years of fraudulent trademarks stacking up in the United States Patent and Trademark Office (USPTO) database, major reform is under way.  The Trademark Modernization Act will go into effect in December of 2021 to provide new tools for applicants to overcome certain refusals to their trademark applications.

Specifically, the new processes will focus on challenging trademark applications and registrations that contain inaccurate use claims. The hope is that business owners in the U.S. will make smarter and more honest branding decisions for their products and services.

The TMA will set forth the following new procedures:

Two new post-registration proceedings can be filed with the USPTO Director Institute, in order to request the cancellation of unused trademarks.

1) Expungement: one may request the removal of specific goods/services in a trademark registration because the registrant never used the trademark in US commerce.

2) Reexamination: one may request the removal of specific goods/services by arguing that the trademark was not in use by a particular date as alleged by the registrant, usually by showing the specimen showing the trademark in use was not accurate.

After initiating either of these proceedings, the registrant will have an opportunity to respond with evidence that the information in their trademark registration is accurate.

Changes to the Letter of Protest Procedure.

The TMA codifies the Letter of Protest process, which has been long standing but seldom used.  A Letter of Protest allows third parties to submit evidence prior to an application’s registration that challenges its eligibility to be registered.

Changes to the process and rules around seeking injunctive relief.

As per the TMA, a trademark owner who is seeking injunctive relief (a fancy term for getting someone to stop doing something) is entitled to an arguable presumption of irreparable harm upon a finding of infringement based upon the facts of the case. This rule will help trademark owners enforce their rights against infringers in federal court.

Conclusion

The TMA provides trademark applicants with new tools to challenge trademark registrations that are blocking against their applications.  Instead of costly and lengthy Opposition and Cancellation Proceedings, the expungement, reexamination and Letter of Protest procedures will make it easier and more efficient for rightful trademark owners to establish their rights through registration with the USPTO.

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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Six Options To Negotiate With Your Commercial Landlord During COVID

This article was originally published in Recreate. By: Doug Bend These are tough times for business owners. In addition to decreased revenues, many have discovered their commercial leases do not excuse them from having to pay their full amount of rent during COVID.  Even if there is a force majeure provision that might excuse the… Read More

This article was originally published in Recreate.

By: Doug Bend

These are tough times for business owners. In addition to decreased revenues, many have discovered their commercial leases do not excuse them from having to pay their full amount of rent during COVID. 

Even if there is a force majeure provision that might excuse the tenant from having to perform some of its obligations, the tenant is still typically responsible for paying rent.

We sat down with Benjamin Osgood, the Founder & Managing Director of Recreate Commercial Real Estate,  who contributed insights as our offices have been collaborating on how to help our clients navigate these tough waters.

We have found there are six options to consider when negotiating with your landlord:

1. Walk Away From The Lease.

You can try to negotiate the early termination of your lease, but your landlord is not likely to agree unless you pay an early termination fee and forfeit your deposit.

The early termination fee would likely cover the anticipated expense of the space being empty for a period of time  until a new tenant can be found and the landlord’s unamortized lease expenses such as leasing commissions and tenant improvement construction costs. 

2. Abatement of Rent.

You could also try to negotiate for your rent to be forgiven for a specified period of time until your revenues will hopefully be back up or you can more fully use the space.

That being said, many landlords are not willing to agree to rent abatement because from their perspective they still have the same amount of expenses for the space. In addition, you most likely agreed in your lease that rent would still be owed even during a pandemic.

A fallback position is to offer to agree to an extension of your lease for the same amount of time for a pause on your rent. For example, your landlord might be more willing to agree to you not paying rent for the next three or six months if your lease is extended for the same amount of time.

3. Deposit Burn Down.

Another option is to ask your landlord to apply all or a portion of your deposit to your rent, especially if you’re nearing the expiration of your lease.

Your landlord may push back because your lease most likely explicitly provides that the deposit is not intended to be used for rent.

If so, you could offer to replenish the deposit within six or twelve months should there be substantial lease term remaining.

4. Reduced Rent.

Some landlords have agreed to a reduced amount of rent based on the amount of the tenant’s reduced revenue. 

Your landlord might prefer to reduce your rent for three or six months than risk you going out of business and having to find a new tenant.

5. Deferred Rent.

You are likely to have the most success negotiating deferred rent than abated or reduced rent.

For example, you could ask your landlord to not charge you rent for the next three or six months and for that amount of rent to instead be added to your rent in equal increments over the following six or twelve months.

It might be easier for you to make those catch up payments once revenues have increased when there is a widely distributed vaccine or the number of people who are infected has dramatically decreased. 

6. Tenant Improvements.

Lastly, if you are negotiating a new lease you could ask for an additional tenant improvement allowance for installing high quality air filters, signage and other measures that can help reduce the risk of infection. 

This could be a win/win as such measures could help decrease the potential for a successful lawsuit for negligence against both you and your landlord by an employee or a visitor.

What Perspective Does Your Landlord Have?

We have found that landlords are likely to have one of two perspectives:

(i) No Rent Change.

Some landlords are not willing to negotiate the amount of rent because their expenses have not decreased.

In addition, they believe the tenant should be required to meet its contractual obligations to continue to pay the full amount of rent.

(ii) Some Rent Or Delayed Rent Is Better Than No Rent.

Other landlords recognize that if they are not flexible the tenant might have to close down and that some rent or the delayed payment of rent is better than no rent.

You cannot control which of these perspectives your landlord might have, but by being flexible and presenting a variety of the options outlined in this article your landlord is more likely to agree that one of the solutions is fair for both parties during these uncertain times.

The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.

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What is California’s Business Property Statement?

By: Doug Bend Businesses in California are required to file a business property statement (Form 571-L) with their County Assessor by August 31st of each year if: (1) the County Assessor’s Office sends the business a notice to file the statement or (2) The business has taxable business property with a total cost of $100,000… Read More

By: Doug Bend

Businesses in California are required to file a business property statement (Form 571-L) with their County Assessor by August 31st of each year if:

(1) the County Assessor’s Office sends the business a notice to file the statement or

(2) The business has taxable business property with a total cost of $100,000 or more.

The business property statement includes details of the cost of the company’s equipment, supplies, improvements and fixtures.

We recommend you contact your CPA if you need help filing the business property statement. 

If you are not already working with a great CPA, please contact us at info@bendlawoffice.com and we would be happy to make a recommendation.

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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The Contractual Language of Love: Ensuring Compliance for Dating Service Contracts

By: Brandon Shelton Several years ago, before everyone from third graders to your grandparents had the world wide web at their fingertips, the single mingling population had but one option to search for a mate: walk out into the world and find that person. That’s not to say there weren’t other modified versions of that… Read More

By: Brandon Shelton

Several years ago, before everyone from third graders to your grandparents had the world wide web at their fingertips, the single mingling population had but one option to search for a mate: walk out into the world and find that person. That’s not to say there weren’t other modified versions of that option, such as blind dates set up by a friend or socialite matchmakers, but the vast majority of our quests for companionship relied upon chance and fate that you would run into someone that complimented you in just the right way.

The modern world is quite different. The birth of the internet became an opportunity for companies to create technology to bridge the gap between you and that person. Indeed, the emergence of the dating app culture has all but eliminated the reliance upon meeting via happenstance. In this world, perhaps you have had the foresight to see a specific gap in the dating world, and you are certain that your idea for an online dating service will be one that substantially disrupts the dating services market. If so, by all means, you should pursue that endeavor. However, in doing so, you should be aware of a lesser known law in California governing dating services.

In particular, California Civil Code Sections 1694-1694.4 provide rules around how dating services may engage with its customers. Assuming your business engages with its customers through a “dating service contract,” which could be interpreted by a court rather broadly, several subsections of these statutes relate to what must be included in the contract itself. Under Section 1694.1(b), such dating service contracts must include “in close proximity to the space reserved for the signature of the buyer, a conspicuous statement in a size equal to at least 10-point boldface type, as follows:

“You, the buyer, may cancel this agreement, without any penalty or obligation, at any time prior to midnight of the original contract seller’s third business day following the date of this contract, excluding Sundays and holidays. To cancel this agreement, mail or deliver a signed and dated notice, or send a telegram which states that you, the buyer, are canceling this agreement, or words of similar effect. This notice shall be sent to: (Name of the business that sold you the contract) (Address of the business that sold you the contract).””

Cal. Civ. Code § 1694.1(b).

This language relates to a mandatory three-day “cooling off” period that would allow your customers to cancel their dating services contracts. The idea is that customers of dating service providers should have the ability to rethink whether or not they feel the need to pay for such services (even if that is the cultural norm at this point).

Additionally, you must also include language that a buyer or their estate should also have the ability to be relieved of any payment obligations in the event of death or disability, and further must have the right to be reimbursed for any unused prepaid services in such an event. Cal. Civ. Code § 1694.3(a). You must also give the customer a right to cancel if they move when the move renders the services unfeasible. Cal. Civ. Code § 1694.3(b). In addition, you must include your company’s address conspicuously on the first page of the contract. Cal. Civ. Code § 1694.2(c).

While there is some caselaw out there that suggests a court may expect a customer to actually benefit from these provisions in order to bring a successful claim, the statutes are written in such a way that could very well invalidate your entire contract if you fail to include that language. Under Section 1694.4(a), “[a]ny contract for dating services which does not comply with this chapter is void and unenforceable.” These statutory requirements are also not available to any waiver. Cal. Civ. Cod § 1694.4(e). You should be very careful and deliberate in writing any contract for dating services, whether they be in person or provided online. In the case of online dating services, you will likely want to make sure that you specifically direct your users’ attention to your Terms of Service, perhaps by a click through screen at the time of engagement, and include the language and terms required by Sections 1694-1694.4. There are several other limitations imposed by these chapters, for which you should seek an attorney’s assistance in interpreting to ensure full compliance, as a failure to do so could completely void your contract, leaving you without any recourse in anticipated payments.

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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How To Dissolve A California Corporation

By: Doug Bend So you need to dissolve your California corporation?  You should consult with your attorney and CPA as the steps can vary from company to company, but there are typically twelve steps to dissolve a California corporation. 1.  Approval Of The Board Of Directors. A majority of the board of directors needs to… Read More

By: Doug Bend

So you need to dissolve your California corporation?  You should consult with your attorney and CPA as the steps can vary from company to company, but there are typically twelve steps to dissolve a California corporation.

1.  Approval Of The Board Of Directors.

A majority of the board of directors needs to pass a written resolution approving the dissolution of the corporation.  

2.  Approval Of The Shareholders.

If shares have been issued, a majority of the outstanding shares will also need to approve the company’s dissolution in written resolutions.

3.  Notice of Dissolution To Creditors.

If the company has any creditors, it should provide them with notice of when claims must be submitted for payment to be considered.

4.  Certificate Of Dissolution.

A certificate of dissolution will then need to be filed with the California Secretary of State’s Office. 

5.  Discontinued Registered Agent For Service Of Process Services.

If you are using a third party service provider as the corporation’s registered agent for service of process, you should notify them of the dissolution so you do not continue to get charged for the service.

6. File Declaration Of Closed Business With The City.

If the corporation is registered with a city, most cities require that the business registration be inactivated.  For example, if your corporation is registered to do business in San Francisco, a Declaration of Closed Business would need to be filed.

7.  File An Abandonment Form For Your Fictitious Business Name Statement.

In addition, most jurisdictions require you to file a form notifying the county that you will no longer be using any fictitious business names that you registered. For example, in San Francisco you would need to file a Statement Of Abandonment Of Use Of Fictitious Business Name Statement.

8.  Cancel Any Other Licenses And Permits.

You will also need to cancel any additional licenses or permits, such as your California Seller’s Permit and your registration with  the Employment Development Department.

9.  IRS Form 966.

Within 30 days of the board of directors approving the dissolution, IRS Form 966 must be filed.

10.  IRS Forms 8594 and 4797.

If the dissolution involves the sale or exchange of corporate assets, IRS Forms 8594 and 4797 may also be necessary.

11.  Final State Tax Return.

You will need to work with your CPA or other tax professional to file a final state tax return.  You will also need to file any delinquent tax returns and pay any owed taxes.

In California, the Franchise Tax Board will continue to assess an annual franchise tax until the corporation has filed a final tax return with the FTB.  You should indicate it is the final return by checking the box that it is the final return and writing “final” on the top of the return.

12.  Final Federal Tax Returns.

Lastly, a final federal tax return needs to be filed for the corporation.  Like the state tax return, you should indicate on the form that it is the final return for the company.

For many companies these are the steps to officially close down a California corporation, but please contact us at (415) 633-6841 or info@bendlawoffice.com to make sure no additional steps are required as each situation is unique.

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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How Do You Dissolve A California LLC?

By: Doug Bend There are typically ten steps to dissolve a California LLC: 1. Review The LLC’s Operating Agreement. You should first review your LLC’s Operating Agreement to see what steps it requires for dissolution. 2. Member’s Resolution Approving The Dissolution. Most likely you will need a written Member’s resolution approving the dissolution of the LLC…. Read More

By: Doug Bend

There are typically ten steps to dissolve a California LLC:

1. Review The LLC’s Operating Agreement.

You should first review your LLC’s Operating Agreement to see what steps it requires for dissolution.

2. Member’s Resolution Approving The Dissolution.

Most likely you will need a written Member’s resolution approving the dissolution of the LLC.

3. Secretary of State’s Office.

Next, you will file a dissolution form with the California Secretary of State’s Office.  Which form you file will depend on when the LLC was formed and whether you have the unanimous consent of the Member’s to dissolve.

4. Notice of Dissolution To Creditors.

If the company has any creditors, you should provide them with notice of when claims must be submitted for payment to be considered.

5.  Discontinued Registered Agent For Service Of Process Services.

Once you get the endorsed dissolution filing back from the Secretary of State’s Office, if you are using a third party provider for your company’s registered agent you should notify them of the dissolution so they do not continue to charge you for the service.

6. File Declaration Of Closed Business With The City.

If the LLC is registered with a city, most cities require that the business registration be inactivated.  For example, if your LLC is registered to do business in San Francisco, a Declaration of Closed Business would need to be filed.

7.  File An Abandonment Form For Your Fictitious Business Name Statement.

In addition, most jurisdictions require you to file a form notifying the county that you will no longer be using any of the fictitious business names that you registered for the LLC. For example, in San Francisco a company would need to file a Statement Of Abandonment Of Use Of Fictitious Business Name Statement.

8.  Cancel Any Other Licenses And Permits.

You should cancel any additional licenses or permits, such as your California Seller’s Permit and your LLC’s registration with  the Employment Development Department.

9.  Final State Tax Return.

If you elected to have the LLC taxed as an S corporation, you will need to work with your CPA or other tax professional to file a final state tax return.  You will also need to file any delinquent tax returns and pay any owed taxes.

In California, the Franchise Tax Board will continue to assess an annual franchise tax until the LLC has filed a final tax return with the FTB.  You should indicate it is the final return by checking the box that it is the final return and writing “final” on the top of the return.

10.  Final Federal Tax Returns.

Lastly, if the LLC elected to be taxed as an S corporation a final federal tax return will also need to be filed.  Like the state tax return, you should indicate on the form that it is the final return for the company.

Please do not hesitate to contact us at info@BendLawOffice.com if you would like our help to dissolve your California LLC.

The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.

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Should I Have A Separate LLC for Each Of My California Locations?

By: Doug Bend If you are planning to open up more than one location of your business in California, you have two options to consider. (1) Only Have One Legal Entity For Multiple Locations. You could update the city business license for your existing legal entity to operate the additional locations. The advantage to this approach… Read More

By: Doug Bend

If you are planning to open up more than one location of your business in California, you have two options to consider.

(1) Only Have One Legal Entity For Multiple Locations.

You could update the city business license for your existing legal entity to operate the additional locations.

The advantage to this approach is you would save $3,000 to $4,000 a year by not having to pay duplicative costs for a separate legal entity. For example, you would not have to pay your CPA to file a separate tax return or pay California the annual franchise tax for multiple entities.

The disadvantage to this approach is if you operate multiple locations under the same legal entity if something happens at one location it could put in jeopardy all of the assets that are in the same legal entity from your other locations.

(2) Have a Separate Legal Entity for Each Location.

The second option is to have a separate legal entity for each location.

The drawback to having a separate legal entity for each location is you would have the expense of maintaining each entity.

The advantage is the assets from each location would be held in separate and distinct entities. As such, it might be more difficult for a successful plaintiff to get at the assets of all of your locations if something were to happen at one location.

In addition, you could give key employees and advisors equity in the location they are adding the most value too instead of equity in your entire company. For example, you may want to give your store manager in San Francisco equity in an entity for that location and not equity in one entity that runs locations in other parts of California as that manager has very little to do with those other locations.

Please feel free to contact us at info@BendLawOffice.com if you would like to chat through the advantages and disadvantages of having multiple legal entities as you grow your business.

The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.

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