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Trademark Lessons for Nonprofits

For most of us, when we think of trademarks, we think of iconic brands such as Nike, Coca-Cola, Apple, or McDonald’s—all of which are for-profit businesses.    But what about the Salvation Army, the United Way, or the infamous “Livestrong” bracelet?   Nonprofits, especially in recent years, have started to realized the importance of protecting their intellectual property and using trademarks to distinguish themselves.

Broadly speaking, there are two things all nonprofits should be aware of when it comes to trademarks.   First, nonprofits should make sure that they are not violating anyone else’s trademark rights.   Second, nonprofits should make sure that they are taking proactive measures to protect their own brands, for example, by applying for trademark registration.

Your brand says a lot about you. Whether it’s through your website, marketing materials, or direct experience with your services, your brand is your first point of contact with the public.  In a competitive, high-tech economy, businesses must do everything they can to distinguish themselves. Trademarks and service marks are the most powerful and effective tools businesses can use in meeting this goal.

This is even truer for a nonprofit, for whom goodwill, reputation, and image are its lifeblood.   Branding will often play an integral role in helping your organization advance its message, raise funds, and fulfill its charitable, educational, or religious purpose.

Finally, it’s important for tax-exempt organizations to remember some unique considerations with respect to trademarks that don’t apply to for-profits.    The following are some examples of IRS-specific rules that raise particular concerns, especially in instances where a nonprofit is generating significant revenue in licensing fees from its trademark(s):

  • UBIT. The IRS levies an “unrelated business income tax” (“UBIT”) on income earned from activities regularly carried on that are not substantially related to the organization’s tax exempt purpose.  Income derived from trademark licensing could, under some circumstances, fall into this category.
  • Joint ventures. When developing licensing or co-branding strategies, nonprofits should be careful to avoid creating a “joint venture” which is regulated by the Internal Revenue Code.
  • Private benefit transactions are those that benefit individuals to the detriment of the tax-exempt organization.  Trademark licensing agreements should be constructed in a way that does not benefit an individual(s) to the detriment of the nonprofit.

The following are some resources that nonprofits can use to get a better idea of whether someone else has trademark rights in a particular name or slogan:   The United States Patent and Trademark Office (USPTO) search engine, various state corporations bureaus, internet search engines such as Google, and domain name availability search engines such as Network Solutions.

Please feel free to contact Elliott & Davis, PC with all of your questions about nonprofit law or trademark law.

We currently offer all of our trademark registration services at affordable flat rates—well below the rates charged by many larger law firms.   Typically, our rate for all-inclusive trademark registration packages is $1200.    Phone consultations are always free, so feel free to give us a call at 412.434.4911 ext. 11 with any questions about trademark law.

Understanding Agreements

By Paul Brytus, Esquire

handsWritten contracts are a good idea.  A well-crafted, written document can memorialize the terms of the agreement and serve as a good reference to determine what your rights and obligations are.  In some cases, a written contract is required.  But the lead up to a contract often involves a negotiation process, for example if a car salesman would tell you that the car you are buying comes with certain features, like heated seats to help combat these polar vortexes.  These exchanges are often verbal and occur before you sign the contract.  Sometimes, people will sign a contract based on what they think the contract contains, on these verbal exchanges during the negotiation process (I’ve even done this before).  Herein lies a problem. 

Many contracts contain what is known as an integration clause or a merger clause.  These are often titled as “Entire Agreement,” “Merger,” “Integration,” or something similar.  Sometimes they are not labeled at all, but the substance of the clause is simply written in with other provisions of the agreement.  These clauses essentially state “the terms contained herein constitute the entire agreement and no other representations or promises have been made or relied upon” or substantially similar legalese.

So what does this mean to you?  It appears to be some kind of boilerplate language (a term that you heard about somewhere) and you assume that it only applies to some abstract context that won’t affect you.  WRONG!  Remember those heated seats the salesman promised you?  Your contract for the car contains an integration clause and there is no mention of heated seats in the written contract.  The integration clause will prohibit any evidence (even if it’s written) occurring prior to the written contract.  (That is generally speaking; of course there are exceptions, like any other area of law).  If you sue to get your heated seats, the court will look at the contract and say “there’s no mention of heated seats.”  You will not be getting it no matter how many times you say “but he promised me heated seats.”  (You actually would probably be precluded from even saying this if the right objection is made).

But what if the entire reason that you bought this car in the first place was for the heated seats?  You only signed the contract because of what the salesman told you, namely, that there would be heated seats?  You are SOL (in most cases when I refer to SOL, it means statute of limitations, but here I’m using it in the traditional sense; that you have the same old luck – read “none”).  So the bottom line is, if something is important to you, if it’s something that you absolutely need, make sure it is written into your contract. 

If you have any questions at all, feel free to contact me at:

412.434.4911 Extension 12, or 

EMAIL ME

 

 

So You Think You Want to Disinherit a Child? Be Careful!

There is no one size fits all estate planning solution. Some people opt to devise property to their children in their will, but for others it may make sense to exclude one or more of their children or relatives. As people attempt to address the unique demands of their situation, they may have questions about disinheriting a child. Sometimes people ask about either (1) their legal ability to disinherit a child; or (2) whether they must specifically disinherit a child in their will. Although an individual in Pennsylvania can never completely disinherit a spouse, the same is not true for children.

The Pennsylvania Supreme Court has explained that “a parent does not have to leave any of his property to any of his children, irrespective of whether he likes them or dislikes them, or hates them, and he does not have to disclose his reasons for disinheriting them.” In re Sommerville’s Estate, 177 A.2d 496, 499 (Pa. 1962). However, in the absence of clear and plain language in a will indicating otherwise, it is presumed that a parent does not intend to disinherit their children. In re Newlin’s Estate, 80 A.2d 819, 823 (Pa. 1951). Because of this presumption, it is always better for a will to include plain language which expresses a desire to disinherit a child by name rather than simply leaving them out of the will.

If you would like to learn more about estate planning devices, please contact Adam G. Anderson at 412-434-4911 x14 for a free consultation.

COMPREHENSIVE IMMIGRATION REFORM

The whole world is watching the United States Congress to see what type of new comprehensive immigration law emerges.

In the interim, let’s take a look at recent change to the law, which may not amount to comprehensive reform, but it is worth noting.

 

Rule Changes – Federal Register Notification

Immigrants with spouses, children and parents in the U.S. may not have to wait much longer to get their much sought-after green cards, thanks to a new change in immigration policy.

On January 2, 2013, Secretary of Homeland Security Janet Napolitano described the posting of a final rule in the Federal Register. This will reduce the time U.S. citizens are separated from their spouses, children and parents on waiting lists for permanent citizenship in certain cases.

This took effect in March. Pursuant to this final rule change, those family members of U.S. citizens looking to live in the United States may apply for provisional waivers prior to heading into the country to attend immigrant visa interviews that would help legalize their status. The way this works is, the waiver helps applying immigrants dodge serious penalties for being in the U.S. without documentation during her application process, according to Secretary Napolitano. However, rationale beneath the new rule is to reduce the pain of long separations that face U.S. citizens waiting for loved ones on the other side to be allowed into the country and be reunified.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” U.S. Citizenship and Immigration Services Director Mayorkas indicated in a declaration. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”

Pursuant to the rule pre-March of 2013, undocumented immediate relatives of U.S. citizens to leave the country and get an immigrant visa abroad as part of the green card process. Under that same rule, those who have been in the country unauthorized for more than six months must obtain a waiver before leaving the country in order to obtain an immigrant visa.

Moreover, an immigrant who returned to the USA illegally could be barred from re-entering for several years.

Even with an adjustment to the current regulations, immediate relatives must still leave the as part of the application process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad.

U.S. Department of Homeland Security Statistics provide that approximately 25,000 immigrants seek family unity waivers annually in the USA; eighty-eight percent of those were approved in 2012; 84 percent in the year 2011.

Immigration reform has been talked about for decades. Former President George Bush proposed immigration reform, unsuccessfully. Then, immigration reform was promised during President Obama’s election as President of the United States in 2008. Since then, President has blamed changes in the economy and disagreements with Congress for not proposing comprehensive immigration reform during his first term. This issue re-emerged to the forefront of the national debate during President’s bid for reelection in November of 2012. President Obama has promised to make good on his early pledge to make changes to the process surrounding immigration and Republicans indicating a more willing stance to work for such changes.

Some immigration reform advocates support the March 2013 rule change.

“(We) are pleased that the Obama administration is using its authority to keep families together and we look forward to more leadership as we embark on the long term solution of immigration reform,” Kica Matos, Director of Immigrant Rights and Racial Justice for the Center for Community Change, indicated to Fox News.

Our Pittsburgh lawyers practice immigration nationwide and offer a free consultation over the phone or in person.

Stay tuned to Elliott & Davis, PC for updates on the changes in immigration law as described by our attorneys

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