This is one of the most common questions asked by new business owners in California. To give you a headstart in this process, and to assist you in finding the appropriate permitting information for your specific business and specific location, the CalGOLD database at www.calgold.ca.gov/ provides links and contact information that direct you to agencies that administer and issue business permits, licenses and registration requirements from all levels of government. The CalGold listings include descriptions of the requirements, the contact information of the agencies that administer those requirements, and in most cases a direct link to the agencies' Internet web pages. Then, you should only require the assistance of business counsel, if serious licensing issues come about.
Important Proviso: The above material does not constitute legal advice and should not be relied on. It does not create an attorney-client relationship. Each locality has differing laws. A legal matter cannot be satisfactorily resolved without a comprehensive review and analysis of all the unique facts and laws at issue by an able attorney. Your matter may result in a loss of rights if you do not timely retain such an attorney.
Contact: If you would like to discuss this matter further in a more private forum, please feel free to contact me directly at the email address provided through my firm’s website located at http://www.BealBusinessLaw.com.
Wednesday, October 6, 2010
We are a small business, and need a good attorney. How do we find one?
If you are a small business, you should concentrate on small business attorneys, ideally with experience in your specific business, as each business shall have its own set of legal and regulatory circumstances.
Hopefully, you will know one or more trustworthy small business persons in California in similar circumstances who can refer you to an attorney. If not, you must do some homework. On the Internet, you can Google search for an attorney in your area of interest in your area of concern in California , or you can use lawyer searching websites, such as http://www.findlaw.com/.
Then, check at http://members.calbar.ca.gov/search/member.aspx (California State Bar) to determine the disciplinary status and other information for each attorney candidate. Once you have at least 3 qualified candidates, call each of them and explain your situation and listen to their feedback. Your instincts should determine the right attorney candidate from these calls. In close calls, ask to physically interview each without cost.
During your calls to attorney candidates, ask them if they have personal business experience in the area of your business. Ask them if they are a "general counsel" or a litigator, as litigators are many times unavailable, and usually have a different mindset, as discussed more fully below. If they are unfamiliar with the "general counsel" term, they are probably not a good candidate.
General counsel do not usually litigate and are there to advise and service you, when you need it. General counsel aim to keep you out of court. If you are unfortunate enough to need or defend litigation, your general counsel will refer you to the most appropriate litigation attorney or firm and thereafter monitor and manage the costs of litigation, which could otherwise spiral out of control.
Ideally, your general counsel will have sufficient prior litigation experience in order to do the foregoing effectively. Also, he or she will be able to draft contracts with an eye towards staying out of litigation or litigating in a friendly venue. For example, the existence (or lack thereof) of a contact clause providing for a prevailing party’s right to attorney fees can mean the difference between having (or not having) litigation.
In addition, a general counsel, rather than a litigator, is more likely to give you all the advice you want or need and then get out of the way so as not to frustrate your business goals. Business risk is your decision, not a lawyer’s. Once a transaction’s basic terms and conditions have been negotiated, a good general counsel will rapidly draft an industry standard agreement reasonably slanted to protect you in sensitive areas, as simply stated as safely possible, customized to your particular circumstances and risk tolerance levels, oftentimes for a fixed fee.
As Dan Harper, an acknowledged corporate counsel, so ably states, “It is very easy to just say ‘no’ when a controversial issue arises, this is easy because we can’t get into too much trouble by taking the ultra conservative approach. However, after so many ‘nos’, the company will soon go out of business because it won’t be able to sell anything."
"As in-house [general] counsel, we must always remember that we are here to serve the client, it exists to sell goods or services and to make money. It does not exist to provide gainful employment for attorneys. Hence, we must do what we can to further that mission, balance the risks against the benefits, including the mission of the company – making money and thereby keeping all of us employed.” Do Law Firm Lawyers Really Know What It's Like to Be an In-House Lawyer? Dan Harper, Corporate Counsel, 9/10/2010.
Armed with the foregoing, I hope you find the ideal attorney for your business in California.
Important Proviso: The above material does not constitute legal advice and should not be relied on. It does not create an attorney-client relationship. Each locality has differing laws. A legal matter cannot be satisfactorily resolved without a comprehensive review and analysis of all the unique facts and laws at issue by an able attorney. Your matter may result in a loss of rights if you do not timely retain such an attorney.
Contact: If you would like to discuss this matter further in a more private forum, please feel free to contact me directly at the email address provided through my firm’s website located at http://www.BealBusinessLaw.com.
Hopefully, you will know one or more trustworthy small business persons in California in similar circumstances who can refer you to an attorney. If not, you must do some homework. On the Internet, you can Google search for an attorney in your area of interest in your area of concern in California , or you can use lawyer searching websites, such as http://www.findlaw.com/.
Then, check at http://members.calbar.ca.gov/search/member.aspx (California State Bar) to determine the disciplinary status and other information for each attorney candidate. Once you have at least 3 qualified candidates, call each of them and explain your situation and listen to their feedback. Your instincts should determine the right attorney candidate from these calls. In close calls, ask to physically interview each without cost.
During your calls to attorney candidates, ask them if they have personal business experience in the area of your business. Ask them if they are a "general counsel" or a litigator, as litigators are many times unavailable, and usually have a different mindset, as discussed more fully below. If they are unfamiliar with the "general counsel" term, they are probably not a good candidate.
General counsel do not usually litigate and are there to advise and service you, when you need it. General counsel aim to keep you out of court. If you are unfortunate enough to need or defend litigation, your general counsel will refer you to the most appropriate litigation attorney or firm and thereafter monitor and manage the costs of litigation, which could otherwise spiral out of control.
Ideally, your general counsel will have sufficient prior litigation experience in order to do the foregoing effectively. Also, he or she will be able to draft contracts with an eye towards staying out of litigation or litigating in a friendly venue. For example, the existence (or lack thereof) of a contact clause providing for a prevailing party’s right to attorney fees can mean the difference between having (or not having) litigation.
In addition, a general counsel, rather than a litigator, is more likely to give you all the advice you want or need and then get out of the way so as not to frustrate your business goals. Business risk is your decision, not a lawyer’s. Once a transaction’s basic terms and conditions have been negotiated, a good general counsel will rapidly draft an industry standard agreement reasonably slanted to protect you in sensitive areas, as simply stated as safely possible, customized to your particular circumstances and risk tolerance levels, oftentimes for a fixed fee.
As Dan Harper, an acknowledged corporate counsel, so ably states, “It is very easy to just say ‘no’ when a controversial issue arises, this is easy because we can’t get into too much trouble by taking the ultra conservative approach. However, after so many ‘nos’, the company will soon go out of business because it won’t be able to sell anything."
"As in-house [general] counsel, we must always remember that we are here to serve the client, it exists to sell goods or services and to make money. It does not exist to provide gainful employment for attorneys. Hence, we must do what we can to further that mission, balance the risks against the benefits, including the mission of the company – making money and thereby keeping all of us employed.” Do Law Firm Lawyers Really Know What It's Like to Be an In-House Lawyer? Dan Harper, Corporate Counsel, 9/10/2010.
Armed with the foregoing, I hope you find the ideal attorney for your business in California.
Important Proviso: The above material does not constitute legal advice and should not be relied on. It does not create an attorney-client relationship. Each locality has differing laws. A legal matter cannot be satisfactorily resolved without a comprehensive review and analysis of all the unique facts and laws at issue by an able attorney. Your matter may result in a loss of rights if you do not timely retain such an attorney.
Contact: If you would like to discuss this matter further in a more private forum, please feel free to contact me directly at the email address provided through my firm’s website located at http://www.BealBusinessLaw.com.
Patents, Copyrights, Trademarks...Oh My!
There are constant questions about the differences between patents, copyrights, and trademarks. Since I cannot say it better than Michele Schwartz of the law firm of Andrews Kurth LP, I reprint her article from Mondaq (01Oct2010) below:
Protecting Your Intellectual Property
Have you ever had an idea for a great product that would solve a pet peeve, or just make life easier or more pleasant? Many women have made millions from such light bulb moments. Just consider Spanx®, the patented footless pantyhose empire. Perhaps you should take that epiphany and run with it. In addition to writing a business plan, making a prototype and charming investors, one of the most important aspects of commercializing that idea is to protect any intellectual property associated with the product or concept.
So how do you protect your intellectual property once that light bulb goes on? Consider the three main types of intellectual property protection: patents, copyrights and trademarks.
PATENTS
Patents generally protect functional features of inventions, or in the case of design patents, ornamental designs for articles of manufacture. For patents, take dated notes on your idea and maintain confidentiality, not only to protect others from stealing the idea but also to preserve your rights if the invention is patentable. If you decide to share your idea with others, make sure a signed confidentiality agreement, sometimes called a non-disclosure agreement, is in place before revealing the idea. Once an invention is made publicly known, you have one year to apply for patent protection. If you decide to apply for a patent, consider a patent search. An attorney can advise whether a search would be worthwhile or whether it makes more sense to file an application. The patent process is tricky and is best handled by an attorney. It also can be expensive—be prepared to invest several thousand dollars in the process.
COPYRIGHTS
Copyrights protect original works of authorship fixed in the tangible medium of expression, including literary works, visual art (including designs on packaging), music, and pictorial and motion picture works. For example, copyright law protects your artwork, unique designs on fabric, your marketing literature or photographs. Copyrights subsist in a work upon creation and are owned by the author of the work unless the rights are assigned or transferred to another person. Beware if you have an outside ad agency or friend create artwork for your product, including photography. Obtain a written assignment of those rights or the rights will remain with the author, even if you pay for the work. You can obtain a copyright registration from the U.S. Copyright Office which strengthens your rights in a copyrighted work if you have to take legal action against an infringement. Whether your work is registered or not, always include a copyright notice on the work which consists of the symbol ©, the copyright owner's name and the year of publication of the work, meaning the year you first distributed the work to the public by sale or other transfer of ownership.
TRADEMARKS
You will need to name your million-dollar idea. The name, logo, a slogan, even unique product packaging or shape (trade dress), or other manner of identifying your product, can be protected under trademark law. At the outset, search at least the U.S. Trademark Office records to determine if the mark is available. Once you start selling your product, you develop "common law" rights in the mark which are circumscribed to the geographic marketplace in which you sell your branded product. You also can obtain a federal registration for the mark, which provides nationwide rights regardless of whether you have shipped your product to all 50 states. Prior to obtaining registration, utilize a superscript TM symbol to identify the mark or logo as your own. After the mark is registered, you may use the symbol ® to indicate that you own a federal registration for the mark.
Consider all three types of intellectual property protection to protect the ultimate expression of your idea or concept. Though your idea or concept may not be worthy of patent protection, the original artistic design or the funky name or packaging used to market the product may be protected by copyright and trademark law, resulting in a valuable monopoly when consumers demand your product. Intellectual property rights are valuable assets considered by investors and potential buyers. If you have protected your rights, you will be able to maintain exclusivity and increase the value of your business.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Important Proviso: The above material does not constitute legal advice and should not be relied on. It does not create an attorney-client relationship. Each locality has differing laws. A legal matter cannot be satisfactorily resolved without a comprehensive review and analysis of all the unique facts and laws at issue by an able attorney. Your matter may result in a loss of rights if you do not timely retain such an attorney.
Contact: If you would like to discuss this matter further in a more private forum, please feel free to contact me directly at the email address provided through my firm’s website located at http://www.BealBusinessLaw.com.
Protecting Your Intellectual Property
Have you ever had an idea for a great product that would solve a pet peeve, or just make life easier or more pleasant? Many women have made millions from such light bulb moments. Just consider Spanx®, the patented footless pantyhose empire. Perhaps you should take that epiphany and run with it. In addition to writing a business plan, making a prototype and charming investors, one of the most important aspects of commercializing that idea is to protect any intellectual property associated with the product or concept.
So how do you protect your intellectual property once that light bulb goes on? Consider the three main types of intellectual property protection: patents, copyrights and trademarks.
PATENTS
Patents generally protect functional features of inventions, or in the case of design patents, ornamental designs for articles of manufacture. For patents, take dated notes on your idea and maintain confidentiality, not only to protect others from stealing the idea but also to preserve your rights if the invention is patentable. If you decide to share your idea with others, make sure a signed confidentiality agreement, sometimes called a non-disclosure agreement, is in place before revealing the idea. Once an invention is made publicly known, you have one year to apply for patent protection. If you decide to apply for a patent, consider a patent search. An attorney can advise whether a search would be worthwhile or whether it makes more sense to file an application. The patent process is tricky and is best handled by an attorney. It also can be expensive—be prepared to invest several thousand dollars in the process.
COPYRIGHTS
Copyrights protect original works of authorship fixed in the tangible medium of expression, including literary works, visual art (including designs on packaging), music, and pictorial and motion picture works. For example, copyright law protects your artwork, unique designs on fabric, your marketing literature or photographs. Copyrights subsist in a work upon creation and are owned by the author of the work unless the rights are assigned or transferred to another person. Beware if you have an outside ad agency or friend create artwork for your product, including photography. Obtain a written assignment of those rights or the rights will remain with the author, even if you pay for the work. You can obtain a copyright registration from the U.S. Copyright Office which strengthens your rights in a copyrighted work if you have to take legal action against an infringement. Whether your work is registered or not, always include a copyright notice on the work which consists of the symbol ©, the copyright owner's name and the year of publication of the work, meaning the year you first distributed the work to the public by sale or other transfer of ownership.
TRADEMARKS
You will need to name your million-dollar idea. The name, logo, a slogan, even unique product packaging or shape (trade dress), or other manner of identifying your product, can be protected under trademark law. At the outset, search at least the U.S. Trademark Office records to determine if the mark is available. Once you start selling your product, you develop "common law" rights in the mark which are circumscribed to the geographic marketplace in which you sell your branded product. You also can obtain a federal registration for the mark, which provides nationwide rights regardless of whether you have shipped your product to all 50 states. Prior to obtaining registration, utilize a superscript TM symbol to identify the mark or logo as your own. After the mark is registered, you may use the symbol ® to indicate that you own a federal registration for the mark.
Consider all three types of intellectual property protection to protect the ultimate expression of your idea or concept. Though your idea or concept may not be worthy of patent protection, the original artistic design or the funky name or packaging used to market the product may be protected by copyright and trademark law, resulting in a valuable monopoly when consumers demand your product. Intellectual property rights are valuable assets considered by investors and potential buyers. If you have protected your rights, you will be able to maintain exclusivity and increase the value of your business.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Important Proviso: The above material does not constitute legal advice and should not be relied on. It does not create an attorney-client relationship. Each locality has differing laws. A legal matter cannot be satisfactorily resolved without a comprehensive review and analysis of all the unique facts and laws at issue by an able attorney. Your matter may result in a loss of rights if you do not timely retain such an attorney.
Contact: If you would like to discuss this matter further in a more private forum, please feel free to contact me directly at the email address provided through my firm’s website located at http://www.BealBusinessLaw.com.
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