Joseph Fedorowsky - Legal Blog

More About Trademarks

Joseph Fedorowsky — Sat, 31 Jul 2010 20:19:26 +0000

Let’s start with an official definition from the the United States Patent and Trademark Office. A trademark is “any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.”

As a subset within the world of intellectual property rights, a trademark is essentially concerned with branding and identity. Accordingly, the purpose behind a trademark from a judicial point of view is to protect consumers from becoming confused over the source of goods or services within competitive markets. Buyers want consistent quality, and trademarks help facilitate that goal.

Federal trademark protection is not automatic. There is a registration process which has a number of benefits, including legal presumption as to ownership, federal jurisdiction to bring an action in federal court and broad notice to the public.

As a federal trademark identifies the source of a product, similarly a federal service mark identifies the source of a service. Other related protections are a collective mark (used by an organization or group) and a certification mark (used to certify quality or accuracy).

Joseph Fedorowsky / Legal Blog

What is a Testamentary Trust?

Joseph Fedorowsky — Tue, 16 Feb 2010 19:20:34 +0000

As distinguished from an inter vivos or living trust, a testamentary trust is effective upon the death of its settlor (the person who sets up the trust) and the will is handled through probate. Every state has its own statutory requirements which must be followed when probating or processing a will.

The most typical or common reason for using a testamentary trust is to conserve a decedent’s assets and to transfer wealth. A testamentary trust requires a trustee who administers the res or trust property which comprises a decedent’s estate. The trustee’s responsibilities include the orderly distribution of various property to beneficiaries named in the will, as set out in the trust.

There are substantial tax consequences when probating a testamentary trust. At the time of the decedent’s death, the assets of the trust are subject to estate and transfer taxes. It is the trustee’s responsibility to sort out these issues, generally by working with probate counsel.

The advantage of a testamentary trust is that the settler, the decedent, has a great deal of control over how the estate is distributed. This may well be a significant issue for the decedent, especially when it comes to setting aside the finances for a loved one’s education or maintenance.

Joseph Fedorowsky / Legal Blog

What is a Living Trust?

Joseph Fedorowsky — Wed, 10 Feb 2010 18:37:53 +0000

There are a number of ways that trusts are classified. One classic approach is to characterize the trust in relation to the Settlor, the person who established the trust. A Settlor is alternatively referred to as a Trustor, Grantor or Donor.

A trust created during the Settlor’s lifetime is called an inter vivos (within the life of) trust. Today, an inter vivos trust is commonly referred to as a living trust. This is not a new legal creature, just a more user friendly term.

One of the many benefits of a living trust is to avoid probate. That is a court supervised legal process which validates a Will and distributes a Settlor’s property at his or her death. In many states, the probate process is statutory with fixed fees. In addition to avoiding the cost and time to probate an estate, a living will also avoids making a public record and is more private as compared to the probate process.

There are additional advantages to setting up a living trust, including possible tax savings and access to institutional trustees to administer the trust. Using professional trustees can be cost effective and fairly safe.

There are many legal professionals who know the ins-and-outs of living trusts, and can help you determine what is best for your particular situation.

Joseph Fedorowsky / Legal Blog

Copyright, trademark or patent?

Joseph Fedorowsky — Tue, 02 Feb 2010 02:50:20 +0000

These are three distinctly different types of intellectual property rights.

Copyright is a creature of law, which allows for the protection of an author’s original work, assuming, of course, it’s in a tangible medium of expression. Copyright protection does not extend to ideas, which are not protected in the law.

A trademark protects the phrases, designs, symbols and or words that identify the source of particular goods or services which distinguish them from others. Trademark protection is available on both the state and federal level.

The third type is a patent which basically protects inventions and discoveries. As you can well imagine, the legal process to identify and protect a patent is complex and fairly expensive.

The United States Copyright Office website (http://www.copyright.gov) is a fantastic resource which has a lot of useful, understandable information.

Joseph Fedorowsky / Legal Blog

The importance of nonprofit organizations

Joseph Fedorowsky — Mon, 25 Jan 2010 16:26:49 +0000

Without nonprofit organizations there would be fewer programs for us to share and learn, places for our children to visit or places for seniors to socialize or get support. For some people, volunteering their services makes them proud and useful; it provides them a chance to get out of the house and into the community. Then there are people who are fighting for a cause and know without the additional funds they wouldn’t be able to continue with needed services in a particular community.

You will often be called at your home asked to donate to nonprofit organizations. Examples of nonprofit organizations would include prevention of cruelty to children or animals, national or international sports and public safety as well as various humanitarian issues. But be sure to check out the bona fides of the organization before making a donation.

Joseph Fedorowsky / Legal Blog

Classification of trusts

Joseph Fedorowsky — Tue, 19 Jan 2010 17:44:36 +0000

There are many different types of trusts and different classification criteria used. A trust may be classified based on how long a period of time it exists; on the relationship of the trust and the settler; on the type of property which is placed into the trust; or, on the way the trust was created.

The classification of a trust is more than a mere organizational convenience. While the classification of a trust does not change its essential character, the stated classification of a trust is invariably a significant factor in its treatment and interpretation. For example, there are serious legal repercussions once a trust is established as an irrevocable trust (a classification based its duration or how long a period of time it exists).

Joseph Fedorowsky / Legal Blog

Trusts – some basics

Joseph Fedorowsky — Fri, 15 Jan 2010 18:19:16 +0000

A trust is one of the oldest and most respected legal agreements. In theory, a trust is fairly simple. Essentially, one person holds and manages assets for the benefit of another.

As in any legal form, certain elements are required. In the United States, five different elements are required: a trustor, trustee, beneficiary, trust property (sometimes referred to as the res) and a trust agreement. The trustor is also referred to as a settlor, grantor or donor.

In other countries, a sixth element may also be required, that of a protector.

These elements are simple enough. The complexity and fun really begins when you must address the who, what, when, where and why’s of setting up, operating and dissolving the trust.

Joseph Fedorowsky / Legal Blog

Copyright protection

Joseph Fedorowsky — Sun, 10 Jan 2010 20:33:23 +0000

A copyright is a type of intellectual property right which is the basis on which your writings may be protected from use by others without your permission. You automatically have a common law copyright to original materials that you pen and publish, but there are advantages to statutory registration.

A copyright legally protects the unique expression of an author. Protection, however, does not extend to mere ideas. There are alternative ways to handle your original and unique ideas and concepts, however, most of which involve marketing dynamics and positioning.

Once you’ve got your seat belt fastened, take a look at the U.S. Copyright Act 17 U.S.C. §§ 101-810, which is Federal legislation enacted by Congress to protect an author’s intellectual property. This area of law is considered by many practitioners as one of the most complex.

Joseph Fedorowsky / Legal Blog

Nonprofits – preferred tax organizations

Joseph Fedorowsky — Thu, 07 Jan 2010 16:41:36 +0000

A top ten misunderstanding: nonprofit corporations are not necessarily nonprofit. The word nonprofit is somewhat of a misnomer. If the operation of any organization (not including the government, of course) results in no profit, it would likely go out of business!

Nonprofits are, essentially, preferred tax organizations, such that certain taxes are not levied on exempt activities. Taxes are levied, however, on non exempt activities (unrelated business income).

While I’m at it, here’s another top ten misunderstanding: not all nonprofits apply for or receive official 501(c)3 status. Many churches fit in this category. There are, however, benefits of being a federally recognized nonprofit . . . more on that later.

Joseph Fedorowsky / Legal Blog

Setting up a nonprofit

Joseph Fedorowsky — Tue, 05 Jan 2010 17:59:13 +0000

A nonprofit is initially set up as an organized group or entity under state law for exempt purposes. Nonprofit organizations include, for example, churches, schools and other types of charitable organizations recognized under law. Funds collected for approved exempt purposes must be properly applied to those exempt purposes. Generally, members are not paid, although it may be perrmissible to reasonably compensate management personnel. When such an organization is first formed it is designated as a nonprofit under state incorporation laws and, if later qualified under federal law, the entity would not be subject to certain federal taxes.

Before moving forward to actually set up a nonprofit organization, it is critically important to plan out the process and understand what state and federal laws and regulations apply and exactly how to comply with those laws and regulations. A nonprofit organization which is not properly structured may later be forced to involuntarily convert to a for-profit corporation, a result which is likely have serious, direct tax ramifications for the organization, its organizers and control group.

Joseph Fedorowsky / Legal Blog