Jacksonville 904 June/July 2016 : Page 38

The story continues, as recounted by attorney Crystal Broughan of Marks Gray. The pediatric dentist came to us for advice on how to stop the other dental practitioner from using her logo and the name 'Safari of Smiles.' We discovered that the dental practitioner had filed a trademark application with the USPTO for the name in December 2005 and obtained a certificate of registration in July 2007. The USPTO records showed that a Statement of Use claiming to first use the mark Safari of Smiles, was filed on May 1, 2006. The pediatric dentist had docu-mented evidence that she first started using the name 'Safari of Smiles' and the logo in 2000. She had priority in the marketplace. So we filed two trademark applications with the USPTO, one for the word mark, 'Safari of Smiles,' and one for the logo on August 12, 2011. We then filed a Petition for Cancellation of the trademark registration obtained only four years earlier. The dental practitioner hired a Washington, D.C. lawyer to fight for his registration but our client’s doc-umented use of the trademark from 2000 clearly established her prior-ity of use in the market. By Febru-ary 6, 2012, his lawyer had filed a Voluntary Cancellation of the Reg-istration. The USPTO then allowed the pediatric dentist’s logo and name 'Safari of Smiles' to register and issued Certificates of Registra-tion. There were clear lessons for both dentists in this story. The pedi-atric dentist should have registered her trademarks with the State of Florida from the very beginning. Later as she developed her prac-tice and started attracting patients from outside Florida, she should have filed a trademark application with the USPTO. The dental practitioner should have conducted a complete trade-mark search before he started using 'Safari of Smiles.' He would have discovered Dr. A’s website and use of the name. Both doctors incurred significant expenses that could have been prevented. Stories like these, as told by Broughan, are not uncommon. Starting a company is more than printing some business cards and putting up a sign. There’s a lot that goes into doing it right, in-cluding something that many would-be business owners hope they’ll never need: protecting themselves and their new ven-tures from lawsuits. “Asset protection is the method we use to insulate individuals from any potential liability,” says Jill Bechtold, an attorney and share-holder at Marks Gray. “It’s always done early in its best form. If you’re trying to protect yourself after a litigation, there’s going to be a lot of scrutiny. Your best prac-tice is to protect yourself early and thoroughly.” If no asset protection plan is in place, the company’s owner can be held liable for lawsuits and claims against the business—for example, if someone falls on com-pany property or an employee is hurt on the job. With a good plan in place, the company’s sharehold-ers’ and owners’ livelihoods will be insulated from attack. ˾ starting RIGHT A company’s legal formation is one of the most important decisions you’ll make in the early stages of starting a business. It affects how a com-pany’s management is structured, how much it will pay in taxes and how much personal liability the owners will have for the actions of the business. A sole proprietorship has just one owner, and this formation may look attractive because it’s relatively simple—setting it up takes a bare minimum of legal work. But under the law, that owner has unlimited personal lia-bility for business debts and claims. This is also true under a few other structures, like general partnerships, in which every part-ner can be held liable. If your business is doing dangerous work, like repairing power lines or training skydivers—and even if it’s not!—you don’t want to be 38 : June 2016 personally responsible for any mishaps. “Most businesses nowadays are going to be in an LLC format or an incorporated format. Most people don’t do partnerships any-more. One of the most preferred is an ’S’ corporation,” Bechtold says. Under an “S” corp, or subchar-tered corporation, shareholders have limited personal liability for the corporation’s debts and claims. A limited liability com-pany, or LLC, also allows for lim-ited personal liability. Anyone making claims against a business set up in this format will have dif-ficulty holding the shareholders responsible. “If the company is being sued, only the company is liable,” Bechtold explains. Your house, your car, your personal bank account—they can’t be touched. Choosing the legal formation may be trickier than you think,

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