Incorporate. Incorporation.

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Incorporate. Incorporation.

Are you starting a new business, and while you’re sure you want to incorporate, you’re not sure where? Incorporation and the state where you choose to incorporate is an important business judgment decision, which should not be made lightly.  Recently I had a client tell me he wanted to incorporate his new business and he wanted to do it in Delaware. So of course, my first question to him was, “Why Delaware?” He replied, “Because someone told it was the best place to incorporate.”  Delaware is a great place to incorporate your new business, but incorporation in Delaware is not for everyone.

Here are a few things to take into account:

  1. The greatest advantage of incorporating in Delaware is its exhaustive, well-seasoned case law library.
  2. It has its own Court of Chancery, which primarily deals with corporate law issues.
  3. Another advantage to incorporating in Delaware is that it is a business-friendly state.
  4. Its laws often tend to favor protecting corporate interests, rather than shareholder interests.

But wait, there’s more you should know …

  1. That being said, the initial start up costs and the cost to maintain a Delaware business, if you are doing business in another state can be costly.
  2. Let’s say you reside and do business in California, not only will you have to pay Delaware taxes, but you will also have to pay taxes in California as a foreign business.
  3. You are required to have a registered agent with a physical address in Delaware.  Companies perform this retainer service or a fee.
  4. In Delaware, if your new company will issue stock, you must pay a fee calculated on the number of authorized shares.
  5. There are also shipping and handling costs, as well as the cost of certified copies.

The bottom line is you will have to pay some of these fees regardless of where you incorporate. But, if you are incorporated in one state and do business in another, your  costs will double. This is not to deter you from incorporating in Delaware, it is just to make sure you are well informed before making that all important decision.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours!  Share your thoughts about this case. Join the conversation on my legal Facebook Fan Page, legal Twitter Page, Google+, or in one of my LinkedIn groups.

 

Supreme Court. Social Media. Freedom of Speech. Facebook.

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Supreme Court. Social Media. Freedom of Speech. Facebook.

Freedom of Speech. Facebook.

Freedom of Speech. Facebook.

Since its inception, social media networking services such as Facebook and Twitter offer us an outlet to share our thoughts, concerns, opinions, and everyday lives. But what happens when we cross the line on the Internet and make threats against another individual? Is this simply our freedom of speech or should this be considered a criminal act? Well this is exactly what the Supreme Court plans to rule over in the case of Elonis v. United States.

Supreme Court. Elonis v. United States.

Following the breakup of his marriage in 2010, Anthony Elonis, a 31-year-old former theme park employee from Pennsylvania, started posting violent statements on his Facebook page regarding his ex-wife. One of Mr. Elonis’ posts said, “If I only knew then what I know now, I would have smothered [you] with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder.” According to a Los Angeles Times article, when the FBI got involved, Elonis posted that he felt as though he wanted to kill the agent who questioned him as well as to shoot a kindergarten class. Elonis was convicted by a jury for posting such threatening messages and a judge upheld the verdict. Mr. Elonis’ attorney, John Elwood, is appealing citing that his posts are similar to songs such as “Kim” and “Kill You” by rapper Eminem where the artist sings about killing his then-wife and mother of his children.  Ironically, Eminem is now purported to be terrified that his daughter is dating a guy who was raised on Eminem’s music and worships the rapper. Freedom of Speech–how much is too much especially on social media venues?

Furthermore, advocates for freedom of speech are quite concerned about giving the government too much power where people can be punished for rants and offensive language via the Internet. However, Deputy Solicitor Gen. Michael Dreeben said “You’re accountable for the consequences” of your words, and went on to say that it is a federal crime to transmit “any threat to injure” another person over the Internet or telephone. A decision is expected in January or February, so stay tuned.

Facebook.

Facebook has a battery of lawyers to defend its every action.  Yet, in an age where domestic violence is taking center stage, this is definitely a case to watch.  Plus, it’s likely to have a large impact on how and what people can or cannot say on the Internet, so stay tuned.

I’m Francine Ward, Attorney, Speaker, and Author sharing my opinion. Share your thoughts about this case. Join the conversation on my legal Facebook Fan Page, legal Twitter Page, or in one of my LinkedIn groups.

 

Tips. Tipping. Customer service.

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Tips. Tipping. Customer service.

Customer Service. Tips.

Customer Service. Tips.

Tipping, at one time, was an act of gratitude for a job well done, of going beyond the call of duty.  You got tips when you did a good job.  Today, people expect to be tipped simply because they breathe. Recently, I had 3 encounters with service people…one that was extraordinary and two that were even less than mediocre. The art of customer service is a skill that way too often is lacking.

Let me begin with the excellent server provider because the experience totally shocked me. I travel a lot. Sometimes I rent cars; sometimes I take taxis; sometimes when staying in Manhattan I take buses, and on occasion, depending on the location and time of day, I take a shuttle to/from the airport.

Customer Service.

I was in Anaheim for business and arrived at 5pm, in the middle of rush hour. Because of the heavy Southern California traffic at that time of day, I chose not to rent a car, and instead, I secured a Super Shuttle. Quite honestly, the service is most often poor and the driving worse, but sometimes it is the most convenient and best value depending on the location and time of day. Right from the beginning the shuttle driver was nice and friendly, but he took it a step further. This man entertained and engaged the passengers with a game of trivia-type jokes. He was not intrusive, just friendly, and before I knew it, I was at my hotel. I don’t recall ever tipping a shuttle driver as much as I tipped him. I did it because he gave a little extra and provided excellent customer service.

My next encounter this week involved a NY taxi driver who, while not rude or disrespectful, did nothing that I felt warranted a tip. He was unwilling to assist me with my bags, drove as if he was in a race for his life (even though I asked that he slow down), and said not even a hello during the entire trip. So when I arrived at my destination I paid his stated fee and got out of the cab. As I walked away, I heard him shout out in his native tongue, “no tip?” I thought of how brazen it was of him to even remotely think that he deserved a tip.

My third encounter this week was at a Sausalito restaurant that many folks rave about. All I can say is they will not see me again. The restaurant was on the water and the doors were all open on this 55 degree windy and foggy afternoon. The food was not extraordinary, it was okay, but what stood out was the poor service. First we called for a server twice in 15-minutes. During our meal no one checked on us to see if everything was okay, or even to ask if we wanted anything else. When I did request a second beverage it took 20-minutes, and that was only after I got up and asked the hostess for help. Had it not been for the fact that we had one check among us, I would certainly not left a tip. Our server truly got more than he deserved, although I would bet he complained to his coworkers that he only got a 17 percent tip. Had it been strictly up to me, he would have gotten no more than perhaps, 50 cents.

In the Business of Serving.

As a lawyer, I go out of my way to give my clients everything they expect—and then some! I spend extra time reviewing agreements to make sure they know what they are agreeing to; I hold their hand and walk them through the process of preparing specimens for their trademark applications to ensure that their Statement of Use is accepted; I answer every question they pose and help them identify questions they never thought to ask. I go that extra mile because I believe good service is important.

We live in such an entitled society where everyone wants something for nothing. Gone are the days when tips were earned for doing a great job, for going the extra mile. Even establishments like Starbucks, for example, have a tip jar by the register, even though it often takes them forever to serve one customer. I truly am old school in that I believe, as John Houseman once said, “you earn it.”

What are your thoughts about tipping and about doing a good job in general? Until next time, I’m Attorney Francine Ward. Find me on my Facebook Law Fan Page, Twitter Law Page, Google+, and LinkedIn.

Terms. YouTube.

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 Terms and Conditions.  Terms of Use.

Terms. YouTube.

Terms. YouTube.

Read it and understand it BEFORE you sign it, OR pay the price. Reading Terms and Conditions or Terms of Use or Terms of Service is quickly becoming the foundation for many social media related lawsuits.  I am constantly blogging about this topic, speaking about it in my lectures, and reiterating its importance to my clients over and over again. Yet, folks still ignore the warning—until it’s too late. They simply do NOT want to read the Terms of Service, Terms of Use, or Terms and Conditions before accepting them (collectively known as the “Terms”).

Terms.

There are a ton of reasons why people choose not to read the Terms before they sign those documents.  Among the many reasons are:

  1. The Terms are too long;
  2. The Terms are too complicated;
  3. I trust the person/company that issued them;
  4. I feel I have no choice but to accept the Terms.

If YOUR reason for not reading the Terms, before you sign them, is one of the above (and BTW, clicking “I Accept” is signing), then a recent decision handed down by the United States District Court for the District of Columbia may serve as a strong warning.

Song Fi vs. YouTube and Google. Arbitration.

The plaintiff sued YouTube in Washington, DC, despite the fact that YouTube’s Terms state all disputes must be resolved in the Northern District of California through arbitration. The plaintiff, who lives in DC, understandably did not want to fly from DC to California every week to litigate the claim. Plus, the plaintiff obviously felt he had a better chance of winning in a lawsuit, rather than in an arbitration hearing. So, he attacked YouTube’s Terms by stating they were unconscionable. He further stated that he “didn’t read them anyway,” because he felt he had no choice. The plaintiff argued that YouTube has “overwhelming power in its chosen market” and that the plaintiff as a “small, independent music company,” had no choice but to accept YouTube’s Terms. He continued saying, he “Lacked any kind of meaningful choice as to whether to upload their video to the YouTube website and agree to the Terms set forth by YouTube.”

For every person who wants the right to make adult choices, yet then chooses to see him or herself as a victim—when convenient, LISTEN UP!

Terms. Contracts.

The court came back and said, Terms of Use are contracts and there was nothing in YouTube’s Terms that was unfair or unreasonable.  The court further said, “Though YouTube is undoubtedly a popular video-sharing website, it is not the case that Plaintiffs lacked any kind of meaningful choice as to whether to upload their video to the YouTube website and agree to the conditions set forth by YouTube. Plaintiffs could have publicized the LuvYa video by putting it on various other file-sharing websites or on an independent website.” The court further sent the case to California.

So what is the takeaway?

  1. Read every document before you sign it, because whether or not you read it, YOU WILL BE HELD LIABLE for it.
  2. If you object to the terms of the agreement, DON’T SIGN IT—you have a choice, albeit not the choice you like.
  3. If you sign a document that has a jurisdiction provision that says all disputes must be resolved in a certain state, BELIEVE IT. Sometimes there are ways to get out of that, but you will have to pay a lawyer to fight it and you may still lose.
  4. If you sign a document that says all disputes must be resolved by arbitration, BELIEVE IT. Again there are exceptions, but you will likely have to pay a ton of money to prove you are right.
  5. As long as the Terms of Use are clear, visible, and can be understood, most courts will uphold them.
  6. YOU ALWAYS HAVE A CHOICE.

Until next time, I’m Attorney Francine Ward. Find me on my Facebook Law Fan Page, Twitter Law Page, Google+, and LinkedIn.

Trademark Registration. USPTO. Trademark.

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Trademark Registration. USPTO. Trademark.

Just off the press! The United States Patent &Trademark Office (USPTO) has announced that the USPTO will start sending email reminders to trademark registrants who have “live” registrations, as of January 2015. There are some caveats, among them is that USPTO must have a valid email address on file and the trademark registration must be live, not a dead trademark registration. Email reminders will also be sent to registrants regarding the filing of the Declaration of Continued Use , which is due between years 5-6 after trademark registration.

Trademark Registrants.

In order to ensure that trademark registrants receive email reminders, registration owners should add the USPTO to its “safe senders list.” If trademark registrants have done so in the past, they may want to reconfirm that their email server will accept email from the USPTO and will not treat it as junk mail or spam. It is important to know that despite this effort on the part of the USPTO to make it easier for trademark registrants not to lose their valuable trademarks, it is still the responsibility of the trademark registrant to be on top of any statutory obligations. Any failure by the USPTO to provide the courtesy email reminders or any non-receipt of such reminders will not excuse a registration owner who fails to meet its statutory obligations.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. What do you think? Law Facebook Fan Page, Law Twitter Feed, Google+, LinkedIn.