The Trademark Process

wills trusts estate planningRecently, I have had a lot of people ask me about the trademark registration process.  It can be confusing so this blog will explain the process.

The first thing to know is what can be trademarked. Typical things businesses trademark are the name, logo, or a slogan. But you can trademark other things that identify your business, including a specific color you use on all your packaging. For example, Tiffany has trademarked its signature blue color. A trademark protects your brand so when you are considering trademarking something, you should think about what represents your brand. You can trademark more than one thing. Many businesses have a name and a logo. I suggest that both be trademarked. Unfortunately, with the ease of the Internet, businesses do sometime steal logos. I know of an instance where an equine business had their logo stolen by another business halfway across the country. I also know of a yoga business that had to change its business name after they were sent a cease-and-desist letter. Needless to say, that took a lot of time and money. These are just two examples of the importance of protecting your brand and doing it as soon as you start your business.

The trademark process involves three steps: a search, a legal analysis, and then the actual registration. I do a comprehensive search to see if the name, logo, or slogan  you’ve chosen is available. That includes searching for similar names that might cause the USPTO (United States Patent and Trademark Office) to deny the registration. After I complete the search, I give you a legal analysis.

A legal analysis assesses your trademark’s chance of registration. Not every trademark is accepted by the USPTO, so we need to look at the chances to see if you need to change it up a little bit or if it looks like if it has a good chance of being accepted as is. The USPTO considers 13 factors when trying to decide if there is confusion with another mark that is the same or similar, and I address those factors in my legal analysis. You also have to file your trademark under at least one class. Sometimes your trademark needs to be filed under more than one mark, for example, if you are conducting workshops and selling t-shirts. I provide you with information concerning the relevant classes in which your trademark should be filed, and whether it needs to be filed in more than one class. The legal analysis step is important because if your mark is denied by the USPTO, you will receive an Office Action, which an delay the registration of your mark and may even lead to it not be accepted for registration. There’s never a guarantee that the USPTO will approve a given mark, but at least if you get a legal analysis you can avoid situations in which there are clear conflicts that would result in denial.

estate planning trademark copyrightThe third step is the actual registration process, which is entirely electronic. Once your trademark application has been prepared and submitted, it takes about a year to get approval. You can use the trademark in the meantime with ™ after the trademark. The entire process to get approval can take a year.  If the USPTO has a problem with the trademark, it will issue an Office Action. You have a chance to address the issue and then see if the USPTO will issue your trademark. Once your trademark is approved, you may use the registered symbol, ®, after your trademark.

If you would like to protect your brand with a trademark, contact me today so I can get the process started for you!


Immoral or Scandalous Trademarks

Did you know that not every trademark is accepted for registration? For example, the United States Patent and Trademark Office (USPTO) will not register a mark that it considers “immoral” or “scandalous.” Of course, times have changed since that statutory provision took effect more than one hundred years ago. What do we do now about words that might have offended then but have become practically common vernacular now?

Last week, the US Supreme Court agreed to hear oral arguments concerning the issue of the mark FUCT, which designer Mark Brunetti has been trying to register for more than a decade. After being denied the mark, he received a favorable lower court ruling. But both he and the USPTO asked the Supreme Court to consider the case. Oral arguments will most likely take place this spring, and the decision will be issued several months after that. I will follow up on the case when the decision is handed down.

In an interesting side note, the Court generally does not like profanity at oral argument. It is unknown whether counsel for either side will say the name of the mark or simply allude to it during argument.

The Single Tsunami Hits Emergency Medical Care

When Sarah J. was 39 years old, her mother endangered her health by accident. Sarah developed severe, life-threatening blood clots after surgery to repair a broken leg, and was hospitalized. She was in so much pain that she was sedated while receiving intravenous blood thinners. Unable to respond to the doctors caring for her, Sarah was considered legally incapacitated. The hospital notified law enforcement, who conducted a search for her next-of-kin and located Sarah’s mother, Janice, three states away. Janice flew to Sarah’s side and immediately began to make medical decisions on her behalf as the hospital requested. One of the first decisions Janice made was that Sarah must remain hospitalized for at least a week. She told Sarah’s doctor: “Sarah’s house is too hot in the day but drafty at night, and it’s so filthy I need to sterilize everything before I can take her there. You must tell her insurance company she has to stay in the hospital.”

In fact, Sarah loved her little house that was sunny and bright, not “hot.” She loved the big old-fashioned windows that let in the evening breezes her mother considered “drafty.” And the “filth” her mother perceived was merely the normal scattering of cat toys and dog bones associated with beloved pets who brightened every moment of Sarah’s life and were her family. She’d had many health problems as a child and had been hospitalized several times. Her home environment had been sterile and unloving. When she’d first come to the hospital with blood clots, she’d thought about how essential it was to get home again soon. She knew her precious animal companions and beloved little home would help her recover faster, and that even a few days in a hospital would trigger depression and endanger her healing. But now she was unable to speak for herself, and her mother was recreating Sarah’s miserable childhood experience. The doctors had told her mother that Sarah had only a 50-50 chance of survival, which scared her into behaviors that actually tipped the scales against Sarah’s chance of successful recovery and further endangered, rather than protected, her life.

Sarah loved her mother. But there was a reason she had taken a job a thousand miles away from her childhood home. Now, helpless, she was back in a situation she’d have done anything possible to get out of, had she not been incapacitated.

Fortunately for Sarah, her doctor had treated her for several years. She had told him about her childhood health problems and the lengthy hospital stays that had caused her so many negative emotions, and she’d told him how important her little home, her friends, and her pets were to her well-being. So as soon her pain medications were decreased enough that she could respond, he called her on the phone. He knew her mother would be standing in Sarah’s hospital room and that he had to bypass her to find out what Sarah really wanted. He told her what her mother had instructed him to do, and then said he wondered how she felt about it now that she was able to think for herself. Sarah didn’t have to think even a moment. “I want to go home,” she said firmly. “Dizzy or in a wheelchair or with one of my friends to stay with me for a few days. When can I do that? How soon can I leave?” He agreed to discharge her the next afternoon, as long as she could find a friend to stay with her for a time. Meanwhile, they agreed, Janice could help out. As they talked, Sarah was able to see that Janice could not control what happened as long as Sarah could speak for herself.

When people are laid up after an accident or serious illness, it’s often hard for them to speak up for themselves as firmly as they wish they could. So it’s easy for their family members to recreate old patterns of relationship that may be unpleasant or even unhealthy, which slows recovery. But if a single or unmarried person is incapacitated and can’t respond to medical personnel caring for them, next-of-kin must be contacted. So it’s usually a parent who winds up at the person’s bedside, getting test results, talking to doctors, and making medical decisions for them. Even if a Significant Other or good friend knows far more about what you want if you are incapacitated during a medical emergency, they have no legal right or authority to even talk to your doctor.

Unless you have prepared in advance.

massachusetts attorney poa power of attorney health care proxy advance directive living will conservatorship guardianshipYou have medical insurance to cover your bills if you have a medical emergency. You need Incapacity Documents to protect your health, your well-being, and even your home in the same situation. They’re not expensive, but they have to be properly executed and notarized to protect you. And you cannot rely solely on the medical community to provide them, though the crisis of not having such papers is so serious that hospitals are experimenting with ways to provide at least some of them to patients on their own.

Without Incapacity Documents, you literally cannot choose who makes decisions about what tests, treatments, procedures, and even surgeries you have if a ski accident or car wreck makes you unable to speak for yourself. Hospitals can’t make these decisions on their own, so if you don’t have Incapacity Documents and they cannot find your next of kin, the court has to appoint a legal guardian to make decisions for you while you’re incapacitated. It’s a terrible situation if your life is hanging in the balance. But that’s not the only problem. Without Incapacity Documents, you could go home after a lengthy recovery to discover that “home” has fallen apart just when you needed it most. This simple packet of documents protects your home too, as well as any pets or children who depend on you.

So what’s in a package of Incapacity Documents? And how do they protect you?

  • Health Care Proxy. This document appoints one or two people that you choose, who will make health care decisions for you if you are temporarily incapacitated.
    • Some hospitals and physicians now offer Health Care Proxy forms or automated systems, but these forms are filed only with the specific hospital system that offers them. That means if you are unconscious and taken by ambulance to a hospital in a different system, or if you have an accident while out of town on work or vacation, your prepared Health Care Proxy will not show up when your name is put into the admitting hospital’s system. In that case, law enforcement will be forced back to the default position of finding your next of kin, who will be given that authority. Your plans will be invalidated by accident.
    • Whether or not you file a Health Care Proxy with a hospital or doctor’s office, it’s essential to download an Emergency Contact Card and fill it out with the name and contact information for your Health Care Proxy. Put the card immediately behind your drivers’ license, in your wallet, because law enforcement officials will discover it in that location and respond to the information it provides. It’s a good idea to make sure your attorney has a copy of all your Incapacity Documents on file, and to put that person’s name and contact information on the ECC as well. Then if law enforcement cannot reach your Proxy, they can get a copy of your Health Care Proxy and other documents sent to the hospital right away.
    • Think carefully about who you want to choose as your Health Care Proxy, and talk to the person about what sorts of things you’d expect from them. Whatever you do, don’t simply put someone’s name and phone number on a Proxy form without talking to them first, and don’t let anyone talk you into doing that to “get something done quickly.” Get it done, but do it right. You will be counting on your Health Care Proxy in a critical emergency that might threaten your very life. An attorney has the time and knowledge to advise you as you think through your own situation so you can plan.
    • Don’t put this off because you figure Sarah’s problem is not that common. It is. Unmarried people make up the fastest-growing part of the U.S. population. According to the US Census Bureau, nearly 3 out of 10 American households now consist of ONE person — a person who is not married and who is also living alone rather than with a roommate, significant other, or child. Almost half of all Americans have never been married, are divorced, or are widowed, as compared to 1960 when nearly 3/4ths of Americans were married and had a spouse to serve as their next of kin in a medical emergency. Further, people under 40 are intentionally choosing to defer and delay marriage. As a result, in a number of states, 65%-75% of all people between the ages of 18 and 39 are never-married singles. Every one of these people faces a potential crisis if incapacitated in a medical emergency, and very few of them have prepared the Incapacity Documents that would protect them then. As more people choose to be single, to live far from family, to travel extensively, and to be physically active — for so many good reasons — this problem is becoming a national crisis. Please share the word with other singles you know, about how they can protect themselves in a medical emergency. Insurance alone is not enough.
  • HIPAA. A HIPAA release is a signed form that gives someone permission to access your medical records. You have probably seen and signed one of these forms in your doctor’s office so it has permission to share information about you with hospitals and testing labs. It’s essential that the person you designate as your Health Care Proxy signs a HIPAA release so the doctors who are treating you can give that person all the information they need to make sound decisions on your behalf.
  • Advance Directive or Living Will. The name of this document depends on the state in which you reside. In Massachusetts, where I practice, it is called an Advance Directive. Ideally, we all hope your Health Care Proxy never needs to refer to your Advance Directive when talking to your doctors, because this is the document that stipulates what sorts of life-saving treatments you may or may not want to have. For instance, some people feel very strongly that they would not want to live many years in a vegetative state, without any hope of recovery. Others feel just as strongly that they want every chance at any miraculous future recovery they might have. People sometimes confuse this document with the Health Care Proxy document itself. But while your Proxy may be the person who informs medical personnel about the contents of your Advance Directive, it is the AD itself that spells out your wishes in writing so that everyone knows what you do or do not want done. Most hospitals believe they are ethically required to do everything they can to prolong and preserve your life, by any means necessary, unless you have an AD to direct the Proxy and hospital concerning your end-of-life wishes. If preparing such a document disturbs you, you can do it at a later date. Don’t skip getting your other Incapacity Documents just to avoid thinking about The Big “What If”. At the same time, please remember that very few incapacitated patients have this document when they unexpectedly need one. Hospitals are increasingly desperate to find ways to get the public to deal with what’s becoming a growing crisis of having to make crucial decisions for patients who cannot say what they want done and never wrote it down while they had the chance.
  • Durable Power of Attorney, or POA. Whereas all the other Incapacity Documents protect your health and well-being, the POA protects your home in your absence, while you are incapacitated and recovering. Even if your next of kin comes to your bedside to make your medical decisions, they cannot legally access your bank account, your smart phone, or the accounts for bills you have to pay. Unless this person has the financial resources to pay your bills out of his or her own pocket for a while, and somehow finds a way to access your bills to pay them for you (which is usually not possible), your rent or mortgage, utilities, and other bills will not be paid while you are incapacitated. If you have children, pets, or large animals such as a horse, their care cannot be covered from your accounts either. (If you have children, be sure to talk to your attorney about them when you set up a POA. Depending on your custody arrangements, you may need to also draw up separate papers with a Family Law Attorney to provide for your children’s care while you are incapacitated.) Hospitals and doctor’s offices cannot draft a Power of Attorney, nor can they advise you about how to select the person you list in the POA as your representative and make sure you’ve provided them with all the information — account numbers and passwords, for instance — that they’ll need to protect your home if you are incapacitated by a medical emergency. In Sarah’s case, had her mother had her way, Sarah would have returned home a week after being admitted to the hospital only to discover that her animals had suffered without care in her absence, and that her mortgage was five days overdue. A POA covers your home front while you need help, and makes sure there’s still a home to go back to with the lights on and the animals happy when the wonderful day comes that you can finally “go home.”

business law employees contractsSarah’s story had a happy ending. She was able to go home, her mother stayed with her for two more days, and then several friends came to help her out for a while. She recovered fully. But the experience left her feeling vulnerable. She had always assumed that in an emergency, someone would call her place of employment and that her best friend there would come to the hospital and talk to doctors for her. She hadn’t realized that’s not how the system works. Because even her doctor didn’t explain Incapacity Documents to her, Sarah didn’t discover the simple things she could do to protect herself until we recently became friends. She asked me over coffee one day to tell her what I do, and when I did she started to cry. Then her whole story came out. “How is it no one explains this to people?” she asked. “You’re telling me far more than half the population under 40 is single these days, and that all of those people face the same thing I did. Yet no one talks about Incapacity Documents. I can get these documents now, but I wish people could learn from what happened to me so they know to get them too!”

So I wrote out her story to share, and I promised to ask you to share it as well. In turn, she asked me to tell you what I do to help people avoid being caught in the situation she was. It is this:

I can draft a whole package of Incapacity Documents for you for several hundred dollars. One of the things I provide is personal advice about how to select your Health Care Proxy and Power of Attorney representatives, and how to make sure each person understands the responsibilities you’re giving them and what you want them to do. I also contact you each year to ask if there are any changes you need to make to these documents so they stay up to date. For instance, if you have broken up with the Significant Other who’s listed as your Health Care Proxy, you should probably change that paperwork. In most cases, the changes can be made for just a nominal cost.

Protect yourself. Do it today. And spread the word to all the single people you know.




From Hospital to Nursing Home and Back

advance directive health care proxy long term care power of attorney medicaid medicareNo one wants to go to a nursing home. But it’s unavoidable when patients get caught between hospital policies that require earlier and earlier discharge on the one hand, and the inability of family members to care for elderly or otherwise fragile patients who are being released from hospital care too soon for home care to suffice. So it’s particularly common for older patients who’ve had surgery or suffered serious illness to be sent from the hospital to a nursing home to recover. According to a June 13 NPR “Shots” Health News report by Jordan Rau, “Medicare Takes Aim At Boomerang Hospitalizations Of Nursing Home Patients,” this practice is creating a growing problem for patients who don’t receive adequate care at the nursing home and wind up back in the hospital within days, sometimes dying as a result of complications that could have been avoided. The problem isn’t just that hospitals push patients out their doors earlier, but that “many [nursing] homes, with their sometimes-skeletal medical staffing, often fail to handle post-hospital complications — or create new problems by not heeding or receiving accurate hospital and physician instructions.” The variable that makes a difference in the outcome is the quality of the nursing home to which the patient is sent. “Out of the nation’s 15,630 nursing homes, one-fifth send 25 percent or more of their patients back to the hospital, according to a Kaiser Health News analysis of data on Medicare’s Nursing Home Compare website. On the other end of the spectrum, the fifth of homes with the lowest readmission rates return fewer than 17 percent of residents to the hospital.”

power of attorney long term care planning medicaid medicare nursing home While the problem reported at NPR happens most frequently to Medicare patients, you can take steps now, while you are healthy – no matter what type of medical coverage you have — to protect yourself from the risks of post-hospitalization nursing home care. You can look into the quality of rehab centers or nursing homes in your area, and have  an attorney write a health care proxy for you in which you stipulate which of them you wish to use if you ever need one. This would be particularly important in the event that you were discharged from the hospital while still unable to articulate your preferences at the time. You can also use estate planning documents to establish a fund that sets aside money that can be used to provide you with the best nursing home care possible in the event you need it, including paying for a higher-quality care facility. These are part of the services available to people who establish will and/or trust documents, which take care of planning far more than which niece or nephew gets your cherished marble chess set or your grandmother’s silverware.

Contact me today for more information on how you can protect your own health and well-being by planning your will and estate documents now.

Earth Day Estate Planning, Part 2

estate planning wills trusts environmentWelcome to Part 2 of my series concerning estate planning with the Earth in mind. You are probably familiar with  land development in your area that is happening at a breakneck pace. We all know of favorite fields plowed under for a new housing development or shopping center. One way to help the natural world is to leave your land in a conservation restriction as a part of your estate planning.

When you use a will or trust, you are leaving your assets, including your property, to individuals or organizations. When you draft your estate plan, you can include a conservation restriction – called a conservation easement in other states – to protect your property from development. A conservation restriction is a legal document between a property owner and a conservation organization. That organization agrees to monitor the property and enforce the restriction, even if the property changes hands. The property owner can place a restriction that prohibits any development or can state exactly what kind of development is allowed. For example, a property owner could place a conservation restriction on a 50-acre farm and allow one more home to be built on the property but no other buildings. Conservation restrictions can be tailored to meet the property owner’s wishes, and it’s better if they explicitly list what the owner allows and what the owner prohibits to be done to the property. It is considered a deed restriction and goes with the deed to the land, meaning it applies to anyone who purchases the land.

If you want to place a conservation restriction on your property in your will or trust, it is a good idea to check with some conservation organizations to make sure they will accept your property into their land trust program. If you find one or several that will do so, you can even include their names – or name the one you prefer – in your will or trust so the representative or trustee knows who to contact when the time comes to place the restriction. You can even attach a draft of the conservation restriction to your will or trust so that your wishes are clearly articulated.

While it is best to think of these issues before death, a representative or trustee can place a conservation restriction on property after the death of the property owner. It needs to be done quickly, before the federal estate tax is filed, which is usually nine months after death.

Contact me if you want to learn more about conservation restrictions and your estate plan.