Given that intellectual property (IP) can make up a significant portion—sometimes up to 90%—of the total value of today’s companies, it’s essential that you do everything you can to protect these intangible assets. And one of the first IP elements you’ll want to protect are your company’s brand name and logo.

To safeguard these brand assets, you’ll need to secure trademarks. A trademark can protect words, slogans, symbols, and other distinguishing features of your brand by allowing you to prohibit other businesses from using the same—or highly similar—branding as yours.

Yet not all trademarks offer equal protection. For example, you can gain what’s known as “common-law” trademark rights for free simply by being the first business to use your particular brand name in commerce. However, as you’ll see below, common law trademark rights are extremely limited and will prove highly inadequate for most companies.

For maximum protection, you should register your trademark with the U.S. Patent and Trademark Office (USPTO). Although registering with the USPTO typically costs around $300 per mark, doing so provides you with numerous advantages compared with common law marks. Some of the leading advantages of registering your trademark include:

01 | NOTICE OF OWNERSHIP

Registration of your trademark provides your company with official documentation and public notice that you are the valid owner of the mark and have the exclusive right to use it across the entire U.S. This is in contrast to a common law trademark, which requires a company to actually use the mark in business to gain ownership, and that ownership is limited to the local area where the business is located.

02 | PREVENTS OTHERS FROM USING A SIMILAR TRADEMARK

Once your trademark is registered, it’s listed in the USPTO’s database, and no one else can register a confusingly similar mark in connection with similar goods and services. To this end, the federal government is essentially assisting you enforce your rights and preventing infringement before it can start, without any additional action needed on your part.

03 | PROTECTS YOU FROM INFRINGEMENT

Because the USPTO will not allow you to register a similar trademark to any others that are registered, this also prevents you from accidentally infringing on another company’s mark. This can not only save you from a financially ruinous lawsuit down the road, but also prevent you from having to completely reinvent your brand from scratch if your mark is too similar to one that’s already registered.

04 | GIVES YOU THE RIGHT TO SUE IN FEDERAL COURT

Having a registered trademark gives you the right to sue for infringement in federal court, where you will receive the presumption of being the valid owner of the mark. The presumption of ownership shifts the burden of proof to the defendant who might try to claim they have common law trademark rights as a defense. Under this burden, the defendant must prove that he/she was first to use the mark and their use has been continuous, which can be extremely difficult, requiring extensive documentation, and/or witnesses.

05 | OFFERS ADDITIONAL LEGAL REMEDIES

Registering your trademark can increase the number of remedies available to you if you sue for infringement. Depending on the circumstances, you can go after the defendant’s profits, seek statutory and punitive damages, as well as collect attorney’s fees and court costs. Such remedies typically aren’t available with only common law rights.

06 | ALLOWS YOU TO PUBLICLY DISPLAY YOUR REGISTRATION

Registration grants you the right to use the ® symbol with your trademark branding. Unregistered marks are only allowed to use the ™ symbol. This designation gives your company more credibility and prestige, while letting competitors know you’re serious about protecting for IP.

07 | ENABLES YOU TO APPLY FOR TRADEMARK REGISTRATION IN FOREIGN MARKETS

While federal trademark registration is usually not enforceable outside of US borders, registering does provide you with a basis for applying for trademarks in many other countries. Having trademarks in other countries can be especially important, with the rapid globalization of the marketplace and widespread use of the internet.

08 | EMPOWERS ENFORCEMENT OF TRADEMARK BY U.S. CUSTOMS OFFICIALS

Federal registration allows you to record your trademark with U.S. Customs and Border Protection. This empowers Customs officials to block the importation of infringing or counterfeit goods and allows you to bring a counterfeiting case to federal court.

ENFORCING YOUR RIGHTS

It’s important to keep in mind that outside of prohibiting others from registering a confusingly similar trademark, the USPTO will not enforce your trademark rights or bring any legal action against an infringer—that’s up to you. That said, if you discover potential infringement, we can help you enforce your ownership rights, and do everything we can to maintain your trademark rights without a lawsuit. Indeed, we often write letters that not only resolve the conflict, but also inspire the other party to join you in an ongoing joint venture that can benefit both parties.

While federally registering a trademark is a fairly simple process—and one you could do on your own—it’s typically a good idea to just let us handle it for you, so you can stay focused on the business of your business, while we handle the underlying structures that support you to grow your business. As your Family Business Lawyer®, we can not only help you secure the proper trademarks, but we can also work with you to develop a comprehensive strategy to protect all of your other intellectual property, as well as support the ongoing strategy of building a great business and a great brand.

This article is a service of Sahmra A Stevenson Family Business Lawyer®. We offer a complete spectrum of legal services for businesses and can help you make the wisest choices on how to deal with your business throughout life and in the event of your death. We also offer a LIFT Start-Up Session™ or a LIFT Audit for an ongoing business, which includes a review of all the legal, financial, and tax systems you need for your business. Call us today to schedule.

Using independent contractors (ICs) can give your company an edge in today’s thriving gig economy, but if you are not careful, contractors can also be a serious liability. In fact, working with ICs comes with a number of unique legal and financial risks that can be potentially ruinous to your business if not handled properly.

Beyond getting sued or hit with hefty fines for misclassifying an employee as a contractor, you must also be careful to properly secure ownership of anything an IC creates for you. This is particularly true when it comes to your intellectual property (IP).

And whether you know it or not, IP is one of your company’s most valuable assets. Indeed, a recent study found that up to 80% of the value of today’s typical business is made up of different forms of IP.

Do You Actually Own The Work You Are Paying For?

Unlike employees, with whom you generally own automatic copyrights to everything they produce while working for you, ICs typically retain full copyrights to their work—unless they’ve signed a written agreement stating otherwise. Indeed, if you don’t have properly drafted agreements in place, you may not even own the work you pay ICs to produce for you. 

Fortunately, it’s fairly easy to secure full ownership of these works by using the proper legal agreements. However, this is only possible if you actually put these agreements in place with every IC you work with—and yes, this means every single person, even those you have worked with for years without a single problem.

Work-For-Hire Agreements

When it comes to using legal agreements to secure ownership of the work you hire an IC to produce, you have a couple of options. One option is to include a work-for-hire clause in their independent contractor agreement.

A work-for-hire clause states that you, not the IC, own all copyrights to the deliverables he or she produces for you under the agreement. Such a clause effectively makes it as if you created the work yourself, and as such, it allows you to use the work in any way you wish.

Just be sure to have the IC sign the agreement before he or she starts working. If not, it may be too late to acquire full ownership. Additionally, work-for-hire clauses only cover certain types of materials. According to the U.S Copyright Office, in order for a work-for-hire to apply, the work being created must fall into one of the following nine categories:

1. a contribution to a collective work, such as a magazine or anthology
2. a part of an audiovisual work or movie
3. a translation
4. a supplementary work, such as a forward, editorial notes, appendix, bibliography, or chart
5. a compilation created by selecting and/or arranging preexisting works
6. an instructional text
7. a test
8. answer materials for a test
9. an atlas

If the work you hire an IC to create does not fall into one of these categories, a work-for-hire clause would not give you full ownership. This catches many business owners by surprise, who falsely assume having such a clause is all they need. However, if the work you are paying for doesn’t fit into these categories, you will need a different type of agreement to secure ownership of the IP—and as you can see, the type of work covered by work-for-hire agreements is fairly limited.

Copyright Assignment

For works that fall outside of the work-for-hire domain, you will need to include an assignment clause in the contractor’s agreement, in which the IC transfers some, or all, of their copyrights to your business. Without this clause, the IC would retain all rights to the work, even if the agreement contained a work-for-hire clause.

Adding an assignment clause to the IC’s agreement is fairly simple, and for maximum protection, you can even include such a clause alongside a work-for-hire provision. It’s as easy as simply adding a brief clause in the agreement stipulating that if the work is not deemed a work-for-hire, the IC assigns all copyrights to your company.

Non-Disclosure & Non-Disparagement Agreements

In addition to work-for-hire clauses and copyright assignment agreements, all of your agreements with contractors should also include non-disclosure and non-disparagement agreements, which would keep an IC from disclosing details about their work with you to outside parties, especially your competitors. A non-disclosure agreement could cover trade secrets, confidential business information, and financial information about your business, and even whether the IC worked with you.

Although you may not think of it this way, one of your most valuable items of intellectual property is your reputation. A non-disparagement agreement assures you that an IC is unlikely to tarnish your reputation after working with you.

Don’t Go It Alone

Although work-for-hire, copyright-assignment, non-disclosure, and non-disparagement clauses and agreements are not difficult to create, because each project is unique, there is not a specific template or generic form that would cover every job. What’s more, the wording of each agreement is also important, and some states require specific language for work-for-hire agreements to be legally valid.

Given this, you should steer clear of generic legal agreements you find online, and always have us, your Family Business Lawyer™ review your IC agreements, even if they were drafted by another lawyer. Whether you need your existing agreements reviewed or need help creating new contracts, as your Family Business Lawyer™, we will support you in developing the proper legal agreements that will give you the most comprehensive ownership rights possible with every contractor you hire. 

Furthermore, we can perform an IP audit for your company. This audit is a comprehensive, systematic review that identifies all of your IP assets, and evaluates all of the potential risks and opportunities associated with those assets. An IP audit will not only identify your IP assets, it can also help ensure you have all of the necessary IP protections, such as trademarks, copyrights, along with the proper legal agreements governing those projections to ensure you own the full spectrum of rights related to your IP. Contact us, your local Family Business Lawyer™ firm today to get started.

This article is a service of Sahmra Stevenson, Family Business Lawyer™. We offer a complete spectrum of legal services for businesses and can help you make the wisest choices on how to deal with your business throughout life and in the event of your death. We also offer a LIFT Start-Up Session™ or a LIFT Audit for an ongoing business, which includes a review of all the legal, financial, and tax systems you need for your business. Call us today to schedule. 

These days, more and more young people are delaying—if not totally foregoing—a life that involves marriage and parenting. The lack of jobs, crushing student debt, multiple recessions, and the pandemic have pushed many young people into a life path that leaves little room for settling down with a partner and getting married—and even less room for having children.

Yet, for other young adults, staying single and childless is simply a matter of choice. Regardless of the reason, as more young adults opt for non-traditional lifestyles, the number of single childless households is likely to steadily increase in the coming years.

While most adults don’t take estate planning as seriously as they should, if you are single with no children, you might think that there’s really no need for you to worry about creating an estate plan. But this is a huge mistake. In fact, it can be even MORE important to have an estate plan if you are single and childless.

If you are single without kids, you face several potential estate planning complications that aren’t an issue for those who are married with children. And this is true whether you’re wealthy or have very limited assets. Indeed, without proper estate planning, you’re not only jeopardizing your wealth and assets, but you’re putting your life at risk, too. And that’s not even mentioning the potential conflict, mess, and expense you’re leaving for your surviving family and friends to deal with when something unexpected happens to you. 

With this in mind, if you’re single and childless, consider these three inconvenient truths before you decide to forego estate planning.

1. Someone Will Have to Handle Your Stuff

Whether you’re rich, poor, or somewhere in between, in the event of your death, everything you own will need to be located, managed, and passed on to someone, which can be a massive undertaking in itself—one that few families are properly prepared for. 

In fact, following a loved one’s death, American families spend an average of 500 hours and $12,700 over the course of 13 months (20 month if probate is required) to finalize the person’s affairs and settle their estate, according to the first annual Cost Of Dying report released this March by tech startup Empathy in partnership with Goldman Sachs. Look for additional articles in the coming weeks covering the Cost Of Dying and the new role Empathy is playing in the end-of-life industry.

On top of the logistical complications involved with finalizing your affairs, without a clear estate plan, including a will or trust, your assets will go through the court process of probate, where a judge and state law will decide who gets everything you own. In the event no family steps forward, your assets will become property of the state.

Why give the state everything you worked to build? And even if you have little financial wealth, you undoubtedly own a few sentimental items, maybe even including pets, that you’d like to pass to a close friend or favorite charity.

However, it’s rare for someone to die without any family members stepping forward. It’s far more likely that some relative you haven’t spoken with in years will come out of the woodwork to stake a claim. Without a will or trust, state intestacy laws establish which family member has the priority inheritance. If you’re unmarried with no children, this hierarchy typically puts parents first, then siblings, then more distant relatives like nieces, nephews, uncles, aunts, and cousins.

Depending on your family, this could have a potentially troubling—and even deadly—outcome. For instance, what if your closest living relative is your estranged brother with serious addiction issues? Or what if your assets are passed on to a niece with poor money-management skills, who is likely to squander her inheritance?

And if your estate does contain significant wealth and assets, this could lead to a costly and contentious court battle, with all of your relatives hiring expensive lawyers to fight over your estate. In the end, this could tear your family apart, while making their lawyers rich—all because you didn’t think you needed an estate plan.

As your Personal Family Lawyer®, we will work with you to create an estate plan that ensures that your assets will pass to the proper people, while avoiding both unnecessary court proceedings and family conflict.

2. Someone Will Have Power Over Your Healthcare

Estate planning isn’t just about passing on your assets when you die. In fact, some of the most critical aspects of estate planning have nothing to do with your money at all, but are aimed at protecting you while you’re still very much alive.

Proactive planning allows you to name the person you want to make healthcare decisions for you in the event you are incapacitated and unable to make such decisions yourself. This is done using an estate planning tool known as a medical power of attorney.

For example, if you’re incapacitated due to a serious accident or illness and unable to give doctors permission to perform a potentially risky medical treatment, it would be left up to a judge to decide who gets to make that decision on your behalf.

If you have a romantic partner but aren’t married and haven’t granted him or her medical power of attorney, the court will likely have a family member, not your partner, make those decisions. Depending on your family, that person may make decisions contrary to what you or your partner would want.

And if you don’t want your estranged brother to inherit your assets, you probably don’t want him to have the power to make life-and-death decisions about your medical care, either. But that’s exactly what could happen if you don’t put a plan in place.

Furthermore, your family members who have priority to make decisions for you could keep your dearest friends away from your bedside in the event of your hospitalization. Or family members who don’t share your values about the type of food you eat, or the types of medical care you receive, could be the one’s making decisions about how you’ll be cared for.

To address these issues, you need to implement an estate planning tool that provides specific guidelines detailing exactly how you want your medical care to be managed during your incapacity, including critical end-of-life decisions. This is done using an estate planning vehicle known as a living will.

Bottom line: If you are single with no kids, you need to create an estate plan in order to name healthcare decisions-makers for yourself and provide instructions on how you want those decisions made should you ever become incapacitated and unable to make those decisions yourself.

3. Someone Will Get Power Over Your Finances

As with healthcare decisions, if you become incapacitated and haven’t legally named someone to handle your finances while you’re unable to do so, the court will pick someone for you. The way to avoid this is by granting someone you trust durable financial power of attorney.

A durable financial power of attorney is an estate planning vehicle that gives the person you choose the immediate authority to manage your financial, legal, and business affairs if you’re incapacitated. This agent will have a broad range of powers to handle things like paying your bills and taxes, running your business, collecting your Social Security benefits, selling your home, as well as managing your banking and investment accounts.

Without a signed durable financial power of attorney, your family and friends will have to go to court to get access to your finances, which not only takes time, but it could lead to the mismanagement—and even the loss—of your assets should the court grant this authority to the wrong person.

What’s more, the person you name doesn’t have to be a lawyer or financial professional; it can be anybody you choose, including both family and friends. The most important aspect of your choice is selecting someone who’s imminently trustworthy, since they will have nearly complete control over your finances while you remain incapacitated. And besides, with us as your Personal Family Lawyer®, your agent will have access to our team as their trusted counsel should they need guidance or help.

Don’t Leave So Much At Risk
Given these potential risks and costs for yourself and  those you care about, it would be foolhardy if you are single without kids to ignore or put off these basic estate planning strategies. Identifying the right estate planning tools is easy to do, and it begins with a Family Wealth Planning Session. During this session, us,  your local Personal Family Lawyer® will consider everything you own and everyone you love, and guide you to make informed, educated, and empowered choices for yourself and your loved ones.

In the end, it will likely take just a few hours of your time to make certain that your assets, healthcare, and finances will be managed in the most effective and affordable manner possible in the event of your death or incapacity. Don’t leave your life and assets at risk or leave a mess for the people you love; contact us, your Personal Family Lawyer® to get your estate planning handled today.

This article is a service of Sahmra A Stevenson, Personal Family Lawyer®. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $450 session at no charge.

When creating an estate plan, people are often most concerned with passing on the “big things” like real estate, bank accounts, and vehicles. Yet these possessions very often aren’t the items that have the most meaning for the loved ones we leave behind.

Smaller items, like family heirlooms and keepsakes, which may not have a high dollar value, frequently have the most sentimental value for our family members. But for a number of reasons, these personal possessions are often not specifically accounted for in wills, trusts, and other estate planning documents. 

However, it’s critical that you don’t overlook this type of property in your estate plan, as the distribution of such items can become a source of intense conflict and strife for those you leave behind. In fact, if you don’t properly address family heirlooms and keepsakes in your estate plan, it can lead to long-lasting disagreements that can tear your family apart.

Heirlooms & Keepsakes: Little Things With Big Value

Heirlooms and keepsakes are both prized for their sentimental value, but these possessions are slightly different from one another in terms of the manner in which the items are passed on. 

Heirlooms: Heirlooms are passed down among family members for generations, and the passing of heirlooms sometimes involves traditions. For example, the first daughter to marry inherits grandmother’s heirloom wedding ring.

Keepsakes: Keepsakes, on the other hand, are possessions that are given or kept specifically for sentimental or nostalgic reasons, and these items may only get passed on once. For example, photo albums are a typical keepsake that are treasured by many families. If a keepsake gets passed on multiple times, it may eventually become a family heirloom.

Although just about any personal possession could be considered an heirloom or keepsake, some of the most common examples of these items include the following:

• Jewelry
• Photographs
• Books
• Art
• Musical instruments
• Furniture
• Clothing
• Bibles
• Recipes
• Family documents (such as birth certificates, baptism records, and citizenship papers)
• Collections (such as sports memorabilia, coins, stamps, and doll collections)

Issues Raised By Passing On Heirlooms & Keepsakes

In the legal world, both heirlooms and keepsakes are considered “non-titled personal property.” As mentioned earlier, when there is no plan in place for the distribution of these items following the owner’s death, it can create bitter conflicts among family members. Indeed, fights over heirlooms and keepsakes can cause close family members to never speak with one another again.

In her book “Who Gets Grandma’s Yellow Pie Plate?” Professor Marlene S. Stum, an expert in family social science at the University of Minnesota, warns of the infighting that can occur when there’s no plan for who inherits these personal effects.

“What surprises many people is that often the transfer of non-titled personal property creates more challenges among family members than the transfer of titled property,” says Stum. “Research has shown that disputes over inheritance and property distribution are one of the major reasons for adult siblings to break off relationships with one another.” 

Given the potential trouble the distribution of heirlooms and keepsakes can cause for your heirs, you’ll want to take extra care in seeing that these family treasures are passed on properly. And this means incorporating them into your estate plan in one way or another. 

Strategies For Peacefully Distributing Heirlooms & Keepsakes
While there is no one perfect way to distribute these items in your estate plan, your primary goal should be to maintain harmony among your loved ones during an already emotional time. As with most sensitive issues, clear communication is vital to this process.

Because your family members can have vastly different values associated with certain heirlooms and keepsakes and you may have little idea about how each person feels, you should speak with each family member in advance. By talking with family members about their feelings and expectations regarding your possessions ahead of time, you will have a much better idea how to distribute these items to your loved ones with the least amount of conflict.

Additionally, you should decide ahead of time if you need to have any of your heirlooms or keepsakes appraised. In doing so, you provide your heirs with the necessary documentation to gauge the monetary value of these items, and you can save them from extra work while they are mourning your death. 

Again, the manner in which you distribute your heirlooms and keepsakes will depend largely on the items you have to pass on and your specific family situation. That said, here are a few estate planning strategies to consider when passing on these precious possessions.

Gifting during your lifetime: Of course, you don’t have to wait until you die to pass on your heirlooms and keepsakes, and you may prefer to give away certain special items while you are still living. By doing so, you get to personally witness the joy your loved ones experience when they receive the gift, and you can also personally explain the reasons you want each person to have a particular item.  

If your heirlooms and/or keepsakes have a high monetary value, you should keep gift tax issues in mind when you give them away. That said, the IRS has a high annual gift tax exclusion ($16,000 in 2022) and an equally high lifetime exclusion ($12.06 million in 2022), so few people will need to worry about such taxes.

Keep in mind, the lifetime exclusion amount will revert back to its pre-2018 level of around $5 million per individual in 2026, so if you are considering gifting high-value possessions, you may want to do it sooner, rather than later. In any case, if you have possessions you want to give away that might trigger gift taxes, meet with us, your Personal Family Lawyer® to discuss your options.

Include items in your estate plan using a personal property memorandum: As with other assets you want to pass on after your death, you should include heirlooms and keepsakes in your estate plan by adding them to your will or trust. The best way to do this is by using what’s known as a personal property memorandum.

A personal property memorandum is a separate document that is referenced in your will or living trust. The memorandum allows you to list which items you wish to leave to each individual and detail the reasons you are giving each item. In many states, if it’s properly incorporated into your will or trust, a personal property memorandum is a legally binding document.

Furthermore, unlike a will or trust, you can create and update your memorandum without a lawyer’s help. You can change your memorandum as many times as you like, just make sure you sign and date it each time to ensure authenticity. Your memorandum can be as long or short as you like, which allows you to account for even the smallest or seemingly insignificant possessions.

Most types of tangible personal property can be included in your memorandum, but it’s important to note that you cannot list certain assets in a memorandum, including titled property, such as real estate and vehicles; assets with a beneficiary designation, such as life insurance, 401(k)s, and bank accounts; or intellectual property, such as works protected by a copyrights or trademark. If you are unsure if you should include a certain possession in your personal property memorandum, consult with us.

Although you don’t need a lawyer to create or modify your personal property memorandum, if you need any help or support with yours, reach out to us, your Personal Family Lawyer®. That said, you should always enlist our assistance if you’d like to create or update your will or trust.

Pass on the values & stories behind the possessions: You may want to consider making audio recordings to accompany your heirlooms and keepsakes. In this way, your loved ones not only get to hear your voice, but they will also be able to learn the stories behind the possessions, as well as the reasons why you gave each person a particular item.

These stories not only help connect you with future generations, but having a strong family narrative also helps young people develop strong personal identities and boosts their self esteem. In the New York Times article, “The Stories that Bind Us,” author Bruce Feiler comments on this phenomenon: “The more children knew about their family’s history, the stronger their sense of control over their lives, the higher their self-esteem, and the more successfully they believed their families functioned.”

Best of all, you don’t have to worry about creating these recordings yourself, as we offer this exact service during our Family Wealth Legacy Interviews. In every estate plan we create for our clients, we will personally guide you to create a customized recording for the people you love, and then we will provide you with the recording digitally to ensure it will survive long after you are gone.

Don’t Let Anything Fall Through The Cracks
Of course, if no one can find your heirlooms and keepsakes, they aren’t going to do anybody any good. For this reason, it’s vital that you create and maintain a comprehensive inventory of all of your assets, including each of your family heirlooms and keepsakes. Fortunately, this is another service we offer all of our clients at no additional charge. Indeed, we will not only help you create a comprehensive asset inventory, we have systems in place to make sure your inventory stays consistently updated throughout your lifetime. 

To learn more and get your inventory started for free right now, visit the Personal Resource Map website to watch a webinar by Ali Katz, founder of Personal Family Lawyer®. Then, schedule a meeting with us, your local Personal Family Lawyer® to incorporate your inventory with your other estate planning strategies

Keep The Peace After You Are Gone
To ensure your heirlooms and keepsakes don’t create any unnecessary conflicts among your heirs, make sure that your estate plan includes all of your assets, especially your family heirlooms and keepsakes. As your Personal Family Lawyer, we can support you to ensure these precious treasures are protected and preserved as part of your Life & Legacy Plan, and that they pass to each of your loved ones in exactly the manner you would want, without causing a family feud. Contact us today to learn more.

This article is a service of Sahmra Stevenson, Personal Family Lawyer®. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $450 session at no charge.