Trademarks are essential because they serve to identify the source of a particular service or goods.

But sometimes, there can be confusion – or the potential for confusion – in the marketplace. Trademark law is set up in part to prevent such occurrences from happening and many applications for trademarks are rejected each year if The United States Patent and Trademark Office believes that a proposed mark may infringe upon the rights of an existing mark or pending application.

What tests do courts use to determine a “likelihood of confusion”?

“The tests used are based on the Circuit Court involved and whether the trademark is Internet-based or otherwise,” said Anthony Spotora, a Los Angeles-based business and intellectual property lawyer. “Some of the most widely recognized tests, however, are the Du Pont Factors and the Sleekcraft Factors. These refer to specific court case rulings.”

What follows is a list of factors that courts may consider, though some factors may be given more weight than others. Also, trademark infringement issues are considered on a case-by-case basis. Trademarks don’t have to be exactly similar either – just confusingly similar.

Heading Off Problems Before They Occur

“A trademark is a sign or indicator that can include one or more of the following: a logo, a word or phrase and images,” Spotora said. How does one avoid potential trademark infringement problems when selecting a mark?

Common factors in testing for likelihood of confusion:

-Similarity of the two marks

-Whether or not the goods and services offered by the two parties are related or similar

-The strength of the marks

-Proof of actual confusion

-What channels each party markets their respective goods or services

-How customers are likely to purchase the goods or services

-Intent in selecting the mark

-Whether there might be expansion into other markets and how that might impact each party

If one is seeking to apply for a federally protected trademark and/or service mark and is unsure if his or her mark might infringe upon the rights of a registrant or common law rights holder, it would be wise to order a comprehensive trademark search report through an intellectual property lawyer and let him or her review the findings and advise on such.

An ounce of prevention is worth a pound of cure!

To learn more, visit https://www.spotoralaw.com/.

It may have been tweaked a thousand times. Labored over for several years. And had heart and soul poured into it.

Every screenplay writer’s dream is to have his or her screenplay sold and end up on the silver screen. Getting Hollywood to bite and then knowing how to legally protect one’s creation are two important considerations.

Protecting the Intellectual Property

It is important to copyright the finished screenplay. While it is unlikely an agent or studio would steal from a script and risk litigation, the possibility does exist. A little bit of extra effort can prevent this unfortunate event from occurring.

There are two popular methods for copyrighting screenplays. One is to go through the Library of Congress. Legally, it is necessary to register a work in order to be successful in court.

The other option is to go through the Writers Guild. The Writers Guild is a writer’s union, though it is not necessary to be a member to have a script copyrighted. It is worth noting that this route can be relatively useless if the party ever winds up in litigation. Only a federally registered copyright with the U.S. Copyright Office will gain admission into federal court.

Selling The Script

Sometimes screenwriters use agents to sell or option their scripts, and sometimes they do not. Either way, here are the two kinds of common deals.

Sales: This is when a script is purchased outright by the producer. Sometimes there is a flat-fee provided upfront and other times an additional amount of money is offered if and when the film is actually completed. There are even some experienced screenwriters who can negotiate for residuals from such revenues as those generated from DVD sales.

Option: This is when the script is essentially rented for a certain time period. The producer retains the exclusive rights to the story and can then either relinquish the rights to the script or purchase it outright.

Negotiations

The compensation received for optioning or selling a script can vary greatly, depending on how well-known the script writer is, the quality of the story and how good of a negotiator the writer’s team is.

If an agent is used, there may be an entertainment attorney who can look over the legal issues in the contract. If no agent is used, it is best to hire an entertainment lawyer who can make sure one’s best interests are being looked after in the deal.

While selling a script can be a thrilling experience, it is important to make sure that one receives the most beneficial terms possible.

Anthony Spotora is a Los Angeles entertainment lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

Both talent managers and talent agents try to find work for their clients, but each has a different manner of going about things.

For example, talent managers often work with a much smaller group of clients – often a couple dozen or less – when compared with talent agencies, which can have hundreds of clients. Agents primarily deal with casting directors to place actors in particular jobs. But talent managers also have relationships with producers and directors and others in the industry.

Talent managers, in short, help guide careers and can provide more personal attention and typically have a greater network at their disposal. Naturally, they also usually charge more.

For starters, agents are licensed by the state they work in and most commonly earn their money by negotiating deals for their clients. Typically, they also enter into a client agreement which is, in pertinent part, regulated by industry labor unions such as, the Screen Actors Guild (SAG), the Writers Guild of America (WGA) and, the Directors Guild of America (DGA). Through these regulated agreements, the commissions that agents charge their clients are legally bound to a prescribed percentage. Furthermore, it should be noted that agents may not serve as a producer on their clients’ projects.

On the other hand, managers are not commission-regulated, do not need a license to “manage” and, can charge their clients 15 percent or more. . . and often do.

The length of a contract with a talent manager can vary. Managers only get paid via commission, but a really good manager will actually cover various costs for his/her client due to their belief in their success and the manager’s ability to make things happen. It is also important to also choose someone who will actually take the time to help his or her client.

An actor with little or no experience may be willing to just sign up with any manager, but it is important to take a detailed look at the contract that is being offered. More than likely it will be a “standard” contract, but there is always an opportunity to seek adjustments.

Consider Before Signing

It is prudent to research a talent manager before signing a contract. Ask for references. Research court records to see if they have been involved in any lawsuits. And ask around the industry.

Before signing, it is also wise to have an entertainment attorney review the document. The money spent on the review could be well worth the cost of future problems.

Anthony Spotora is a Los Angeles entertainment lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

For those with a successful business, franchising can be a good way to expand quickly and perhaps stay ahead of the competition.

After all, franchising brings little risk to the franchisor as the franchisee is the one putting up his or her capital when opening a new unit.

What is a franchise?

Franchising is the selling of a particular business model and method.

“The franchisee will pay an upfront fee for the right to use a name and/or trademark to open a business and to receive the proper training,” said Anthony Spotora, a Los Angeles-based business lawyer. “Often, the franchisee will also pay an ongoing percentage of sales to maintain its rights and keep receiving assistance in various areas such as advertising, marketing and operational management.”

Franchising a business has many pros, but it is important to undertake such an endeavor only after careful thought. Business owners put their hearts and souls into their businesses and often believe wholeheartedly in what they are offering to the public, but the reality is that the franchise model is simply not right for every business.

Things to Consider Before Taking the Plunge:

-Can this concept or product survive in other markets? What is a success in one region may be a failure in another. While the franchisee is the one taking the financial risk, poor performance can obviously have a negative impact on a name or brand.

-Will others want to buy this concept? Can others see the value in this particular model and method of doing business?

-Is there a manual of operation? Investors need to see that there is a method for running the business and an explanation of how they will receive training in the opening and operation of the business.

-Is there a prototype or a proven record of performance? Investors are more likely to believe in a concept or product that has a track record of success rather than one that has yet to get off the ground.

“Franchising is regulated by state and federal law. It is important to stay abreast of those rules and regulations. Those who do not follow them could end up seeing large fines or felony convictions,” Spotora said.

For those thinking about franchising a business, it is important to speak with an experienced business attorney.

To learn more, visit https://www.spotoralaw.com/.

If you are serious about the music you create as a composer, you should be serious about music licensing.

Music is everywhere in the world of entertainment: Movies, television, radio advertisements and commercials. There is always a need for top-notch songs and artists.

“For an upcoming composer, licensing music is a vital step in growing a career,” said Anthony Spotora, a Los Angeles-based entertainment and business lawyer. “Licensing music means that your creation is not only protected from illegal use but can also bring a source of income and bigger name recognition. If the people behind a commercial or feature film like your composition, for instance, they will request a music license for the piece.”

While music licensing can be lucrative, it is important to become educated about the process and to receive adequate representation to secure the best deals for oneself.

There are several options for music licensing. One of the best-known options is to register and become a member of ASCAP, BMI or SESAC, which are also known as performing rights organizations (“PRO”).

Such companies collect millions of dollars annually for composers and publishers for so-called performance royalties, but you must be registered as a member to see this income.

“Performing rights organizations act as middlemen, essentially,” Spotora said. “When a song is  ‘performed’ – this includes usage in commercials, airplay, etc. – the user pays the PRO rather than the copyright holder directly. The copyright holder is then paid a royalty by the PRO.”

A separate option is to connect with a publishing company. The publisher will handle issues such as music licensing, collecting royalties and negotiating licensing figures. If your publisher works hard and is well-connected, it can generate serious income for you as a composer and catapult your career to new heights.

If you are a composer, it is important you understand how to properly protect your music as well as secure the most desirable music licensing deals. For questions about legal matters pertaining to music licensing, contact an experienced entertainment attorney.

Anthony Spotora is a Los Angeles entertainment lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

In today’s economic downturn, more and more businesses may be looking to alter their business models. Such a plan for change is often referred to as a corporate turnaround strategy.

With revenue streams suffering, it can be difficult to figure out what to do when your business is experiencing such disappointment. But with the few tips below, it is possible to develop a plan that will help you identify problems and alter the course of your business for the better.

1. If your business is experiencing problems and feels like it is in freefall, the first step to take before you do anything else is to seek stabilization. Take a look at what assets are critical for the survival of both the company and its ownership and then protect and preserve those assets.
2. Next, you need to undertake a lengthy and comprehensive identification period. You need to get back to finding out what your business is all about. What are the core values that your company holds? Who are your main customers, and are you continuing to provide them with goods or services that they want? What do you really stand for? Have you gotten away from your business principles?
3. Once you have answered these questions, you need to make an honest list of the core problems with your business. Seek input from not only management, but staff, too. What processes are counterproductive? What uncritical functions need to be scaled back? Remove the excess. Perhaps layoffs need to take place. Perhaps entire departments need to be scaled back. If it doesn’t fit with the core values of your business, it probably needs to go.
4. Put together an implementation plan for making these changes. Provide specifics on how these changes will be implemented. Develop a timetable for taking certain steps. Eliminate the chance of chaos by carefully explaining how the restructuring will take place.
5. Now you are ready for the actual restructuring. It will be all-important to follow the specified steps in your implementation plan.
6. Review your restructuring plan periodically and make updates and tweaks as necessary.

Undertaking a corporate turnaround can be a complex and stressful process. If your business is looking to complete a turnaround, it may also be helpful to hire a consult or an experienced corporate attorney who can offer a fresh set of eyes.

Anthony Spotora is a Los Angeles business attorney, intellectual property lawyer and entertainment lawyer.  To learn more, visit Spotoralaw.com.

Intellectual property is a complicated aspect of law, to be sure. It encompasses, among other things, copyrights and trademarks, and is intended to protect a variety of “creations of the brain.”

Copyright does not protect ideas, rather, but original literary and artistic works, musical pieces, discoveries, inventions, logos, designs, architectural creations, photographs and the like. The term “intellectual property” wasn’t used until the 1800s, though the foundation for the legal protection of intellectual property began centuries ago.

Section 106 of the 1976 Copyright Act generally gives the copyright holder the right to the reproduction of his or her work, to distribute copies or recordings for sale to the public, to perform or display the work publicly and to take other similar actions. The law also details “fair use,” which allows the use of copyrighted material for news reporting, criticism and other special cases.

Intellectual property also includes trademarks. Trademarks are protected by a sign or other indicator that can help distinguish one service-provider or goods manufacturer from another. The sign or indicator can include one or more of the following: a logo, a word or phrase and images. They are protected by the Trademark Act of 1946.

A trademark is essential because it serves to identify a particular business as the source of the service or goods. Registration of a trademark provides federal protection and a bundle of rights; however, use alone can establish common law rights. Those who infringe upon these rights can be subject to penalties.

Trademarks are registered in most countries and are also classified by the International (Nice) Classification of Goods and Services into 45 Trademark Classes. Numbers 1 to 34 concern goods, while numbers 35 to 45 concern services. For a trademark to be registered, it has to be original and cannot be deceptive or similar to trademarks that have already been registered.

Copyrights and trademarks are an essential part of many businesses. And in today’s world, when the rights of creators are being threatened by so many advances in technology, it is important to protect your creations.

If you are looking to file copyright or trademark papers, or believe that someone else has stolen your work or trademark, it is essential that you hire an experienced attorney.

To learn more, visit https://www.spotoralaw.com/

Becoming an S corporation for United States federal income tax purposes can be a very enticing thing to do.

S corporations are unique in that they don’t pay federal income taxes. The incomes and losses are divided among the corporation’s individual shareholders instead. Unlike C corporations, S corporations are not double-taxed through the company’s profits and shareholder dividends, which is perhaps the most important part of S corporation status. Predictably, this can result in substantial income savings.

There are a variety of other benefits a corporation can gain from electing to be treated as an S corporation, including the ability to offset losses against taxable income from other sources. Also, some corporate penalties and the federal alternative minimum tax do not come into play for an S corporation.

It is important to note that while S corporations have many advantages, there are other operational matters that should be considered. Firstly, there are other costs associated to S-Corp election, such as filing an annual S corporation tax return and quarterly and annual payroll tax paperwork. Individual and corporate assets also need to be separated.

Regardless, S corporations are becoming ever-popular in the United States. There were about 725,000 in the United States as of the mid-1980s, yet these numbers grew to more than 3 million by the early 2000s. They are currently the number one type of corporate entity.

But the Internal Revenue Service has had ongoing problems with S corporations, only 25 percent of which are believed to be in compliance. The IRS in recent years has worked to increase the number of taxes collected for S corporations.

The complete S corporation rules are contained in Subchapter S of Chapter 1 of the Internal Revenue Code (sections 1361 through 1379). It is a good idea to consult an experienced attorney to learn the ins and outs, advantages and disadvantages, of becoming an S corporation.

To learn more, visit https://www.spotoralaw.com/.

If you’re an employer and have invested in an employee for a long time, the last thing you want to happen is have that worker jump to a competitor.

After all, that employee has good insider knowledge and could help the competition swipe away some of your customers, employees, market share – and even trade secrets.

Usually, a non-competition agreement or non-compete clause in an employment agreement would take care of such problems by barring the former employee from working for competitors for a certain period of time. Yet there’s a big problem with that when it comes to California. The Golden State considers non-competition agreements/non-compete clauses unenforceable in just about every instance, according to a 2008 ruling by the state supreme court. Other states have some restrictions, but California is one of the first to take such a hardline stance on the matter.

So what is an employer to do in order to safeguard his or her business? Experts say the next best thing is to address this issue from the get-go by requiring a well-worded non-solicitation agreement be signed at the time of hiring. A non-solicitation agreement, in conjunction with a confidentiality agreement, will go a long way in protecting your bottom line and market share.

This step will restrict an employee from soliciting customers while they are with your company and, once they leave, from using trade secrets to solicit customers.

“It can be difficult to prove solicitation,” said Anthony Spotora, a Los Angeles-based business lawyer, “but a non-solicitation agreement can be your best offense in California when seeking to defend your business and your bottom line.”

It is important to note that the trade secrets component is the only enforceable component of a non-solicitation agreement. The same 2008 Supreme Court decision that found non-compete agreements to be unenforceable also found that non-solicitation agreements are only enforceable when they are limited to trade secrets, or intellectual property. This distinction must be clear in the employee agreement.

Trade secrets can encompass a wide range of information such as customer lists, technical information and computer programs, software, techniques and licensing.

As per California’s 2008 Edwards vs. Arthur Andersen decision affecting non-solicitation and non-compete contracts, this extends to employers both in and out of state.

To learn more, visit https://www.spotoralaw.com/

Your business has a great name, logo and slogan to stimulate brand recognition. Are those creations copyrightable?

One of the most common questions an intellectual lawyer gets asked relates to copyrighting a brand name, title or a logo. Is it possible to copyright those creations? The short answer is no, and in fact, brand names, short phrases, business names and slogans are explicitly excluded from protection; something that usually comes as a significant disappointment to businesses hoping to protect their identities.

The exclusion is actually quite wide and is applicable to any kind of a title, short ad expression, catch-phrase or name. Let’s say your forte was collecting and writing about recipes the great chefs of the world made famous. There are a lot of people who would copy those recipes and give them a whirl. Isn’t that a copyright violation? In the instance of labels, formulas, recipes and ingredient lists, the answer is they are not protected by copyright. However, the text with the directions, explanations and other descriptions may be eligible for copyright. Tread cautiously.

What about a person who wants to use a name in business/commerce? This is different. Business names, brand names and even slogans may be protected. Trademark law says those things are protected if and when they are used in commerce to make a product stand out from someone else’s. Just to throw a spanner into the works, trademark law also says you have exclusive rights to a trademark if you are the first user (under certain conditions). You would need to speak to an intellectual property lawyer about this to find out how it may apply to your circumstances.

In general, there is some trademark protection available automatically if you use your marks in commerce/business. But you still need to register a trademark federally in order to be covered nationwide.

Just to backtrack a bit, that bestselling cookbook about the world’s greatest chefs has recipes and formulas in it, and they aren’t protected by copyright or trademark law. If you want to protect them, you either have to consider that they are trade secrets, or patent them. To that end, you can only patent a recipe or formula if it is new and not just a combo of things already in existence. Drug makers pull that kind of stunt all the time by combining two existing drugs into one and calling it a new drug.

What about the recipe for Pepsi or Dr. Pepper? While these two drinks are recipes, their origin is a formula and is therefore a trade secret. That means they’re protected indefinitely just so long as no one exposes them. A patent would grant up to 20 years protection. If you don’t know if your product or other good may be copyrightable or qualify for a patent, ask an intellectual property attorney. Finding out now saves potential litigation grief later.

Anthony Spotora is a Los Angeles business attorney, intellectual property and entertainment lawyer.  To learn more, visit Spotoralaw.com.