What are the advantages of forming a C Corporation? Compared to an S Corporation?
The C Corporation offers many advantages over a sole proprietorship or a partnership, and some advantages over an S Corporation. While the C corporation and the S corporation have very similar characteristics, the C corp is subject to double taxation (at the corporate level and the shareholder level), while the S corp only gets taxed at the shareholder level. Both C corps and S corps have shareholders who elect a board of directors, and both offer their shareholders limited liability, protecting the personal assets of the shareholders from the actions of the company. The board of directors is the decision making body of the corporation, who elects the officers, or the persons that operate the company on a daily basis. In many small corporations, the officers and directors are frequently the same person.
Why should you incorporate?
• Limited Liability: a corporation protects the personal assets of the Shareholders from any judgments, financial obligations or bankruptcies that the company may face. Typically the shareholder is only responsible for the amount it invested, and nothing further.
• Corporations can raise money by selling stock and acquiring new shareholders.
• Corporations may deduct the costs of benefits it provides to officers and employees (e.g. health insurance premiums, parking, etc.).
An S corporation has all of the same advantages and must follow the same formalities as a C corporation, but each is taxed differently, and the S Corporaiton has different requirements. The C corporation is taxed at the corporate level, on the corporations earnings, and at the shareholder level, when the company pays dividends. The S corporation is only taxed at the shareholder level, because the profits pass directly to the shareholders.
The S corporation has a number of restrictions that the C Corporation does not have, including the fact that an S Corp can only have 100 shareholders, and that all shareholders must be US citizens or residents, and none of the shareholders can be corporations or LLCs.
How many stockholders does a Florida corporation need?
Florida only requires a corporation to have only one shareholder.
Do I need an EIN for my corporation?
Yes, your corporation will need an EIN to begin conducting business. The EIN is required to open bank accounts and to apply for credit cards. Furthermore, you cannot begin to hire employees without an EIN number, because this number is required for payroll taxes as well as federal and state taxes.
What is a business name search?
Florida allows you to search its database before registering your corporation to ensure that the corporate name you are trying to register has not already been taken by someone else. We conduct a name search for your business to ensure proper registration, and notify you if the name you have chosen is not available.
Can a corporation own another corporation?
Yes, a corporation can own shares in another corporation. This is usually referred to as a parent company. A subchapter S corporation can also own another C corporation, but a C Corporation cannot own shares in a subchapter S corporation.
How many shares should my corporation issue?
This question really depends on how many shares you need. We can
discuss this during our initial consultation.
What are shares of stock?
The stock of a corporation represents the original capital paid into or invested in the business by its owners. Stock is distinct from the property and the assets of a business which may fluctuate in quantity and value.
A share of the company’s stock reflects an ownership interest in the company. If the company has 200 shares of stock, and you own 100 shares, then you own 50% of the company. The number of shares also has an impact on the company’s net income. When a company has a profit and decides to pay dividends to its shareholders, it usually does so based on the number of shares. So, a company may decide to pay a dividend of $3 per share. In the above example, because you have 100 shares, you would receive $300 in dividends.
The stock of a business is divided into shares, the total of which must be stated at the time that the corporation is formed. Given the total amount of money invested in the business, a share has a certain declared face value, commonly known as the par value of a share. Shares represent a fraction of ownership in a business. A business may have a number of different classes of shares, each having distinctive ownership rules, privileges, values or voting rights.
Ownership of shares is typically evidenced through the issuance of a share certificate. A share certificate is a legal document that specifies the amount of shares that you own, the name of the company, the class of share, and the par value.
How do I add a stockholder to my corporation?
The process for adding a new shareholder is something that should be designated in your articles of incorporation, shareholder agreement or in your bylaws. If your articles, shareholder agreement or bylaws do not state how to add a shareholder, then you should hold a meeting of the board of directors to approve the new shareholder. It is possible that you will require the vote of all the other shareholders. If there are sufficient shares, you can sell the new shareholder shares outstanding; if not, your company will have to issue new shares. If you have questions, you should contact us, and we will work with you to determine the best way to add shareholders to your corporation.
If I am not a U.S. citizen but I live in the U.S., can I be a corporate stockholder or officer?
There are no restrictions on foreign ownership of a company formed in the United States. The procedure for a foreign citizen to form a company in the United States is the same as for a US resident. It is not necessary to be a US citizen or to have a green card to own a corporation or limited liability company formed in the United States.
Note, however that a nonresident of the United States CANNOT be a shareholder in an S-Corp. There are no restrictions with the C corp and foreign ownership. While anyone can start a C-Corporation, only citizens and residents can own S-Corporations. Contact us to determine which corporate formation is best for your current situation.
When do I need to file a DBA?
When you are operating your business under a name other than the legal name, you need to register your DBA. This means either your legal name if you operate a sole proprietorship, or the corporate name.
Example: If your name is George Saint and you own a restaurant called “Saint’s Pizza” as a sole proprietor (not registered as a corporation or LLC), then you need a DBA.
Example: If your corporation is FinalMeet, Inc. and you operate under the name “Race Stars”, then you need to file a DBA to recognize “Race Stars” as the corporate name.
What is a trademark?
A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.
What are the benefits of federal trademark registration?
1. Constructive notice nationwide of the trademark owner’s claim.
2. Evidence of ownership of the trademark.
3. Jurisdiction of federal courts may be invoked.
4. Registration can be used as a basis for obtaining registration in foreign countries.
5. Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign goods.
Do I have to be a U.S. Citizen to obtain a federal registration?
No. However, an applicant’s citizenship must be set forth in the record. If an applicant is not a citizen of any country, then a statement to that effect is sufficient. If an applicant has dual citizenship, then the applicant must choose which citizenship will be printed in the Official Gazette and on the certificate of registration.
When is it proper to use the federal registration symbol (the letter R enclosed within a circle — ® — with the mark?
The federal registration symbol may be used once the mark is actually registered in the U.S. Patent and Trademark Office. Even though an application is pending, the registration symbol may not be used before the mark has actually become registered. The federal registration symbol should only be used on goods or services that are the subject of the federal trademark registration. [Note: Several foreign countries use the letter R enclosed within a circle to indicate that a mark is registered in that country. Use of the symbol by the holder of a foreign registration may be proper.]
What constitutes interstate commerce with respect to trademarks?
For goods, “Interstate commerce” generally involves sending the goods across state lines with the mark displayed on the goods or the packaging for the goods. With services, “interstate commerce” generally involves offering a service to those in another state or rendering a service which affects interstate commerce (e.g. restaurants, gas stations, hotels, etc.).
Is a federal registration valid outside the United States?
No. However, if you are a qualified owner of a trademark application pending before the USPTO, or of a registration issued by the USPTO, you may seek registration in any of the countries that have joined the Madrid Protocol by filing a single application, called an “international application,” with the International Bureau of the World Intellectual Property Organization, through the USPTO. For more information about the Madrid Protocol, see TMEP Chapter 1900.
Also, certain countries recognize a United States registration as a basis for filing an application to register a mark in those countries under international treaties. See TMEP Chapter 1000 for further information. The laws of each country regarding registration must be consulted.
How do I find out if I need patent, trademark and/or copyright protection?
A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions. For patent information, go tohttp://www.uspto.gov/patents/index.jsp.
A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and service marks.
Copyright is a form of protection provided to the authors of “original works of authorship including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.
What is a specimen with respect to trademarks?
A specimen is a real-world example of how the mark is actually used on the goods or in the offer of services. Labels, tags, or containers for the goods are considered to be acceptable specimens of use for a trademark. For a service mark, specimens may be advertising such as magazine advertisements or brochures. Actual specimens, rather than facsimiles, are preferred. However, if the actual specimens are bulky, or larger than 8½” x 11″, then the applicant must submit facsimiles, (e.g., photographs or good photocopies) of the specimens. Facsimiles may not exceed 8½” x 11″. ONE SPECIMEN IS REQUIRED FOR EACH CLASS OF GOODS OR SERVICES SPECIFIED IN THE APPLICATION.
Specimens are required in applications based on actual use in commerce, Section 1(a), 15 U.S.C. §1051(a), and must be filed with the Amendment to Allege Use, 15 U.S.C. §1051(c) , or the Statement of Use, 15 U.S.C. §1051(d), in applications based on a bona fide intention to use the mark in commerce, Section 1(b), 15 U.S.C. §1051(b). Specimens are not required for applications based on a foreign application or registration under Section 44 of the Trademark Act, 15 U.S.C. §1126, or for applications based on an extension of protection of an international registration to the United States under Section 66(a) of the Trademark Act, 15 U.S.C. §1141f.
What is the drawing in a trademark application?
The “drawing” is a representation of the mark applicant seeks to register. In an application based on actual use, Section 1(a), 15 U.S.C. §1051(a), the drawing must show the mark as it is actually used, i.e., as shown by the specimens. In the case of an application based on a bona fide intention to use, Section 1(b), 15 U.S.C. §1051(b), the drawing must show the mark as the applicant intends to use it. In an application based on a foreign application or foreign registration, Sections 44(d) or 44(e), 15 U.S.C. §§1126(d) or (e), the drawing must depict the mark as it appears or will appear on the foreign registration. The applicant cannot register more than one mark in a single application. Therefore, the drawing must display only one mark.
If an applicant submits a specimen, is a drawing still required?
Yes. A drawing is required in all applications, and is used by the Office for several purposes, including printing the mark in theOfficial Gazette, and on the registration certificate. A specimen, on the other hand, is required as evidence that a mark is in actual use in commerce.
On what bases can a foreign applicant file an application for registration?
1. Use in interstate commerce or commerce between the United States and a foreign country.
2. Bona fide or good faith intention to use the mark in interstate commerce or commerce between the United States and a foreign country.
3. Ownership of an application filed in a foreign country (if within six months of the foreign filing date).
4. Ownership of a foreign registration (with a copy).
5. Extension of protection of an international registration to the United States under the Madrid Protocol, pursuant to section 66(a) of the Trademark Act.
Can the trademark office refuse to register a mark?
Yes. The Office will refuse to register matter if it does not function as a trademark. Not all words, names, symbols or devices function as trademarks. For example, matter which is merely the generic name of the goods on which it is used cannot be registered.
Additionally, Section 2 of the Trademark Act (15 U.S.C. §1052) contains several of the most common (though not the only) grounds for refusing registration. The grounds for refusal under Section 2 may be summarized as:
1. the proposed mark consists of or comprises immoral, deceptive, or scandalous matter;
2. the proposed mark may disparage or falsely suggest a connection with persons (living or dead), institutions, beliefs, or national symbols, or bring them into contempt or disrepute;
3. the proposed mark consists of or comprises the flag or coat of arms, or other insignia of the United States, or of any State or municipality, or of any foreign nation;
4. the proposed mark consists of or comprises a name, portrait or signature identifying a particular living individual, except by that individual’s written consent; or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow;
5. the proposed mark so resembles a mark already registered in the Patent and Trademark Office (PTO) that use of the mark on applicant’s goods or services are likely to cause confusion, mistake, or deception;
6. the proposed mark is merely descriptive or deceptively misdescriptive of applicant’s goods or services;
7. the proposed mark is primarily geographically descriptive or deceptively geographically misdescriptive of applicant’s goods or services;
8. the proposed mark is primarily merely a surname; and
9. matter that, as a whole, is functional.
Does the USPTO refund my fees?
Not usually. Only money paid by mistake or in excess (that is, paid when not required, or not required in the amount paid) may be refunded. A filing fee will be returned if submitted with a defective application which is denied a filing date. However, once the application receives a filing date, the filing fee will normally not be returned. All requests for refunds should be referred to the Finance Office, or the Examining Attorney assigned. Note that we do not refund our legal fees either.
How long does it take for a mark to be registered?
It is difficult to predict how long it will take for an application to mature into a registration, because so many factors can affect the process. Generally, an applicant will receive a filing receipt almost instantly if filing from the Trademark Electronic Application System (TEAS), or approximately two weeks after filing on paper. The filing receipt will include the serial number of the application. All future correspondence with the USPTO must include this serial number. You should receive a response from the Office within approximately three months from filing the application. However, the total time for an application to be processed may be anywhere from almost a year to several years, depending on the basis for filing and the legal issues that may arise in the examination of the application.
How long does a trademark registration last?
For a trademark registration to remain valid, an Affidavit of Use (“Section 8 Affidavit”) must be filed: (1) between the fifth and sixth year following registration, and (2) within the year before the end of every ten-year period after the date of registration. The registrant may file the affidavit within a grace period of six months after the end of the sixth or tenth year, with payment of an additional fee.
The registrant must also file a §9 renewal application within the year before the expiration date of a registration, or within a grace period of six months after the expiration date, with payment of an additional fee.
Assuming that an affidavit of use is timely filed, registrations granted PRIOR to November 16, 1989 have a 20-year term, and registrations granted on or after November 16, 1989 have a 10-year term.
This is also true for the renewal periods; renewals granted PRIOR to November 16, 1989 have a 20-year term, and renewals granted on or after November 16, 1989 have a 10-year term.
Can the ownership of a trademark be assigned or transferred from one person to another?
Yes. A registered mark, or a mark for which an application to register has been filed is assignable. Written assignments may be recorded in the U.S. Patent and Trademark Office for a fee.
What can I copyright?
literary works
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works
sound recordings
architectural works
What is a statement of use?
One of the bases for filing a federal trademark application is “intent to use,†which means that you intend to eventually use the mark in interstate commerce, but you have not used it yet. If an intent to use application is granted by the PTO, the PTO will issue a notice of allowance. This notice indicates that your mark has been approved for registration and that you have six months to begin using the mark and to file a statement of use. This statement of use is simply a sworn statement which attests to the fact that you have begun using the mark in commerce. When you file the statement of use, you must also file an appropriate specimen with the PTO. Once the PTO receives your statement of use and specimen, your trademark will be registered. the notice of allowance gives you a six month window to file a statement of use. If you need more time, you can file a request for extension of time to file a statement of use. These requests are routinely granted by the PTO and will give you an additional six months to file the statement of use.
Do I have to be a US citizen to obtain a trademark registration?
No. However, an applicant’s citizenship must be set forth in the record. If an applicant is not a citizen of any country, then a statement to that effect is sufficient. If an applicant has dual citizenship, then the applicant must choose which citizenship will be printed in the Official Gazette and on the certificate of registration.
How do I transfer a copyright?
The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. There are no forms provided by the Copyright Office to effect a copyright transfer. The Office does, however, keep records of transfers if they are submitted.
What happens if I don’t file my statement of use or extension request?
If you don’t respond in time by filing a statement of use or an extension request, the USPTO will consider your application abandoned. You will therefore have to submit a whole new application if you wish to proceed with registering your trademark in the United States.
What is “used in commerce” for trademarks?
For the purpose of obtaining federal registration, “commerce” means all commerce that the U.S. Congress may lawfully regulate; for example, interstate commerce or commerce between the U.S. and another country. “Use in commerce” must be a bona fide use of the mark in the ordinary course of trade, and not use simply made to reserve rights in the mark. Generally, acceptable use is as follows:
For goods: the mark must appear on the goods, the container for the goods, or displays associated with the goods, and the goods must be sold or transported in commerce.
For services: the mark must be used or displayed in the sale or advertising of the services, and the services must be rendered in commerce.
“Use in Commerce” means the bona fide use of a mark in the ordinary course of trade described above.
When you apply for federal trademark registration questions are asked about your mark and commerce, in connection with the goods and/or services indicated in your application.
In practical terms: “Use in Commerce” could mean that your product (goods) or service was sold outside of the state in which it originates or was advertised out of state.
The USPTO defines “Interstate Commerce” as sending goods across state lines with the mark displayed on the goods or the packaging for the goods. “Interstate Commerce” for services involves offering a service to those in another state or rendering a service which affects interstate commerce (e.g. restaurants, gas stations, hotels, etc.).
What is trademark renewal?
For a trademark registration to remain valid, an Affidavit of Use (“Section 8 Affidavit”) must be filed: (1) between the fifth and sixth year following registration, and (2) within the year before the end of every ten-year period after the date of registration. The registrant may file the affidavit within a grace period of six months after the end of the sixth or tenth year, with payment of an additional fee.
The registrant must also file a A9 renewal application within the year before the expiration date of a registration, or within a grace period of six months after the expiration date, with payment of an additional fee.
How long does a trademark registration take?
Trademark registrations can range from six months to a year.
What is an “actual use” trademark application?
An “Actual Use” application is one where the owner of the mark is currently using the mark they seek to register in commerce, selling its goods or marketing its services. Compare this to a statement of use, where the owner is not currently using the mark, but intends to do so within the next six months.
How many years does a trademark registration last?
Trademark registrations last 10 years, at which point you would be required to renew the mark.
What’s the difference between a trademark and a copyright?
A copyright protects original works that fall under the categories of literature, dramatic, musical, artistic, and intellectual. These works may be published or unpublished. A Copyright gives the owner the exclusive right to make and distribute copies, or perform a work, or make derivative works, depending upon the type of creative work it is. It is infringed when someone violates those rights, such as by making illegal copies.
A Trademark provides an individualized right to use a distinctive mark, sound, color, word, design, etc, to indicate a particular source and quality of branded goods or services. It is infringed when someone uses the brand to falsely indicate or suggest goods or services came from the rightful brand owner, and not the knock-off producer.
Sometimes these overlap, as where a design may be protected by copyright in the sculpture of something and in the trademark value represented by the form itself. For example, if you design a logo for your business, the artwork may be subject to copyright registration, and the use of the logo with your business may become a trademark.
The best way to think about this:
A copyright protects the expression of an idea
A patent protects an idea
A trademark protects the branding of that idea.
What review does the USPTO do after filing a mark?
After the USPTO determines that you have met the minimum filing requirements , the application is forwarded to an examining attorney. This may take a number of months. The examining attorney reviews the application to determine whether it complies with all applicable rules and statutes and includes all required fees. A complete examination includes a search for conflicting marks, and an examination of the written application, the drawing, and any specimen.
If the examining attorney decides that a mark should not be registered, the examining attorney will issue a letter (Office action) explaining any substantive reasons for refusal, and any technical or procedural deficiencies in the application. If only minor corrections are required, the examining attorney may contact the applicant by telephone or e-mail (if the applicant has authorized communication by e-mail). If the examining attorney sends an Office action, the applicant’s response to the Office action must be received in the Office within six months of the mailing date of the Office action, or the application will be declared abandoned.
If the applicant’s response does not overcome all objections, the examining attorney will issue a final refusal. To attempt to overcome a final refusal, the applicant may, for an additional fee, appeal to the Trademark Trial and Appeal Board, an administrative tribunal within the USPTO.