Here’s my story.

One year ago today, I walked out the doors for the last time of a safe, stable and seven-year long job. It wasn’t a bad job, all things considered. I learned a tremendous amount, made some good friends and enjoyed the challenge of being under fire from time to time. There were major and petty annoyances, like any other job, but it was fine. The ubiquitous “fine”.

A Fine Job, not a Great Life

Yet good enough was no longer enough. It simply wasn’t working for me, especially the push-yourself-to-your-limits-each-and-every-minute atmosphere typical of many law jobs, most notably in the finance world. Needs (not wants), from motherhood to health, were screaming to be addressed. I struggled to fit my life around my job, as high-level jobs nearly always demand, instead of integrating the two into a solid whole. I did yoga on the weekends and was stressed out all week. I felt stifled and exhausted, and I could no longer do my best work.

The answer was clear. I needed a way to reconnect with my values. This wasn’t a free-to-be-me, let’s-find-myself goal. Don’t get me wrong, as uncool as it sounds, I have always loved being a lawyer. But I was choking down my own success, not able to chew any of the individual bites. I wanted to taste my life again. I wanted to be the lawyer and person I knew I was meant to be. I only have one life, after all, and it was abundantly clear that I wasn’t living it the way I had always envisioned.

A New Path – Finding My Core

After many months of racking my brain for what environment could better match where I was going (or how to make my job a better fit), I realized that there was no known place to land. At least not with my then-current skills and the common lack of vision among recruiters and HR departments. I could have spent years retraining, but I didn’t have years. I needed to make it happen. Soon. Myself. I needed to craft my own suit rather than buying off the rack. Create my dream job from scratch.

(You have to love stock images. Can you think of an uglier suit than that?)

So I did. On May 1, 2012, I took my biggest risk. With six months of income saved, a supportive family and a walk into the unknown, I started my own law firm.

A year later, with many scrapes and lessons learned, I can report back that my path is not for the faint of heart. Although there is not one day that I wish I was parked back in that chair at my old office, I can imagine many people would. It has been quite an uphill walk, and no one drives by with a golf cart ready to help you up that hill. (Although a few will stop to offer some shade and a cool drink.) It’s character-building at its best. And worth every minute.

We Are Not Alone

I have learned, most importantly, that I am not alone. I have a great support group of clients, mentors, colleagues, other lawyers, small business owners and friends who have helped me visualize what my practice can be and achieve new heights. In return, I do the same for them. I would never have imagined how my world could and did open up after that first step.

After over a decade with corporate law as my core, my practice has expanded organically, largely driven by client needs and my desire to maintain a manageable schedule and grow in measured steps. I was asked by a friend to find a local trademark lawyer, and I ended up with a new client (after hours and hours of study to learn the area). Then a friend of a friend needed help with her non-profit. I am now working with a few key mentors and colleagues to assist her with the tax exemption process and other matters. Still other friends and colleagues, who are parents of minor children, have needed wills, advance directives and guardianship appointments over the past year. Furthermore, artists, knowing my background in the arts, have come to me with questions in that field. These practice areas are diverse and yet related, and my knowledge and experience in each one informs the other.

The Years to Come

I look forward to what the next year may hold in store, as these (now core) practice areas continue to cross-pollinate and mature. As I said recently to a group of businesswomen I know, each new day is like a little present waiting to be opened.

Fast forward to today, one short year from the day I walked out of that safe job and started this journey. My hope for more collaborative relationships and a self-directed, fulfilling future is being realized. I am blessed with awesome clients who have taken a risk in hiring me out of the gate, and I believe and trust that they have been fully satisfied with their choice. I look forward to serving them further and new clients and friends in many years to come.

*****

Anne Marie Segal’s biggest risk was trading security for self-direction. She has taken a further risk to document the decision and process rather than project a pre-approved, professionally-manicured cutout with no personality. (We tend to like our lawyers bland, after all, without any zest or salt.) She’s not that lawyer, and she never will be. Ms. Segal’s clients, who are generally looking for a client-centered relationship – not a didactic, inflexible lawyer with no new ideas – thank her for that.

Law Office of Anne Marie Segal celebrates its first anniversary as of tomorrow. The office was founded on May 1, 2012 and is located in Stamford, Connecticut.

Over the last year, Ms. Segal’s practice has expanded and now includes business and non-profit law, contract drafting, trademarks, art law and estate planning.

In September 2012, Ms. Segal launched this law blog (AMS Counsel Blawg) with the goal of “educating clients and the public on the basics and finer points of law and legal analysis.”

In November 2012, Ms. Segal added a second bar admission and now practices law in Connecticut and New York. In addition, she offers federal trademark registration services nationwide.

“A client from Hong Kong is not so different than one from Ohio.
It’s just another name on a document and an annoying time zone.”

That was how, when I was a summer intern during law school, a junior associate (let’s call him Bob) explained to me his approach to having a global client base. Fortunately, Bob’s opinions were rather rare at the international firm where I was employed. It was also obvious that Bob was engaged merely in the drudgery of the documents, without a sense of client service and with little (if any) client contact. I knew at the time, and I appreciate so much better now, that having clients across the globe brings unique challenges and opportunities.

You can’t pigeonhole your international clients with common cultural stereotypes. The interplay and nuances are a lot more complex. For lawyers, here are some thoughts to better your relationship with your foreign clients:

1) Cultural sensitivity goes a long way. Educate yourself about whether there are certain gestures in your client’s culture that are considered offensive, such as looking the client straight in the eye, getting too close, skipping small talk, using a client’s first (given) name, etc. Also be aware of what common practices pervade. Do meetings start on time? Is lunch a time to do business or socialize? What is the custom for business cards? Are there customs for men or women’s dress or social behaviors that are appropriate (and also within your own comfort zone)?

2)  Obviously there are language differences (even if your client is a native speaker of English). References that seem obvious to you may be lost on your client. It is important when representing international clients to avoid colloquial expressions or use “shorthand” descriptions that may not make sense to someone who has grown up in a different milieu.

You also may find that although your client writes to you in “English,” the words on the page may not be strung together in a comprehensible way. You will need to find a way to tease out the important concepts and “mirror back” their questions so you can answer exactly what they are asking.

3) The legal system of your client’s home country may be structured in a manner unlike the U.S. As a baseline, the U.K., the U.S. and similar legal systems are based on common law, while many other countries have civil law systems. Islamic countries may be governed by or incorporate sharia law, and certain countries may have other religious laws or customs that affect or influence their secular law or jurisprudence. Different legal systems have different rules and obligations, including ethical obligations. The more you can understand your clients’ frames of reference, the more you can advise them about the rules and expectations of your own country.

4) In addition, very few nations have a federalist system in which lawyers are admitted state-by-state (or in a similar manner). Your international client may not understand, without proper explanation, why you are admitted in certain states but cannot represent them in other states. It behooves you to understand the scope of their business or issues and whether you can provide full representation or will need to get another counsel involved.

Of course, clients differ in their understandings of the U.S. legal system. Some may have an extensive appreciation of certain or many aspects of U.S. law while others got their ideas about how things work from popular lawyer TV shows. (To be honest, this may be true for your U.S. clients as well.)

5) Lawyers may have a different role in your client’s country (or his or her individual experience). For example, I recently had an international client ask me to negotiate a contract in a practice area with which I am not very familiar, among other requests for which I requested follow-up information. When I mentioned that I would need to review the contract to determine if I felt comfortable handling it, she said, “In my country, the lawyers do what C-level executives ask without so many questions.” Whether or not she is correct, I was grateful that she could express her expectations – even if they were inappropriate in my case – because it helped me manage those expectations and preserve (even grow) the relationship.

6) Avoid overlawyering, or if you need long and complex language, explain why it is important. In many countries, a two-page document may be used in situations where our common forms are 30 or more pages. Simplify where you can but do not oversimplify. As I mentioned in point 2 above, many countries have civil law systems in which the language that might be in a U.S. contract is already codified. If you need to include extensive contractual language to protect the client, make sure he or she understands its purpose and does not feel you are simply running up legal fees.

7) Put all fee agreements in writing. This is important for all clients, but especially international clients for the reasons explained above.

8) Don’t condescend. If you have any self-awareness about the relationship between the U.S. and other countries, you will realize that Americans do not always have a great reputation abroad. Similarly, lawyers are often seen as arrogant or worse, whatever the culture. Be the exception, and your clients will thank you for it.

9) Respect their time zones (literal and figurative). If your client is 12 hours ahead, consider taking an 8 am call rather than insisting it start at 9 or 10 am. That way, you are both inconvenienced, but not as much as if either of you insisted on working only during normal business hours. Similarly, if you know your client’s boss is only available in the morning, make sure to check your email in the evenings to respond to any last-minute questions (or at least acknowledge the question and let the client know an answer is forthcoming).

10) Treasure the relationship. Consider yourself fortunate to have the opportunity to work with international clients. There is nothing greater in the world than to gain insight into ourselves and our own points-of-view (and limitations), and one of the surest ways to do that is to learn to cross the divide between cultures.

As I am sure you are aware, international representation goes far beyond simply changing the name of an Ohio client to a Hong Kong one on a set of documents, whatever Bob tried to lead me to believe. I welcome suggestions from readers on further points to consider and wish you the best with your global client base.

Law Office of Anne Marie Segal provides legal counsel to businesses and individuals. Please visit www.amscounsel.com for more information. None of the information posted on this site constitutes legal advice or forms an attorney-client relationship, and there may be facts not discussed here that are relevant to your situation. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

New topic alert!

As a new practice area of mine, copyrights will be a topic for future posts, along with my usual fare (business law, trademarks, estate planning and other legal topics). Copyrights are fun to write about, and it is fun to read how they work. Just about everyone has something in life that begs to be copyrighted, right?

But what does that even mean? What’s a copyright?

In the U.S., we can start with the definition from the U.S. Copyright Office:

Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.

It is sometimes difficult to wrap your mind around exactly what is protected by copyright law, and it may be best to tease out the concepts slowly.

Let us start with the 100 best songs. But which 100? Of course, there is no single list of the best songs ever, and the contenders for spots on the list can range all the way from the Beach Boys’ California Girls to Bach’s Jesu, the Joy of Man’s Desiring, depending entirely on your choice in music. [Of course, we could add Led Zeppelin, Pink Floyd, U2, The Beatles, Nirvana, etc. to round out the list....]

What if you made your own list? Say your name is Eric, and you sat down and blogged or otherwise publicized your 100 favorite songs or what you think are the 100 best songs of all time or in the last decade, etc. Would it be protected by copyright?

Here’s one such list by one Eric Mack:

The 100 Greatest Songs of All Time

Could I copy it and say that it’s my own list? I could just remove Eric’s name and make it Anne Marie’s 100 Best Songs of All Time….

Actually, no. Eric has copyright protection for his list, as do the many others that have come up with similar lists, from VH1 to NPR, and from Karen to Ted to Emily Jane. Why? Because it is not simply a list of the most played songs according to quantifiable data. (That would not be copyrightable.) It’s a subjective list based on personal taste, so it’s original, and it has been published or otherwise fixed in a tangible medium of expression.

The fact that you like certain songs is not copyrightable, but the list itself is copyrightable as to the selection and arrangement of songs.

Does that give you food for thought on the copyright front or simply motivate you to create something copyrightable – your own best songs ever? If the latter, feel free to send a link to your own list. Either way, stay tuned for more posts.

Law Office of Anne Marie Segal provides legal counsel to businesses and individuals. Please visit www.amscounsel.com for more information. None of the information posted on this site constitutes legal advice or forms an attorney-client relationship, and there may be facts not discussed here that are relevant to your situation. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

Well, the short answer is – you can. You can get a short, generic form agreement or filing from a service provider (with or without minimal “attorney review”), which may look and feel like a helpful, valid and comprehensive document until some dispute arises. You can also put your own roof on your house with the advice of a book or YouTube video, or from a kit, which may look and feel just fine until water starts to leak in….

Take a multi-member LLC agreement, for example. What are some of the things that can go wrong with a sparsely-drafted, generic agreement? I recently checked out the standard form of operating agreement from one of these services (not LegalZoom in this case, but a competitor with similar services). It allowed me to create a PDF copy (not Word, so I could not make additional changes) of a multi-member LLC agreement, with the help of prompts included as part of the program. Here are only some of the problems I observed in the program and language of the document, aside from what else could be added or improved:

1) Initial capital contributions are included but there is no language about what happens if (a) a member fails to contribute or (b) additional contributions are required or desired over time. These contributions may be needed to keep the company solvent, pay debts or ensure adequate capitalization (so limited liability is respected by the courts), or desired to expand the business, but under the agreement there is no mechanism to encourage or require them.

2) The agreement provides for profit allocations four times a year, with no discretion by the manager or a vote of the members. What if the proposed distribution would render the company insolvent? Should the members ignore or amend the LLC agreement at that point or call their lawyers to sort it out?

3) The agreement also provides that the members will receive enough funds to cover their income taxes when profits are allocated. Like the above, it sounds good, but what if there is not enough cash to do it (e.g., in the case of a large property distribution)? Should there be, for example, an exception in some cases? The program not only does not allow the option, it fails to clarify or even present the issues.

4) The agreement provides that “members … keep accurate books and records”. Have you ever heard of proper accounting by multiple individuals, none of whom has ultimate responsibility for it? Same for the tax filings. Have fun with that one.

5) The program automatically grants all members authority to sign checks from the LLC’s account. Does that sound like a good idea? Well, it depends, but in many cases it is better to have only one or two people handling the company purse.

6) Any member can withdraw at any time. The program did not offer an option that would require the member to provide any notice of withdrawal (so that, for example, the others could get funds together to buy him/her out).

7) The program also plugged in (without verification or options) that the members agree to hire an outside firm to assess the value of a withdrawing member’s shares. How would you, if you were trying to administer this agreement, find the right person to do that? How much would it cost? Is one opinion enough and what qualifications must the firm have? Again, if you are not working with a lawyer, you may not know if there are other valuation options and/or how to craft careful language to avoid disputes.

8) The agreement also provides that if the withdrawing member is not bought out by the others (collectively or individually) within 60 days, the LLC will be dissolved. A smart and devious LLC member could use this provision to force the hand of the other members, especially if the others are cash-poor, with threat of dissolution simply by threatening to withdraw.

9) There are no options – only standard language – regarding what happens a member dies or becomes incompetent. In that case, the interest goes to the heir who would have “all of the rights of an assignee of the member’s interest”. (It did not state “and all of the obligations”, which is a critical flaw.) This means that if a child, spouse, parent or other individual is an heir, the other members are stuck with him or her. Even if the new member has no idea how to run the business, is a pain in the neck, etc. Of course, the members could dissolve the LLC by majority vote and create a new one (with additional cost, heartburn, potential tax consequences, loss of goodwill in the name, potential breach of leases and other long-term contracts, etc.) Or they could kick out or buy out the new assignee/heir if the agreement included provisions to do so, which this one did not.

10) Under the standard language – which could not be changed in this program – all amendments to the agreement require unanimous written consent of the members. Depending on the number of members and their commonality or diversity of interests, this may or may not be recommended. Also, if unanimous consent is needed for every single change, one member can always stalemate or simply not participate in the amendment, holding the others hostage.

11) The so-called “required mediation” language is very poorly drafted and will likely be misunderstood or the source of bitter disagreements, if ever invoked. For example, the agreement says that “all members agree to enter into mediation before filing suit” yet also provides that “if any member doesn’t attend the mediation, the members are free to file suit”. Changing the language to read “the members (other than the member who did not attend the mediation) are free to file suit” would be just a start at improving the provision.

12) Did I fail to mention that, upon initially selecting an LLC agreement, you are not given a warning or alert from the program that you should check with your accountant or otherwise to determine whether an LLC is even appropriate and most efficient in the first place? If it is not, how much money and time have you saved?

If you are starting a multi-member LLC in any jurisdiction, I strongly urge you to consult with a business attorney and have a properly drafted LLC operating agreement to clearly spell out the rights and obligations of the parties. (I would offer a similar recommendation for other important legal documents.) Any money and time you spend on the “front end” getting it right will likely be money and time you save on the “back end” if the relationship between you and your fellow LLC members sours or if there are disagreements about what a poorly-worded contract actually means. (Oh, and at that point, can you imagine who will want to pay the legal fees to resolve your differences?) As is often said colloquially, marriage and business relationships are often much easier to get into than to live with or get out of. Don’t be the one caught holding the bag.

Law Office of Anne Marie Segal provides legal counsel to businesses and individuals. Please visit www.amscounsel.com for more information. None of the information posted on this site constitutes legal advice or forms an attorney-client relationship, and there may be facts not discussed here that are relevant to your situation. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

LegalZoom is a registered trademark of LegalZoom.com, Inc. This post should not be construed as commentary on whether legal service providers are engaged in the unauthorized practice of law, which is beyond the scope of the current discussion.

Yesterday evening I had the pleasure of stepping in to give a presentation at the University of New Haven on Legal Considerations for Artists, a workshop sponsored by Make.Art.Work. One of the workshop participants asked for a list of helpful websites on the topics discussed, which I would like to share with my readers here as well.

I will post updates, if any, on my law office website. Enjoy!

A Short List of Helpful Art Law and Related Websites:
Copyright, Trademark, Business Law and Beyond

U.S. Copyright Office

http://www.copyright.gov

U.S. Patent and Trademark Office

http://www.uspto.gov/trademarks/index.jsp

U.S. Small Business Administration (info on starting a business, etc.)

http://www.sba.gov/category/navigation-structure/starting-managing-business/starting-business

ArtBusiness.com – Common Artist Legal Problems and How to Avoid Them

http://www.artbusiness.com/legalprobs.html

Nolo – Law for All (type in search term “art”)

www.nolo.com

Lawline.com (a site designed for legal education with “hard core” discussion of topics such as copyright law, you can take courses for free if you create a login)

http://www.lawline.com/cle/course-details.php?i=999#.USzFCqXJD0c

Avvo.com (attorneys answer legal questions posted anonymously on site; take caution to seek legal advice tailored to your situation and avoid posting confidential information)

http://www.avvo.com

Fractured Atlas (assists with fiscal sponsorship for non-profits, etc.)

http://www.fracturedatlas.org

Artists Rights Society

http://www.arsny.com 

Volunteer Lawyers for the Arts – NYC (workshops, etc., some financial aid available)

http://www.vlany.org/education/workshops.php

Connecticut Office of the Arts

http://www.cultureandtourism.org/cct/cwp/view.asp?a=3948&q=464520

(Unfortunately, the CT Volunteer Lawyers for the Arts appears to have disbanded. I am aware of above organization but am not familiar with it personally.)

The above sites are for your information and are not endorsed by Law Office of Anne Marie Segal as correct, updated statements of the law in every case or how it may apply to your situation. This list is geared to new and mid-level practicing artists and therefore does not include links to websites or blogs with updates or details about international art disputes or other high-profile art law information.

Ms. Segal provides legal counsel to businesses and individuals. Please visit www.amscounsel.com for more information. None of the information posted on this site constitutes legal advice or forms an attorney-client relationship, and there may be facts not discussed here that are relevant to your situation. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

A trademark is a word, phrase, symbol or design, or a combination of these elements, that identifies and distinguishes the source of goods of one party from those of other parties. A person or company may have multiple trademarks. If you wish to pursue a federal trademark for your business name, logo and slogan, for example, each of these would be separate applications within the same class or classes.

What is a service mark?

A service mark is the same as a trademark, except that it relates to services rather than goods. A business providing a product would register a trade mark, while a business providing a service would register a service mark.

In the following, as on the USPTO website, the word “trademark” will refer to both trademarks and service marks.

What does a trademark registration do for your business?

At the federal level, a trademark registration (if approved) generally grants you nationwide priority over all other users of the same mark in the same class or classes in which you are registered, other than against third parties who validly used the mark prior to your registration (see more below) and continuously use the mark thereafter (i.e., prior users). A prior user will have priority over you, but only within the geographical area in which it operated prior to your registration date (or, if you used the mark first, prior to your application date) and possible a “zone of expansion”. Outside of that area, a federal registration gives you priority, even against a prior user. If the prior user could demonstrate it operated nationwide prior to your registration and prior to your own nationwide use (if applicable), it would continue to have nationwide priority notwithstanding your application. In addition, it could challenge your application on those grounds. For more subtleties about the ranking of priorities, click here for an article about prior users from one of the top intellectual property firms nationwide.

A “trademark class” refers to the goods or services within that specific class. Class 41, for example, includes education; providing of training; entertainment; sporting and cultural activities. Click here for a full listing of trademark classes. Sometimes businesses operate in more than one class, each of which will require a separate application fee with the USPTO.

You may see that some trademark registration companies (not lawyers) state that a federal trademark gives you “exclusive rights” to the mark nationwide. As stated above, if there are prior users with “common law rights” or state registrations, this may not be correct. You should discuss this matter with your trademark attorney prior to filing a federal registration to understand exactly what your federal trademark will protect.

For state registrations, similar protection is provided, but at a state level.

Can anyone register a trademark for any name, logo, etc.?

Only an owner of a mark can register it, and you cannot register a mark that is already validly registered and in use by another party. In addition, there are certain requirements for trademark registration, which are spelled out in the USPTO publication referenced below. One notable requirement is that you need to be using the trademark at the time of the application or have an intent to use it. If you file an intent-to-use application, you will need to follow up with a statement of use within six months of the USPTO’s notice of allowance. You also must either use the mark in “commerce” or have an intent to use it in commerce. Commerce means interstate commerce, not sales within a single U.S. state. If you are unsure whether you are using or will use your mark in commerce, it is advisable to consult a trademark attorney.

What is the first step in seeking a trademark?

The first step is often to conduct a trademark search to determine whether any third parties are already using the mark, or a variation of it, in the same or a similar manner. This search serves two purposes. First, it informs you about the availability of the mark. Second, it helps you avoid possible infringement of a third party mark.

You can and should conduct an initial search in TESS, the database of the USPTO, to uncover any prior federal registrations, including ones that are prior, pending, abandoned or dead. The name, logo or other mark and any common variants should be searched. In addition, a comprehensive search will include all state registrations and also uncover common law uses by searching data aggregators on business names, both generally and in your particular industry, as well as domain name and social media searches. The depth of information provided by a search company often correlates to the fee charged.

Where can I find more information?

Since trademarks are a money-maker for the U.S. government, there is plentiful information on the USPTO website. I would start here: Basic Facts About Trademarks. In addition, if you would like to join my mailing list or bookmark my “trademarks” category, I will post more information here and at my website from time to time.

Law Office of Anne Marie Segal provides legal counsel to businesses and individuals. Please visit www.amscounsel.com for more information. None of the information posted on this site constitutes legal advice or forms an attorney-client relationship, and there may be facts not discussed here that are relevant to your situation. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

Just about every new baby born in the U.S. – or at least almost every one whose “first pictures” I have seen in countless emails or Facebook postings – looks something like this. You see them in the ubiquitous, unisex blue and pink blanket and cap babies receive in the hospital. Over and over. That’s how you know it’s a newborn.

And then the differences emerge. Their eyes may be open or closed. They may be blonde, brunette, black-haired or bald. Boy or girl. Big or small. Whatever they are, God knows we love them.

I spoke with a friend this afternoon about preparing for her baby, due in June. They have the room ready. The crib is purchased. The curtains are pink. The baby registry is, well, registered. I wished her well, recalling that glowing gush of almost-mommyhood as if it were yesterday.

I also remember the first day I left my son with someone else, a family member. He was three weeks old, and I was gone for less than two hours. I was only about 1/2 block away from the apartment – we lived in NYC and walked everywhere at the time – and I dare near turned around and went back. How could I LEAVE him? The bond felt too strong, the break too fresh. Yet I knew that I needed to keep going forward. The job of a mother is to bring a child into the world and then little-by-little, day-by-day, prepare that child to be independent. We can’t keep them “in the womb,” as it were. As close as we feel to our babies, one day we have start the inevitable, growing separation. That’s a good deal of why they call being a parent the toughest job.

The same son I could barely leave that day is now nine years old. I leave him every day, or rather he leaves me (to get on the bus)…. He has been through two minor operations and countless aches, pains, bumps and sniffles. His younger sister, now six, is on a very special diet (as am I) due to celiac disease, which causes severe reactions after the most minuscule ingestion of gluten. We have become the gluten police. Yet, as the years have gone on, it has become exceedingly clear that I cannot protect my children from absolutely everything. Nor should I, lest they need protection themselves from a helicopter mom. The best I can do is intervene where I can and teach them to make their own way.

In my professional life, I think about these issues every day. As an estate planner, I have the same worries as every other parent and as many of my clients in their 30s and 40s with young children. What if I am not there to help them in life? What if the worst happens, the unthinkable, and their Dad and I don’t live long enough to see them through to adulthood? Back when I started college, my mother told me that for my entire childhood, she worried that she would live long enough to see me through high school. She was thankful to have been granted that wish. Years later but before I had children of my own, I said something about her joy that the worrying could subside at that point. “Are you kidding?” she answered. “Then I worried about living long enough to see you through college….” At some point, we parents can all stop worrying, but hopefully not for many years on.

Back to my friend, the one who’s expecting. A while into our conversation, I gently mentioned her that along with the bottles and blankets, she should consider which standby guardians to appoint for her soon-to-be-born child, in case the unthinkable happens. If she doesn’t plan ahead, and disaster does strike, the decision will be made by a court among a variety of contenders, not by her (and her husband’s) choice. It’s not a rush, hope against hope, but it is important.

We buy life insurance, car insurance, home or renter’s insurance and more. We have collectively come to realize that we won’t cause our home to catch fire by buying insurance. We are merely protecting ourselves and our families. We also need to look fate in the eye and realize that, even in our children’s early days, we need to prepare not only for that first day of separation, but also the last one.

Our children are our best presents in life and our sweetest Valentines. We gave them the gift of life, and we can also give them the gift of being prepared for what life may bring. After that, as I often tell my clients and friends, we can go back to enjoying them!

Because God knows we love them.

This post is one in an occasional series about the interplay of legal practice and everyday life. Anne Marie Segal is admitted to practice law in New York and Connecticut. 

I had never intended to follow up with another trademark post so soon, but I received some comments to the prior post that behoove me to do just that!  Today, the topic is genericide and, as I said in a Facebook post last month, “no, that’s not a typo.”

What would a yo-yo be called if not a yo-yo? Have you ever wondered if there’s a generic name for the toy (like tissues for Kleenex® brand tissues)? The name “yo-yo” was first trademarked in 1932, and at one time it was called a pocket disk toy. Probably most, and possibly none, of my readers would ever remember that name, however. Yo-yo’s have been yo-yo’s for most of our collective lives. As such, shortly after the introduction of the Duncan Butterfly (remember those?) in 1962 and a major television campaign by Donald Duncan, Royal Tops Company sued in federal court stating (and the court agreed on appeal) that yo-yo had become a part of common speech and Duncan no longer had exclusive rights to the term.

The long and short of it is this: the name yo-yo fell subject to genericide. In other words, the trademark “died” because the word became part of the general lexicon as a description for the thing, not the brand. Hence the need for major brands to police their marks and make sure that we don’t refer to the PROPER NAME without the COMMON NAME included.

So that means it’s an Original Slinky Walking Spring Toy or a Band-Aid Brand Adhesive Bandage. Not the shorter, generic forms we often hear in common parlance. Hearing one’s brand name used universally is music to any brand-makers ears, but not their lawyers….

I assume that over half (maybe 99%?) of my readers here today will ignore this advice. Further, those of us who do try to follow it will fail from time to time. In fact, as I was reading up on my facts for this article, I came across an established webpage on branding that referred to “putting a band-aid” on something, as a manner of speech and without any disclaimers. Nonetheless, I am hereby informing you that’s a no-no (not a yo-yo) - even if the short-form references are clearly in jest - as I was advised yesterday by two very senior trademark folks. (One also added that there is no use playing games, as trademark attorneys do not have a sense of humor. So sad for me, but we do need to know the rules of the sandboxes we are playing in.)

Anyway, now you know how to keep out of trouble, with the trademark gods, at least. If you would like to know some more genericized, former marks that we can happily refer to directly, click here. And if my future posts look a bit awkward and wordy from time to time, now you’ll know why. (Or maybe from time to time I’m just not an eloquent writer. No, that can’t possibly be it.)

Alright, readers. My work here is done for today. Let’s see if more comments come. Tomorrow is another day!

Law Office of Anne Marie Segal provides legal counsel to businesses and individuals. Please visit www.amscounsel.com for more information. None of the information posted on this site constitutes legal advice or forms an attorney-client relationship. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

Note: Additional information about genericide and trademarks can be found on the International Trademark Association’s website or in their enclosed PowerPoint presentation (click here) entitled Funeral for a Brand: How Trademarks Become Generic.

I got a cut on my ring finger the other day, trying to lift a heavy box of duraflame® logs into a cart at Fairway. (For the avoidance of doubt and preservation of amusement, that’s Fairway Like No Other Market (a.k.a. Fairway Como Ningún Otro Mercado), not the unrelated Fairway, maker of nonmetal gates, fences, etc.; Fairway Diva Golf.com; Fairway Independent Mortgage Corporation or even Fairway Wine & Spirits, the latter (like Fairway Like No Other Market and Fairway Como Ningún Otro Mercado) a trademark of the Fairway Group Acquisition Company and also a great place to shop.)

Ouch! Cardboard cuts are almost worse than paper cuts. I had to remove my wedding ring and replace it with a Band-Aid brand adhesive bandage. The Band-Aid brand adhesive bandage was borrowed – the kind of “borrowed” that you don’t ever return, that is – and it turned out to be an extra wide Sport Strip® Band-Aid brand adhesive bandage. (It didn’t have the new and improved QuiltVent^TM technology like the ones in the picture below, but you get the idea.)

I can’t remember the last time I wore a Sport Strip® Band-Aid brand adhesive bandage, because nowadays with young kids I am accustomed to borrowing theirs (we should really buy stock in Johnson & Johnson, we use so many). The kids’ Band-Aid brand adhesive bandages, of course, have action or animated figures on them, so they’re cute but not as form-fitting. The Sport Strip® Band-Aid brand adhesive bandages were so comfortable, it almost made the whole thing worth it (but not quite)! I have to say, other adhesive bandages just do not compare.

Oh dear reader, lest you think I have turned into an advertisement for Band-Aid Brand Adhesive Bandages - There, for countless moments of caring^TM - let me set the record straight! In fact, I took my first trademark (actually service mark) client recently, and I submitted the application to the USPTO today. Along with a very practical need to beef up on the area for reliability and depth – literally hundreds of hours of research and mentoring to get up to speed, which my legal-geek self found quite enjoyable – trademark law comes naturally to me, marrying my knowledge of general legal principles and art history training. I have had so much fun with it that I have been “talking trademarks” and “seeing trademarks” all over the place. I felt inspired to memorialize my giddiness with a blog post. (Also, tomorrow is my birthday, so according to my daughter I should be super, super happy today and only think of good things. She would understand my gush of Band-Aid brand adhesive bandage joy. When you’re six, they fix everything.)

Trademarks, service marks… I can no longer drive down a commercial strip in my town or open my cupboards without counting the marks I see along the way and pondering their origins. There are so many stories to tell through the trademark process. (Just take a gander on Wikipedia at the Johnson & Johnson page to get a glimpse into their little stake in trademark world. Did you know they trademarked the Red Cross symbol? And what happened to the mark after that?)

There’s an old phrase that when you are a hammer, you see nails everywhere. I am seeing trademarks everywhere, as well as lots of potential trademarks, if the owners decide take my or others’ advice that trademarking a name, logo or slogan is one of the most important and cost-effective protections to take for a business, assuming that it is available (by meeting USPTO requirements). So, all ® and ^TM fun aside, you will definitely hear more about trademarks in future posts on this blog!

Law Office of Anne Marie Segal provides legal counsel to businesses and individuals. Ms. Segal has been advised from time to time that lawyering should not actually be fun, yet she persists in the willing suspension of disbelief along with occasional split infinitives.

Please visit www.amscounsel.com for more information. None of the information posted on this site constitutes legal advice or forms an attorney-client relationship. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

As of the date of this post, this blog has been renamed from Business Law and Estate Planning to Business Law, Estate Planning & More.

*****

P.S. Since posting the above, a senior trademark attorney and mentor of mine kindly alluded to the fact that the trademark gods do not look kindly on witticisms tending toward genericide, even if used tongue-in-cheek. Please note for the record that neither Band-Aid nor any other name above is used in the generic. I really prefer Band-Aid to any other brand of adhesive bandage, duraflame to any other firelog and Fairway to any other market. You can quote me on that.

P.P.S. Further revisions above have replaced the ® after references to Band-Aid with the text in red and bracketed text in the headline, upon further suggestion from Boyd Tracy, former counsel to Kimberly-Clark Corporation. More comments about that in a later post.

Since I started my own practice in May 2012, I have had the opportunity to put into place my own systems and procedures. I deviously considered throwing out time tracking altogether, because I do a lot of flat rate work. On the other hand, if a client cancels mid-project, I may need some evidence of the work I have done, so I still need a sense of my time invested.

During the summer of 2012, I split my time between law practice and studying for the Connecticut bar. At that point, my time entries were easy, and I did most by hand. I moved to a spreadsheet as work picked up. At some point, I realized that a formal time-entry program would save me time – and time is money, as we all know. It is infinitely more organized and allows you to run reports, generate invoices, etc. I chose Freshbooks, in part because it is accessible on the iPhone and was recommended by other lawyers. There are many others commercially available. If you have never used one of these programs, you name projects and tasks and enter hours into a calendar. Their site explains the rest.

To my surprise, I found that although it takes time to make the entries, I am actually excited to tally up the hours at the end of the day. It is no longer a drugery but instead a happy event.

Maybe it is because, as a small business owner, I am run in so many different directions. Despite feeling busy, it is sometimes hard to figure out what took up so many hours of my day. Maybe I relish the sense of accomplishment. Maybe (surely) it’s exciting to know I’m getting paid!

It has been extremely useful to see how much of my time goes to administration (I bill that as a block, without entering each task), research on a new aspect of one of my practice areas, client development, etc. It also keeps me on track, so I don’t fall into the trap of being unproductive or succumbing too often to “time sucks” (we each have our favorite ones). I can review my own time entries and step back as my own boss to see where it’s all going.

On some days I bill over 10 hours. On others (like today that’s a “blizzard” day in my neck of the woods and beyond), I bill around 3 or 4. I even “bill” the non-billable, professional parts of my day, like this blog post, so that at the end of the year I will know how much time I spend on each task and where to make efficiency improvements or delegate. (I don’t bill the time I spend at the gym, although I’ve considered it on occasion as an interesting exercise, no pun intended.)

So I have a proposition for you, especially if you have never tried this. If you wonder where all your time goes, try one of these programs (free) for a month. Rather than relying on efficiency experts, articles and coaches to get your rear in gear, look over your own shoulder and see what you can see.

Enter as many tasks or as little as you please to get a true sense of your own time management. Tweak at will. See if you spend your time on what truly matters to you personally and professionally, or if you can track yourself to get your time more aligned to your priorities. Have fun.

This post is one in an occasional series about the interplay of legal practice and everyday life. Anne Marie Segal is admitted to practice law in New York and Connecticut.