The Swier Law Firm Corporate and Business Law FAQs
Have questions? We have answers! Our South Dakota attorneys answer the questions they hear most often from clients just like you.
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How do I start a business in South Dakota?
In business, there are no guarantees. There is simply no way to eliminate all of the risks associated with starting a business, but you can improve your chances of success with good planning, preparation, and insight. In particular, knowing how the law affects your business can help you avoid many costly risks. More and more, the law affects every aspect of a business operation - from relationships with landlords, customers, and suppliers to dealings with governmental agencies over taxes, licenses, and zoning.
In The 11 Essential Tips To Starting And Running A Business in South Dakota™, Swier Law Firm's Business & Corporate Law Practice Group provides a step-by-step process to starting your business in our state.
For more information - click here.
What is the Family and Medical Leave Act (FMLA)?
The FMLA prohibits an employer from taking adverse action against an employee because the employee exercises a right to which she is entitled. Taking FMLA leave, however, does not give an employee greater protections against termination for reasons unrelated to the FMLA than was available before. In other words, termination is actionable under the FMLA only if the employee was discharged because of her FMLA leave. To proceed with a claim, an employee must present sufficient evidence for a jury to find that her termination was motivated by her exercise of rights under the FMLA.
What is a data breach under South Dakota's Data Breach Notification Law?
South Dakota's Data Breach Notification Law defines a “breach of system security” as the unauthorized acquisition of unencrypted computerized data or encrypted computerized data and the encryption key by any person that materially compromises the security, confidentiality, or integrity of personal or protected information maintained by the information holder.
The term does not include the good faith acquisition of personal or protected information by an employee or agent of the information holder for the purposes of the information holder if the personal or protected information is not used or subject to further unauthorized disclosure.
How Can I Enhance My Website's Domain Name?
A website is a basic element for any business today. When creating a domain name, many businesses settle on something that fits their product, but fail to reap the full potential of domain-naming by failing to make it a trademark. If you want to make dual use of your domain name, as not only a place in cyber space and but also as a trademark in which your have an ownership interest, keep the following in mind:
- The standards for acquiring a domain name and a trademark are different. Just because a domain name is available doesn't mean it's capable of being trademarked. Trademark is governed by state and federal law and has completely different requirements.
- The purpose of trademark is to distinguish your business from competitors. Don't get fixated on a domain name that's identical to your business name. If it's available, great. But if it's not, you can probably come up with a domain name that echoes your business name and that is distinct enough to earn trademark protection.
- Think about trademarking early. Trademarking in cyber space is competitive. Tons of businesses establish an online presence every day. Business in cyber space happens so fast that your opportunity could be gone in an instant.
The above considerations are provided for informational purposes only. To find out the requirements for trademark, and whether your domain name could become intellectual property, it is best to consult with an attorney.
What is the Computer Abuse and Fraud Act?
The Computer Abuse and Fraud Act (CFAA) is a broad federal law that criminalizes numerous activities related to computers and computer networks. The CFAA is not only a criminal law, but also gives private individuals and corporations the right to sue to recover damages.
The Act forbids anyone from accessing a computer "without authorization." The courts have interpreted this to mean that violating a company's terms of service is equivalent to "accessing that company's computers without authorization." Because the law threatens to burden free expression conduct (such as journalists or researchers using automated web browsing tools), some critics, including free speech advocates have voiced criticism of the CFAA's role in social media censorship.
South Dakota Cyber Law - What is the Digital Millennium Copyright Act?
The Digital Millennium Copyright Act of 1998 (DMCA) was the foundation of an effort by Congress to implement United States treaty obligations and to move the nation's copyright law into the digital age. But as Congress recognized, the only thing that remains constant is change. The enactment of the DMCA was only the beginning of an ongoing evaluation by Congress on the relationship between technological change and U.S. copyright law.
The DMCA is divided into five titles:
- Title I, the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,” implements the WIPO treaties.
- Title II, the “Online Copyright Infringement Liability Limitation Act,” creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.
- Title III, the “Computer Maintenance Competition Assurance Act,” creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair.
- Title IV contains six miscellaneous provisions, relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, “webcasting” of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures.
- Title V, the “Vessel Hull Design Protection Act,” creates a new form of protection for the design of vessel hulls.
What Are The Three Types of Cyber Crimes?
There are three major categories of cyber crimes:
1. Crimes Against People
These crimes include cyber harassment and stalking, distribution of child pornography, credit card fraud, human trafficking, spoofing, identity theft, and online libel or slander.
2. Crimes Against Property
Some online crimes occur against property, such as a computer or server. These crimes include DDOS attacks, hacking, virus transmission, cyber and typo squatting, computer vandalism, copyright infringement, and IPR violations.
3. Crimes Against Government
When a cybercrime is committed against the government, it is considered an attack on that nation's sovereignty. Cybercrimes against the government include hacking, accessing confidential information, cyber warfare, cyber terrorism, and pirated software.
Protecting Your Ideas - What other social media platforms should I protect?
Few things are worse than taking the time to register your business name and obtain your trademark but losing the ability to have matching social profiles. A large portion of digital marketing takes place on your social media accounts and having identical names can be the difference between a customer finding you or finding your competitor. For example, you should register “@mycompany” on Twitter and Facebook.com/”mycompany” to maintain the rights to them. You should consider claiming these online account profiles:
Protecting Your Ideas - What is domain name registration?
In addition to filing for trademark registration, you should consider registering domain names that incorporate your important trademarks. Early domain name registration may prevent another party from registering the domain names and stopping you from using those domain names in your business.
In some instances, companies will also register domain names that are similar to their trademarks as a defensive measure to discourage cybersquatters and typosquatters who often seek payment for the transfer of domain name registrations. While it is possible to file a complaint to have a domain name transferred to the rightful trademark owner, it is typically less expensive to register domain names early in order to “lock up” the rights.
Protecting Your Ideas - Can you reserve a trademark for the future?
Yes. If you are in the planning or development stage of creating a product, you may have an idea for the product’s name that you'd like to trademark, but you don't plan to immediately offer the product to the public. The USPTO allows you to file an "intent to use" (ITU) trademark registration. Filing for an ITU doesn't establish a trademark, it reserves the trademark for future use.
Once you've reserved your ITU trademark, you must use the mark within six months to three years of filing the ITU. Once you actually use the mark in commerce, the “use” of the trademark back-dates to your ITU filing. Under most circumstances, it pays to file for an ITU if you are sure you want to use a certain trademark.