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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What is a trademark or service mark?
Trademarks are often among the most important and valuable assets of a business. A distinctive trademark allows a business to build public goodwill and brand reputation in the goods or services it sells.
- A trademark is any word, phrase, name, symbol, or design (or any combination) that identifies and distinguishes the source of the goods of one party from those of others.
- A service mark is any word, name, symbol or design (or any combination) that identifies and distinguishes the services of one party from those of others. Throughout this book, the term “trademark” and “mark” refer to both trademarks and service marks.
For example, WHOPPER is a word mark for hamburgers, THE MICHELIN design is a logo for tires, TASTE THE RAINBOW is a slogan for candy, and the COCA-COLA bottle is a package design mark for soft drinks. VISA and AMERICAN EXPRESS are service marks for credit card services. Even a sound, smell, color, color combination, or a shape can be a trademark under certain circumstances. For instance, the color pink has become a well-known trademark for insulation used in building construction, and the sound of certain chimes representing the notes G-E-C has become a trademark for the NBC television company.
What is the United States Patent and Trademark Office (USPTO)?
The United States Patent and Trademark Office (USPTO) is a fee-funded agency of the U.S. Department of Commerce. The role of the USPTO is to grant patents for the protection of inventions and to register trademarks and service marks for products and services. It serves the interests of small and large businesses as well as consumers, and helps strengthen the economy by promoting the industrial and technological progress of the nation.
The Commissioner for Trademarks heads the trademark organization and ensures that the USPTO properly examines trademark applications and grants registrations when applicants are entitled to them; records ownership changes of trademarks; and maintains search files and records of U.S. trademarks.
How do I maintain a federal trademark registration for my South Dakota business?
To maintain your trademark registration, you must file your first maintenance document between the 5th and 6th year after the registration date and other maintenance documents thereafter. Your registration certificate contains important information on maintaining your federal registration. If the documents are not timely filed, your registration will be cancelled and cannot be revived or reinstated, making the filing of a brand new application to begin the overall process again necessary. Throughout the life of the registration, you must enforce your rights.
How do domain names, business name registrations, and trademarks differ?
A domain name is part of a web address that links to the internet protocol address (IP address) of a particular website. For example, in the web address “http://www.uspto.gov,” the domain name is “uspto.gov.” You register your domain name with an accredited domain name registrar, not through the USPTO. A domain name and a trademark differ.
A trademark identifies goods or services as being from a particular source. Use of a domain name only as part of a web address does not qualify as source-indicating trademark use, though other prominent use apart from the web address may qualify as trademark use. Registration of a domain name with a domain name registrar does not give you any trademark rights. For example, even if you register a certain domain name with a domain name registrar, you could later be required to surrender it if it infringes someone else’s trademark rights.
Similarly, use of a business name does not necessarily qualify as trademark use, though other use of a business name as the source of goods or services may qualify it as both a business name and a trademark. Many states and local jurisdictions register business names, either as part of obtaining a certificate to do business or as an assumed name filing. For example, in a state where you will be doing business, you might file documents (typically with a state corporation commission or state division of corporations) to form a business entity, such as a corporation or limited liability company. You would select a name for your entity, for example, XYZ, Inc. If no other company has already applied for that exact name in that state and you comply with all other requirements, the state likely would issue you a certificate and authorize you to do business under that name. However, a state’s authorization to form a business with a particular name does not also give you trademark rights and other parties could later try to prevent your use of the business name if they believe a likelihood of confusion exists with their trademarks.
My South Dakota business may need both a trademark and a copyright - are these the same things?
No. Trademarks and copyrights are different types of intellectual property. A trademark protects brand names and logos used on goods and services. A copyright protects an original artistic or literary work. For example, if you invent a new kind of refrigerator, you would apply to register a trademark to protect the brand name of the refrigerator. And you might register a copyright for the TV commercial that you use to market the refrigerator.
What is a service mark and do I need one for my South Dakota business?
A "service mark" is the same as a trademark, except that it identifies and distinguishes the source of a service rather than goods.
What is a trademark and do I need one for my South Dakota business?
A "trademark" is generally a word, phrase, symbol, or design, or a combination of these, that identifies and distinguishes the source of the goods of one party from those of others.
Why start a business in South Dakota?
South Dakota is continually ranked as having one of the best business climates for business owners. These rankings show that South Dakota is a great place to earn money - and keep it.
A South Dakota business owner has a competitive advantage because our state has:
- No corporate income tax
- No personal income tax
- No personal property tax
- No business inventory tax
- No inheritance tax
What Are The New Opportunities For South Dakota Businesses Under The Tax Cuts And Jobs Act?
The most sweeping tax reform in 30 years was just passed by the House and Senate and signed into law by President Trump. What does the new law mean for South Dakota's businesses?
New Opportunities Of Course!
If you own a business or are thinking about starting one, relying on old "rules of thumb" or ignoring this monumental change in business taxation could mean paying enormous amounts of unnecessary taxes.
Many of the new, business-oriented deductions have specific rules to qualify. Although this bill has been the subject of intense media discussion, don’t rely on television programs, blog posts, or press releases. Instead, contact us so we can analyze how to maximize your benefits under the bill.
South Dakota Tax Law: What are "Above-the-Line" Deductions?
The foundation of yout tax bill is your gross income (the total of every dollar you were paid in a given year).
"Above-the-Line" are deductions you take before you get to your itemized deductions. If you put some of your earnings into certain tools - like a health savings account or a 401(k) - that money will be not be taxed now (if ever). These deductions are all taken "Above-the-Line" before you determine your Adjusted Gross Income.
You should note that many of your "Above-the-Line" deductions may be provided by your employer, so pay close attention to these company benefits.