Cover all angles Featured

9:52am EDT July 22, 2002

Q:What can I do to protect my company’s trademarks?

A: A trademark is typically a slogan, name, image or logo that is linked to a company’s goods or services. Two types of protection exist for a trademark — federal protection and common law protection.

Federal protection is obtained by registering your trademark with the U.S. Patent and Trademark Office in Arlington, Va. The filing fee is $245 per mark. The process takes about 12 months, but once your mark is registered, you have certain ownership presumptions, including placing a symbol next the mark.

Don’t assume, though, that simply because you’ve registered your mark with the USPTO that it is immune to infringement or cancellation lawsuits from third parties. It isn’t. So watch out.

Common law protection is obtained merely by using the trademark in any public dealings. Some companies place “TM” (for trademark) or “SM” (service mark) next to the trademark to let the public know the company claims ownership rights. Common law trademarks do not have the same ownership presumptions as those registered with the USPTO.

Q: My company sold some equipment to a customer five months ago. The customer still has not paid the bill. Can we repossess the equipment without going to court?

A: You can repossess the equipment if you obtained a security agreement from your customer and only if you can repossess peacefully. If you did not obtain such an agreement, your best avenue may be to file a lawsuit and repossess the equipment through the courts.

If you have a security agreement and the equipment is locked up or located in a hostile environment, you may file a “replevin” with the court and repossess the equipment by court order.

Q: One of my customers paid his invoice with a check. It came back marked NSF. What can I do?

A: Your customer may now owe you three times the amount of the check. In Ohio, passing bad checks is considered a civil theft offense. The offender may be liable for three times the amount of the check if the check is for more than $200. If the check is for less than $5,000, collection costs and reasonable attorney’s fees may also be included.

However, Ohio law states that you must send a letter to your client by certified mail, and it must contain specific language and warnings before you file any lawsuits. Pass your letter by an attorney to ensure it contains the proper language and meets Ohio’s requirements.

Q: I executed a contract with a customer which states that my customer shall pay me $1,000 per month for three years. However, the contract doesn’t state that upon default, all future payments come due. How could this affect me?

A: If your customer defaults, you could go to court and ask for all the payments currently due. But without the language stating that all of the future payments come due upon default, you can only obtain a judgment for the amount due at that time. You will have to go back to court every few months or so and ask for the payments due to be reduced through further judgments.

Q: If I sue another business for breach of contract, can I collect attorney’s fees?

A: It depends. If your claims are for breach of contract, you most likely cannot collect attorney’s fees unless the contract specifically states that attorney’s fees can be awarded upon a breach. Attorney’s fees have also been awarded in cases involving fraud, misrepresentation and contempt. In any event, courts will not award attorney’s fees unless the fees are reasonable.

Mary Beth Ciocco is an attorney practicing law in Rocky River. Submit questions or comments by telephone at (440) 333-5700, via e-mail at mbclaw@netscape.net, or at her Web site, www.clevelandlaw.net