How do you know if your trademark is infringed by others or vice versa? We need to look at a number of factors. A court will apply the “likelihood of confusion” test in a trademark infringement suit. This means that a court will analyze and weigh factors to determine if consumers are likely to be confused by the two marks. Let’s take a look at some of these factors.
1. STRENGTH OF THE SENIOR MARK
The senior trademark is the one that was registered first or used first. The more distinctive is the senior mark, the more protected it is. How to determine “distinctiveness?” Courts normally will consider whether it is generic (not distinctive), whether it is descriptive (normally not distinctive unless it required secondary meaning), whether it is suggestive (distinctive), whether it is arbitrary (distinctive), whether it is fanciful (distinctive), etc.
2. RELATEDNESS OF THE PRODUCTS
This means whether consumer would connect the two products in their mind. So, if the products compete directly and they are similar, then consumers could be confused. If the products are somewhat related but not competitive, then confusion will turn on other factors. If the products are totally unrelated, then confusion is unlikely.
3. SIMILARITY OF THE MARKS
This is a factor that the courts usually give greater weight. The court will look at the pronunciation, appearance, and verbiage of conflicting marks. It will look to see if the given mark would confuse consumers when viewed in isolation and in its entirety.
4. EVIDENCE OF ACTUAL CONFUSION
The existence of actual confusion is direct evidence and will be weighted heavily when there is evidence of sufficient past confusion.
5. MARKETING CHANNELS USED
A court will evaluate marketing channels used by the business of the marks, for example, what market the two products are sold in, the type of business involved, the advertisement, the location, etc.
There are other factors courts will consider. It is wise to research before adopting a trademark. Once you have a trademark, you should vigilantly protect it. Otherwise, goodwill and business may be lost due to similar marks competing for the same customers.
Attorney Lei Jiang is a licensed patent attorney and litigator. She has handled many patent and trademark applications. Moreover, she handles patent and trademark infringement cases in federal courts. Any question, please contact us.
Lei Jiang LLC, 2019. All rights reserved.
Increasingly homes have video and audio surveillance equipment. In the context of real estate buying and selling, is it legal for the seller to record the showing and what buyers and agents are saying about his property? In a more general setting, is it legal for one to videotape a meeting or record a conversation?
Ohio law addresses both audio and video recordings. Under Ohio law a seller is permitted to use surveillance equipment to video record on his property. However, there are some limitations on that. For example, a seller should not record in locations where there is an expectation of privacy, such as a bathroom.
Audio recordings have stricter requirements. Under Ohio law, in order to legally make an audio recording, at least one person being recorded must consent to the recording. So in a real estate context, in order to audio record conversations during a showing of a property, one of the individuals at the showing should consent to the recording. Since seller normally will not present during the showing, consent must be secured from buyer’s agent or the buyer.
In a general setting, if one is a party of a conversation, then audio recording is ok. If he/she is not a party, then consent must be secured from a party in the conversation.
Violations of the above law are a 4th degree felony under Ohio law.
Legal articles provided by Lei Jiang LLC are intended to provide broad, general information about the law and is not intended to be legal advice. Before applying this information to a specific legal problem, please seek advice from an attorney.
If you have any criminal case, please contact us.
Lei Jiang LLC, 2019. All rights reserved.
- New 20% Tax-Free Treatment
- Safe-Harbor Rules
- Opportunity Zones
- Paying Towards Retirement
Under the new tax reform, wholesalers, flippers, syndicators, real estate brokers, and real estate agents may all be eligible for a new 20% tax-free treatment. For example, if you have eligible taxable income of $1000, the first 20% of it ($200) may be completely tax-free. You would only pay taxes on the remaining $800. This will be a big saving. Be sure to utilize it. Details please see IRS Code Section 199A.
What hat about landlords and investors of short-term rentals? What about investors doing buy-rehab-rent-refinance? Those income potentially also have the ability to receive a 20% tax-free treatment. The IRS came out with some safe-harbor rules on what need to do in order to obtain that benefit. Check out IRS Code for more information.
Are you looking to sell your appreciated rental property but face capital gains taxes? Or are you looking to move money to real estate? Instead of paying taxes on the capital gains, you now have an “opportunity” with the brand-new Opportunity Zone laws to defer taxes on the gain.
Re-invest your capital gains within 180 days of the sale into qualified Opportunity Zone funds to defer your taxes. After holding onto the Opportunity Zone asset for five years, part of your deferred gain may to be permanently tax-free. Moreover, if you hold your investment for more than 10 years, 100 percent of the post-acquisition gain on the Opportunity Zone property may be permanently tax-free.
Please feel free to call us on whether a property is in an Opportunity Zone in Ohio. You should not miss this great opportunity.
Before the end of the year, make sure you talk with us or your tax advisor on ways to pay towards your retirement rather than to pay the IRS. You may be able to contribute up to $56K to reduce your tax bill and have that money grow for you tax-deferred in real estate assets. The best type of retirement account and the maximum amount you can contribute will depend on a few factors. Make sure to have a complete strategy before filing your taxes.
It is often said, it’s not just about how much money you make – it’s about how much of it you get to keep. Contact us for your real estate and wealth management questions.
Attorney Lei Jiang holds a US JD degree and studied LLM in US Taxation. She has been practicing real estate and business law since 2009 and since helped numerous real estate investors in all aspects of their ventures. Call (440) 835-2271 for consultation.
Lei Jiang LLC 2019 . All rights reserved.
New tax reforms changed real estate investors’ tax strategies in 2019. As a real estate attorney with extensive tax training, a broker, and an investor, I want to share some of the tax strategies you should know for 2019 tax.
- Deducting Interest Expenses
- Investment-Specific Interest and Taxes
- Bonus Depreciation
Deductions are not only rental related expenses like interest, taxes, management fees, but also include many overlooked legitimate deductions that are not property specific. Examples of commonly missed deductions are business related car expenses, business travel costs, business meals, education expenses, membership costs, real estate books, and home office. These expenses can add up during year and can help you save big tax dollars.
Under the new tax reform, interest related to home equity line of credit (HELOC) on the primary homes are no longer deductible. However, if you took out a primary home HELOC and used that money for real estate investments, you can still deduct the interest against the rental income or flip income. Make sure you inform your tax preparer/accountant about it.
Tax reform also places a new limitation on how much can be deducted for property taxes and mortgage interest on our primary homes. But these limitations do not apply to real estate investments. Therefore, be sure to talk to your tax preparer about it. Whether you are a landlord or flipper, you can generally fully deduct the interest and taxes for your investment properties.
On the up side, tax reform provided us with 100 percent bonus depreciation in 2019. So, if you are a real estate investor who is buying appliances, furniture, equipment, laptops, and other assets for your real estate business, you may be able to write off up to 100 percent of those costs immediately rather than depreciate them over many years. Moreover, bonus depreciation strategy can be used with or without a legal entity, and it can be used with new or used assets.
—To be continued.
Attorney Lei Jiang holds a US JD degree and studied LLM in US Taxation. She has been practicing real estate law since 2009 and helped real estate investors in all aspects of their ventures. Call (440) 835-2271 for consultation.
Lei Jiang LLC, 2019. All rights reserved.