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.
- 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.
On August 23, 2015, Ms. Zheng and several others, as representatives of a class, filed a class action at U.S. District Court Northern District of Ohio against the biggest online real estate investment portal in China SouFun Holding Ltd. and SouFun International Ltd.
The complaint alleged fraud, violation of Ohio Deceptive Trade Practice Act, violation of Ohio Consumer Sales Practice Law, violation of Ohio real estate law, unjust enrichment, and breach of fiduciary duty. Lei Jiang Law Firm represents Plaintiffs and the class.
Since this is a case involving international parties, the service was a challenge because it must go through Hague Convention service of process. Plaintiffs successfully perfected the service through Hague Convention.
Major Chinese media in China and U.S. have reported this case. The case is closely watched by many due to the ever increasing trend of Chinese investing in U.S. and global real estate.
For report from the People’s Daily, the official media, click here.
Reports from the biggest Chinese media (in Chinese) QQ, Sina, SOHU, NETEASE.
Reports from the biggest U.S. Chinese media (in Chinese) USChinaPress， 中金在线.
One more criminal case against our client was dismissed on September 16, 2016. The case 2016 CRB 661 involved a charge of prostitution. Such charge, if established, would destroy the client’s life since she is a young woman.
We are committed to maximizing the chances of winning your case, even when it means beating the odds. In this case, prosecution claimed to have video and undercover police as witnesses. But after careful review of the evidence, we believe that the case was not as strong as the prosecution would like us to believe. After negotiation, the prosecutor dismissed the case against our client. Our client was thrilled.
If you are facing criminal charges, please contact us. The initial consultation is free.
To keep the government running, the Congress has just approved another stopgap continuing resolution, which means that the EB-5 program will remain for most of the 2016. However, it has been widely anticipated that legislation in some form will be enacted shortly to renew and reform the Program.
The current EB-5 program, which offers a family-sized set of green cards to foreigners who directly invest $1 million, or invest $500,000 into targeted employment areas (“TEAs”), has been very popular among Chinese investors in recent years.
Under the proposed legislation, once passed, the minimum investment amount in rural and high-unemployment areas would be increased from $500,000 to $800,000. For the investment projects that already had I-924 and I-526 approvals, they will enjoy a 60-day grace period. Thus, if investors submit the application within 30 days of the effective date of the new legislation, the investment amount is $600,000; between the 31st day and the 60th day, the amount is $700,000; and starting the 61st day, the amount will be adjusted to $800,000. Investment to non-TEAs will be adjusted to $1.2 million.
Also, the new legislation will redefine what constitutes the TEA. TEA designation will be tightened up. Further, the new legislation will allot a certain number of visas to different investment categories, such as 2,000 visas for projects in rural areas and 2,000 visas for people who invest $1 million, while the total number of visas remains the same.
Finally the new legislation will require more disclosure regarding how the capital is being utilized, and investors’ source of funds. The current EB-5 program has been under fire when 35 Chinese investors who lost nearly $20 million in South Dakota’s EB-5 program sued the state for fraud.
Although investors can be relieved for now, changes are likely to come. Our firm will monitor closely of any development. Let’s sit tight and wait for what is coming. Please contact us for any EB5 questions.
On May 19, 2015, we received a great news from U.S. Citizenship and Immigration Services (USCIS) that our application on behalf of a client for a regional center designation was approved. USCIS approved our application in less than a year and without any requests for evidence (RFE). This is very rare, and shows that our application is of the finest quality.
At Lei Jiang LLC, we routinely file various immigration applications and petitions. Our success rate has been approaching 100% (excluding cap related limitations and back log issues). We carefully prepare each application, provide additional documents, and explain clearly and concise about the issues to USCIS. As a result, the applications prepared by our firm have a measurable advantage over applications prepared by others.
EB 5 immigration is said to be the most complex area of immigration law. It is called “the cream of immigration law.” Setting up and providing legal service to a regional center is deemed to be the cream of the crop. Yet, with skills and determination, the attorneys at Lei Jiang LLC have achieved remarkable feat in a relatively short period of time.
For any immigration issues, please feel free to contact us. The initial consultation is free.
Question: What is the difference between Regional Center and a direct investment? What are the pros and cons of each? Can the EB-5 investor be limited in the legal exposure/management of the project, such as is often the case defined by being a limited partner in an indirect EB-5 investment through a Regional Center?
Attorney Lei Jiang: The main difference is that a regional center can utilize indirect job creation while a direct investment cannot. Moreover, direct investment normally requires more involvement from investors. Regional center projects, on the other hand, have a team of professionals. So investors are all passive investors.
Question: Why does I-924 takes from targeted 4 month to 9 month? What are the reasons for this delay?
Attorney Lei Jiang: I-924 normally takes 9 month or longer. USCIS wants to be careful but lack of officers. So it is backlogged.
Question: Do I submit my project directly to a Regional Center? I am a real estate developer in Indianapolis. I have a project in Chicago which will generate 50 new jobs and the project total cost is $10 million.
Attorney Lei Jiang: You should contact Chicago regional centers to see if they are interested in your project.
Question: Do you need to have an EB-5 Project in order to start your own Regional Center? I want to know the requirements to start a regional center myself, and if I need to have a project ready before applying to become a Regional Center?
Attorney Lei Jiang: No. You do not need an actual project for regional center application, but as part of the application, you need to submit a hypothetical/exemplar project plan.
Question: I have a project but I don’t want to wait a year or so to get a regional center designation. Can I purchase an existing one? Would I need an immigration lawyer to help me in the transaction if it is possible?
Attorney Lei Jiang: Yes, you can if a regional center agrees to sell. Alternatively you can “rent” one. You do not need immigration attorney for this transaction but it is good to have one. You need to understand immigration issues.
Question: Does your law firm offer the service of establishing a regional center? And approximately how much would it cost for this service? Thanks.
Attorney Lei Jiang: Yes we do. It normally runs around $80,000 to 120,000. There are many other law firms offering such service.
Question: What is the benefit of investing in an EB-5 Regional Center as opposed to going with a direct investment in an EB-5 project?
Attorney Lei Jiang: You can utilize an economic model for job calculation. 10 required jobs for every investor (normally with $500,000 investment) is difficult to achieve for many business ventures.
©Lei Jiang Law Firm 2014.
Question: I am planning to invest in my own project but it might not create 10 direct jobs in 2 years. There is a Regional center in the same area with a similar project. How could I work with the regional center and create a structure to leverage their ability to include indirect jobs?
Attorney Lei Jiang: You need to talk to them. One benefit of using regional center is that you can count indirect jobs.
Question: Why do Regional Centers use mezzanine financing? Isn’t mezzanine financing risky?
Attorney Lei Jiang: This kind financing is commonly used in real estate. Since most regional centers have real estate projects. You should not be surprised by this type of financing.
Question: What would be an applicant’s position if EB5 pilot program is not renewed (Sept 2015) after approval of his I-526? Would all rights to obtain residence be lost? Could an investor sell his investment immediately to reclaim funds?
Attorney Lei Jiang: It’s unlike that the program will not be renewed. Whether the investor can sell his investment or not depends on the subscription agreement and other legal documents that he has signed. Investors should always read these legal documents very carefully and/or seek professional help.
Question: What is the process for filing a complaint against a Regional Center for fraud? I am a project sponsor who paid a non-refundable deposit to a firm representing itself as an established Regional Center. The Regional Center I wish to file a complaint against is the parent of the firm we paid, but wasn’t an approved center at the time of payment. Also, how do I access the date on which a Center was approved? The USCIS website does not list that information, and my email inquiries to them have been rejected.
Attorney Lei Jiang: All approved centers are listed on USCIS website. So if a regional center has not been approved, it will not be on the USCIS list. Normally you can file a lawsuit (complaint) in a common pleas court or a federal district court which has the jurisdiction of this company. You need a lawyer for that.
Question: My main goal is the preservation of my capital. What are the chances that the regional center does not return the principal? Do regional centers return the full principal I’ve invested with them at the end of the 5 or 6 year period? How often do they fail and how can I find the regional center which has no failure record.
Attorney Lei Jiang: Do your research and talk to EB5 attorneys (they know the regional centers)! It’s just like other investments (stocks, bonds, etc.).
Question: How do you go about using an EB5 Regional Center to fund a project, without becoming designated as a regional center yourself? I have a business in Colorado and have researched the EB5 program. Once I find a regional center whose designation I may use, who does the reporting to USCIS and do I have to do a business plan and economic impact study to work through the regional center. What does the Regional Center have to provide the USCIS with if a third part project is using its designation?
Attorney Lei Jiang: You need to talk to the regional center to see whether you can utilize it and how to do it. Business plan and economic report are needed for immigration petitions.
©Lei Jiang Law Firm 2014.
Question: I want to invest with EB-5 regional center so that investment is only $500,00. But I do not understand what a regional center is. Is a regional center a global company or a U.S. company? Does each regional center correspond to a specific project center or institution?
Attorney Lei Jiang: a regional center is a U.S. business which invests funds in projects in U.S. It is approved by USCIS so it can attract foreign investors. It is not an institution or governmental entity.
Question: I have a green energy project I’ve been trying to get up and running through EB-5. But it takes so long to get approved as a Regional Center, I don’t have the time. Can I buy a Regional Center? In the long run, is it better to buy a Regional Center or simply work in junction with one?
Attorney Lei Jiang: Yes, you can buy or work with a regional center. It’s difficult to say which approach is better. Each has its pros and cons. Initial investment for setting up a regional center is big, but if it’s successful, in the long run, you can recoup all expenses plus profits.
Question: Assuming Company headquartered in the US and majority shares held therein, might a Regional Center have the right to invest in projects outside US jurisdiction?
Attorney Lei Jiang: It will be difficult. How do you generate 10 U.S. fulltime jobs for each investor ? And each investor will have to invest $1 million since it is not even in U.S. Question: Does USCIS provide any foreign investor leads to Regional Centers, i.e. when foreigners make inquiries directly with USCIS, how does USCIS handle those inquiries; does it refer prospective investors to Regional Centers? If no, what is the disposition of such inquiries? If yes, what criteria is used to determine which Regional Center such inquiries will be referred to? Please provide with a list of Features and Benefits (as well as negatives, if possible) of becoming a USCIS Regional Center. I operate a boutique hedge fund which conducts most of its business cross-border and have worked nearly exclusively on this basis for > 20 years.
Attorney Lei Jiang: USCIS will not make any referral. The list of approved regional centers is on USCIS website. That is pretty much all the help you will get from USCIS. The main benefit of regional center over direct investment is that RC can count indirect jobs.
Question: Can a regional center, or those working on its behalf, charge a commission (i.e. 10%) on top of the $500,000 investment made by the person seeking the EB-5 visa?
Attorney Lei Jiang: Commission is normally paid to agents/broker. 10% commission is on the high end. Regional center will charge a management fee though.
Question: If our business plan is to build and operate a hotel, what specifically can we count as an indirect job if we become a Regional Center? Do construction jobs count as direct or indirect? If we hire consultants, do those jobs count for the total of 10? Does it matter how many of the jobs we create are direct? ID:496 Attorney Lei Jiang: Direct jobs come from counting W2. Indirect jobs mean that even a regional center does not hire a required number of employees, based on an economic model, it will create certain number of jobs. When you apply for a regional center, you will have to hire an economist. Economic report will tell you exactly how many indirect job your project will create.
©Lei Jiang Law Firm 2014.