Registration of a trademark, although not mandatory, is recommended because registration can substantially expand the common law rights of a trademark owner. A trademark may be registered federally at the USPTO if used in interstate commerce. Moreover, a trademark may be registered at the registration office in any of the 50 states where used.
In general, state registrations offer only limited additional benefit over no registration. A state registration in a particular state can accord standing to sue in that state’s courts of law, pursuant to corresponding state statutes. Further, a state registration can aid in proving priority of use. However, state trademark laws, and especially the level of protection accorded trademark owners by state trademark laws, vary widely from state to state.
Federal registration of a trademark at the USPTO is strongly recommended because federal registration provides nationwide rights. Federal registration expands common law trademark rights in at least the following ways:
Nationwide Rights
(a) Nationwide Rights – Under U.S. common law, rights extend only throughout the geographical areas where the mark has actually been used or become known. A junior party in a remote location can adopt a senior party’s mark for identical goods or services and successfully defend against an infringement claim on the basis of good faith, ignorant adoption. Under these circumstances, the junior party can even claim superior rights in its own territory and prevent the senior party from expanding use into the junior party’s territory. However, if the senior party’s mark is federally registered at the USPTO, then the good faith, ignorant adoption defense is unavailable to a junior user in an infringement suit because the junior party is on legal, constructive notice nationwide.
Federal Jurisdiction
(b) Federal Jurisdiction – The federal registration at the USPTO creates federal question jurisdiction for infringement suits. Hence, a federal registration accords standing to institute lawsuits against parties in federal court. This can be a tremendous advantage. Trademark suits in federal courts minimize any prejudice that might be experienced by a litigant who is foreign to a particular geographical region. Moreover, the outcome of federal trademark suits is more predictable than in-state trademark suits because of the extensive federal case precedent that has developed over many years.
Significant Value As Court Evidence
(c) Significant Value As Court Evidence – A federal trademark registration can be strategically useful in court. First, a certificate of federal registration is prima facie evidence in a court of law of the registrant’s ownership right and exclusive right to use the mark throughout the territories of the United States. Second, the registration certificate is prima facie evidence in a court of law of the registrant’s continuous use of the mark in commerce from at least as early as (1) the filing date of a “use” application or (2) the alleged use date in an “intent to use” application. Third, many court cases have held that a federal registration is presumptive evidence that the mark, even if arguably descriptive, is distinctive. The rationale for this presumption is that the mark has been determined to be registrable by the expert administrative agency, or the USPTO. This possible presumption may eliminate the need to prove secondary meaning in a court case. Finally, the right to use a registered mark may become “incontestable” in a court of law after five years of use, if proper documentation is filed at the USPTO. This incontestability eliminates important defenses from infringement actions, such as lack of distinctiveness and lack of secondary meaning.
Federal Statutory Remedies
(d) Federal Statutory Remedies – Federal statutes prescribe recovery of profits, damages, and costs, as well as equitable relief in the form of injunctions and seizure orders. Even treble damages and attorney’s fees can be obtained in exceptional cases.
Trademark Counterfeiting
(e) Trademark Counterfeiting – The Trademark Counterfeiting Act of 1984 creates very substantial civil and criminal penalties for the counterfeiting of federally registered trademarks.
Customs Recordation
(f) Customs Recordation – The federal registration can be filed in the U.S. Customs Service to prevent importation of goods bearing the infringing mark into the United States.
Deterrent Effect
(g) Deterrent Effect – A federal registration is very likely to be uncovered during a clearance search, which is usually performed by a junior party before adopting a new mark. Notice of the federal registration tends to deter junior parties from adopting confusingly similar marks which otherwise could be infringements.
Offers in Compromise – I.R.S. Debt Collection Alternatives
If you cannot afford to pay the full amount of your tax debt owed to the Internal Revenue Service (“I.R.S.”), or do not believe that you legally owe such debt, there may be collection alternatives available to you. One of these alternatives is the Offers in Compromise.
What are Grounds to Submit an Offer in Compromise?
An offer in compromise allows the I.R.S. to accept less than the taxpayer’s full tax liability as settlement of the debt owed. There are three grounds upon which a taxpayer may submit an offer in compromise: (1) doubt as to collectability; (2) doubt as to liability; or (3) effective tax administration.
What are Offers based on Doubt as to Collectability?
For an offer in compromise based on doubt as to collectability, the taxpayer must be unable to pay the full amount of the debt. The I.R.S. will instead accept an offer that is equal to or in excess of the reasonable collection potential. The reasonable collection potential is utilized by the I.R.S. to calculate the amount a taxpayer is able to pay and looks at assets, property, and future income. However, if there are special circumstances that make it appropriate for the I.R.S. to accept less than the reasonable collection potential, such as full payment of the reasonable collection potential causing economic hardship, the I.R.S. may take these circumstances into consideration and accept less than the taxpayer’s reasonable collection potential.
What are Offers based on Doubt as to Liability?
For an offer based on doubt as to liability, there must be a genuine legal dispute as to the amount owed by the taxpayer. This offer is submitted when a taxpayer legitimately believes that he or she does not owe all or part of the assessed tax debt. For instance, the I.R.S. provides the example of a taxpayer missing a meeting with an auditor due to a natural disaster and having all expenses disallowed (even though he had appropriate documentation) as an appropriate use of the offer based on doubt as to liability.
What are Offers based on Effective Tax Administration?
Offers based on effective tax administration may be accepted on one of two grounds – effective tax administration or public policy concerns. To present an offer based on effective tax administration on either basis, the taxpayer must be able to pay the balance in full. For an offer based on an economic hardship basis, the I.R.S. will accept such as offer if collection of the full amount owed would cause the taxpayer economic hardship. Economic hardship occurs if payment of the debt in full would result in the inability to pay necessary basic living expenses.
What are Offers based on Public Policy?
Offers based on public policy concerns are granted very rarely and are subject to a very steep burden on the taxpayer to demonstrate that the circumstances are compelling enough to justify compromise even in the light the inherent inequity of granting such an offer. For instance, acceptance of an offer based on public policy concerns may promote effective tax administration where the I.R.S. has made a processing error, the taxpayer relied on incorrect advice from the I.R.S., or where there has been unreasonable delay by the I.R.S. Additionally, fraudulent or criminal acts by third parties will be considered as well as the effect that rejection of the offer would have on the taxpayer’s community. However, it must always be kept in mind that public policy concerns do not encompass situations where the taxpayer believes that the tax law itself is unfair; there must be some kind of extraordinary circumstances related to the taxpayer’s individual situation.
Offers of any kind can either be a lump sum cash offer or a periodic payment offer. Lump sum offers are payable in not more than five installments within five months of acceptance of the offer and must be submitted with a payment of 20% of the total offer amount. Periodic payment offers are payable in more than five installments and cannot exceed a total of twenty-four months.
A trademark is any word, name, symbol, or device used to identify the source or origin of goods/services and to distinguish the goods/services from others. In essence, a trademark designates a particular quality and reputation, which are developed over a period of time. When a source indicator is used in connection with the provision of services, it is called a service mark; a service mark is otherwise identical to a trademark, but because of historical legal concepts, the two are still differentiated. With many products, a trademark can be of extreme value. The use of trademarks goes back at least to the early Egyptians.
What can a Trademark protect?
The overall image of a product, including its packaging, configuration, design, or overall impression, can sometimes be protected as a trademark and is referred to as the “trade dress” of the goods/services. Examples of trade dress include the unique design of the Coca Cola bottle and the pink color of Owens-Corning fiberglass.
Trademark rights for a mark can prevent others from using similar marks on goods/services that would confuse the public as to the source or origin of the goods/services. A number of factors are considered when determining whether there is a likelihood of confusion. Among the factors are the similarity of the marks, the similarity of the goods/services, and the strength of a mark. Just as with patents, a mark may infringe another without actual copying. However, if copying is proved, enhanced damages (perhaps, treble) can be received. Moreover, although trademark rights may be used to prevent others from using confusingly similar marks, they cannot prevent others from providing or selling the same goods/services under a non-confusing mark.
If you cannot afford to pay the full amount of your tax debt owed to the Internal Revenue Service (“I.R.S.”) at once, there may be collection alternatives available to you. One of these alternatives is the Installment Agreement, also referred to as a Payment Plan.
How to Apply for an Installment Agreement
An Installment Agreement allows you to pay any debt you owe to the I.R.S. over time as opposed to a lump sum payment. To apply for an Installment Agreement, you must file a Form 9465 Installment Agreement Request. However, if you owe less than $50,000, you may apply for an Installment Agreement online instead. If you owe more than $50,000, you must also complete a Form 433-F Collection Information Statement providing detailed financial information. Any amount of tax liability may be considered for an Installment Agreement; there is no minimum or maximum amount that must be owed to qualify.
Acceptance Determination
In determining whether to accept a Payment Plan, the I.R.S. is directed to consider actions that are least intrusive to you as the taxpayer while still meeting the needs of the I.R.S. In determining whether to accept an Installment Agreement, the I.R.S. looks at whether the agreement accurately reflects your ability to pay over the proposed term of the Installment Agreement. To make this determination, the I.R.S. will look at your disposable income and any assets available to you. If you have assets that could be liquidated or borrowed against in order to provide full payment of the amount owed, the I.R.S. will first look at these assets. However, the I.R.S. will take into consideration any special factors such as health, age, or use of the asset for income production or family welfare to determine whether it is possible to liquidate or borrow against any such assets.
How much does it cost to enter into an Installment Agreement?
Fees charged as a result of entering into an Installment Agreement will vary depending on the length of time of the agreement. A short-term Installment Agreement requires full payment within 120 days. Under the short-term option, no extra fees are incurred, but interest and penalties will continue to accrue until full payment is made. Under a long-term Installment Agreement, the debt owed will be paid in monthly increments extending beyond the 120 days allowed by the short-term option. There are two payment options for the long-term Installment Agreement and the fees vary with each. The first option requires you to pay through direct deposit and charges a $31 fee if you apply online and a $107 fee if you apply by phone, mail, or in person. The second option allows you to pay by making a monthly payment from your bank account, online through the Electronic Federal Tax Payment System, or by monthly check, money order or debit or credit card. Additional fees will be incurred when paying with a debit or credit card. Appling online under this option will result in fees of $149 while applying by phone, mail, or in person under this option will result in a fee of $225. Once again, no matter which option you choose, penalties and interest will continue to accrue until payment is made in full. However, you may apply for a reduced fee based on your status as a low-income taxpayer by filing I.R.S. Form 13844. A low-income taxpayer is an individual whose gross income is at or below 250% of the U.S. Department of Health and Human Services poverty guidelines.
Notice of Federal Tax Lien
However, it must be remembered that during the term of the Installment Agreement, penalties and interest will continue to accrue. Further, a Notice of Federal Tax Lien may still be filed as well as the possibility of a levy if the agreement is later terminated. A Notice of Federal Tax Lien informs other creditors that the government has a right to the property contained within the notice. A tax lien is just a claim against the property by the government; it does not mean that this property is being taken at that time. A levy, on the other hand, is when the I.R.S takes the property to satisfy the tax debt. For instance, if the I.R.S. levied your wages, the amount of the levy would be directly taken out of your wages every paycheck and delivered to the I.R.S.
What is the Penalty Reduction from an Installment Agreement?
There may be additional benefits to entering into an Installment Agreement besides the ability to pay your tax debt over an extended period of time. For instance, entering into an agreement may allow for your failure to pay penalty to be reduced if certain conditions are met. To qualify for such a penalty reduction, you must timely file your tax returns, enter into the Installment Agreement on or after January 1, 2000, be an individual taxpayer, and previously not had the failure to pay penalty increased to 1%.
Once approved for an Installment Agreement, the I.R.S. will send you an Annual Installment Agreement Statement each year providing the beginning balance, an itemized list of payments, penalties, and interest, and the ending account balance for the year.
In response to the COVID-19 pandemic and in furtherance of the goal of keeping families in their homes during this unprecedented time, the Emergency Rental Assistance program was designed to help individuals who are unable to make rental or utilities payments. The United States Treasury has paid out a total of $46.55 billion under two programs (ERA1 and ERA2) to states, territories, and local governments to be utilized for this purpose. Not only are these payments available for rent and utilities, but these payments can also be utilized for emergency rental assistance resources, security deposits and application fees, working with the courts in order to facilitate eviction diversion programs, paying past due rental payments, and helping currently homeless individuals gain access to housing.
Individuals may qualify for these payments by providing documentation of the following information: (1) they are obligated to pay rent on a residential dwelling; (2) one or more individuals within the home has qualified for unemployment benefits, experienced a reduction in income, incurred significant costs or financial hardship as a result of the COVID-19 pandemic, or demonstrate a risk of homelessness; and (3) either, depending on the program, the household income is less than or equal to 80% of the median income for the area or the household qualified as a low-income family under 42 U.S.C. § 1437a(b). Individuals may apply for assistance through their applicable state program. For instance, residents of Tennessee (other than Knox, Davidson, Rutherford, and Shelby County residents) must apply through the Tennessee Housing Development Agency, while residents of the counties listed above must apply through their individual county’s program. Residents of Knox County must apply through Knox Housing Assistance.
Pursuant to guidance issued by the I.R.S. on May 18, 2021, payments received by tenants as part of the Emergency Rental Assistance program will not be included in gross income. These payments are not included regardless of whether used for rent, utilities, or home energy expenses, or whether such payments were made directly to the tenant or to the landlord or utility provider. However, payment received on behalf of a tenant are still includable in the gross income of the landlord or utilities provider.
