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CHAPTER SIX - Legal Requirements When Organizing a Business

Introduction - The purpose of this chapter is to outline the most important legal requirements that a small business will face when organizing. There are some variations by state, which we could not reflect in this chapter, and therefore it is always advisable to communicate with the appropriate local taxing and regulatory authorities when forming a new organization. We will try and cover the key issues that should be considered.

Federal Licenses & Permits - Most businesses do not require special federal licenses or permits to operate. However, if you are involved with any of the following business categories you must contact the responsible federal agency to determine the specific requirements for your type of business:

- Broadcasting

- Drug manufacturing

- Ground Transportation

- Investment advising

- Preparation of meat products

- Selling alcohol, tobacco or firearms

State Business Licenses - Some states will require a license to operate your business, which is for their taxing purposes. Many states have established small business assistance agencies to help small businesses comply with state requirements. As a starter, contact the state Department of Taxation to determine your requirements. Some examples of the types of professions which require licenses are:

- Accountants

- Appraisers

- Auctioneers

- Barbers

- Bill Collectors

- Building Contractors

- Cosmetologists

- Funeral Directors

- Physicians

- Psychologists

- Real Estate Agents

- Private Investigators

- Private Security Guards

If you have a question whether your profession requires a specific license contact your state licensing authority.

State Tax Registration - If your state has a state income tax and you have employees, you have to register and obtain an Employee Identification number. You can apply for this from your state Department of Revenue or Treasury Department.

Federal EIN - You will be required to have a federal tax EIN in order to identify your business to the federal government. This can easily be obtained by calling 1-800-829-4933. You will be able to get your number over the telephone. You can also apply for this from the IRS website.

Trade Name Registration - Most states require some local registration of your business name. We generally suggest you contact the town clerk in your local community to determine the requirements for registering with the state.

Employer Registration - If you have any employees you will be required to file for unemployment insurance. Contact your state Department of Revenue or Department of Labor relative to the requirements in this area.

Patents, Copyrights and Trademarks - Virtually everyone has heard about these three terms, yet most people do not understand the differences and/or how to obtain each of the three types of protection. Let’s try and clear that up...

 A Patent applies to unique inventions, discoveries & process es, and is the most difficult of the three to obtain. The U.S. Patent & Trademark Office issues it. Essentially it is the right to exclude others from making, using, offering for sale or selling the invention -or even importing the invention into the U.S. To obtain a patent you must file an application with the U.S. Patent & Trademark office. It is generally very advantageous to have a patent attorney involved to lead you through this very complicated process.

 A Copyright is a form of intellectual property, and protects original artistic, literary, musical and dramatic work. Copyright exists the moment a work is created. Registration of a copyright is not mandatory. However, if you wish to bring a lawsuit for infringement of a U.S. work you will need to register the work. To register a work, submit an application form, a non refundable filing fee ($35-$50) and a non returnable copy of copies of the work to be registered to the U.S. Copyright Office (101 Independence Avenue SE; Washington DC 20559-6000. The application is form SL-35. One would indicate an intention to copyright by placing a © at the end of the document to be protected.

 A Trademark applies to a logo or other identifying mark related to the sale of goods. It also applies to a product or business name when used as an adjective, such as Apple laptops. Most people will use a trademark attorney to file a trademark for your intellectual property. While this is not required, a private attorney may help you avoid many potential pitfalls in the trademark application process. It is essential to search the USPTO database (/trademarks/basics/searching.jsp) before filing an application, as this will tell you if someone else already claims the rights to the particular mark through a federal registration. Should you choose to proceed with the application it can be done electronically using the Trademark Electronic Application System (http:www.uspto.gov.trademarks.teas.index.jsp)

Do I need a trademark? - There is no requirement that you have a trademark for your business, but it does protect the name from others using it. If you plan to operate only in a very local area there probably is no need to file for a trademark. However, if you plan to sell your product or service in a wide geographic area you should file for the trademark to protect this name. For additional trademark information you can email the Trademark Assistance Center usptoinfo@uspto.gov or telephone them at 1-800-786-9'9.

Confidentiality Agreements (NDAs) - Non-Disclosure Agree ment) - A major concern of many inventors is that their idea will be stolen by others with whom they have discussed it for the purpose of moving the idea forward toward commercialization. To help protect the inventor, it is useful to use a non-disclosure agreement, which any attorney can develop based on the needs of the inventor. Essentially this is a document that says that the party exposed to the idea will not share this information with others without the permission of the inventor, nor will they utilize the ideas presented in the document for their own use. This is a document that should be carefully crafted by an attorney to ensure that the inventor is adequately protected.

How To Deal With Attorneys - Almost any new business will have some interaction with attorneys during the formation or start-up process of the business. While attorneys are a very valuable resource for a new business entrepreneur, they also can be very expensive if not utilized properly. The following are a series of guidelines when working with attorneys that should improve both the efficiency and quality of the relationship.

 Be prepared when meeting with your attorney so time is not wasted getting you (and them) organized. This includes under standing what the goals are of your meeting and having the appropriate paperwork and facts available to facilitate the process.

 Be aware that attorneys generally charge in six minute intervals, so keep the small talk down to the minimum. Try and get right down to business rather than talking about things that are not related to the problem at hand.