To determine if two or more of your small businesses should be counted toether, factors such as common management, interrelation between operations, centralized control of labor relations, and degree of
common ownership or financial control are considered.  For example, if you own a recruiting agency and a restaurant, they are probably distinct.  If you own several companies related to construction, the FMLA may apply to all of the related businesses even if none of them meets the size criteria individually.

The FMLA lays out very specific rules and tests for determining business
coverage and employee eligibility.  You should consult your attorney to
find out more about your responsibilities under the FMLA.

Arbitrary and suggestive marks are inherently distinctive and receive the most legal protection.  By definition, arbitrary marks are not logically related in any way to the underlying product or service.  For example, they could be words invented specifically to serve as a mark (e.g. Pepsi), or they might be everyday words used in an unexpected way (e.g. Glad trash bags).

Suggestive marks, on the other hand, bring to mind some characteristic of the good or service but do not describe the product literally  (e.g. Mustang cars, Coppertone sunscreen).  Some businesses choose a suggestive mark rather than an arbitrary mark in order to create a positive association for the underlying product/service while still taking advantage of robust legal protection.

A descriptive mark contains language which describes the underlying product (e.g. All Bran).  Descriptive marks are generally weak and will not convey much legal protection unless consumers have come to associate the mark primarily with the underlying product or service.  When customers make this association, the mark is said to have gained a “secondary meaning.”  A descriptive mark with a “secondary meaning” then becomes a strong mark, but it can take a great deal of marketing in order to reach that point, and the secondary meaning is sometimes only applicable to certain geographic areas.

Finally, some marks cannot be trademarked at all.  A generic mark, for example, is a proposed mark that actually describes the category of the product or service broadly (e.g. Cup for a cylindrical, hollow item that holds liquids).  Other marks that may be rejected by the federal registry include marks that are confusingly similar to other marks, immoral/scandalous marks, geographic locations, reserved or prohibited words or names (according to federal lists), and surnames.

Deciding on a strong name for a product, service, or company is important, so you should consider discussing the availability and strength of potential names with an attorney before investing in marketing.

Most financing agreements contain cross-acceleration provisions, such that one acceleration will trigger accelerations of all other outstanding loans as well.  Since most companies do not have sufficient capital or credit to pay all of their outstanding loans ahead of schedule, acceleration will frequently push a company into bankruptcy.

Because acceleration has such profound consequences, most troubled financings are worked out via negotiation and compromise when the borrower defaults under some of its obligations.  Waivers and waiver fees are far more common than acceleration, but the right to accelerate gives the lenders a great deal of leverage in any default situation.

If the terms are insufficiently clear (is “my grass” just the street-facing portion of the property?) or the mower rejects any part of the offer, then there is no contract.  For example, if the mower says, “Okay.  How about Tuesday?” then a court could decide that he rejected the first offer and made a counter-offer of mowing on Tuesday for $20.  Even though “Okay.  How about Tuesday?” might have been meant as an acceptance, it does not necessarily create a legal contract.

Because it  is difficult to prove whether or not there was a meeting of minds on all of the terms, and people are often forgetful about the actual words that were said, verbal contracts can be very extremely difficult to enforce.  This is why important contracts are almost always carefully spelled out in writing with review by legal counsel.

This type of financing is generally used for large, complex single-purpose projects, including power plants, airports, chemical-processing plants, mines, and toll roads. Because there is no recourse to the parent companies, and the term of the loan usually covers the entire useful life of the project, the lenders must review the details of the project very carefully to confirm that it is likely to generate the anticipated amount of profit.

For example, if a wind energy project is project financed, reviewing the 20-year economics of the project is only the beginning.  The lenders would also inspect every real estate easement to ensure that there are no gaps in land use rights and review the project’s grid interconnection rights. In most cases, lenders require guaranteed revenue, such as a 20-year power purchase agreement from one or more electricity buyers, although in deregulated markets, revenue can be guaranteed via long-term commodity hedging. The lenders would also have to review all business permits and environmental licenses, confirm that the plant equipment has a 20-year maintenance contract, and make sure that the project is insured for the full amount of the loan in case of an industrial accident. If there is a default on the loan at any time during the life of the project financing, the lenders will find themselves as the new owners of the project, so project financing involves much higher levels of advance research and lifetime restrictions than most financings.

The most common real-world example of subrogation is in car insurance.  If you have a car accident, and your insurance company pays you $5,000 as compensation, the terms of your insurance agreement will grant subrogation of your rights.  Now your insurance company has the right to step into your shoes and sue the other driver for any amount they are able to recover, whether it is more or less than $5,000.

Another common business example is in debt collection.  Businesses with aged accounts receivable frequently sell those receivables to collection agencies.  The collection agency will pay the business a percentage on the dollar, and in return it will have subrogation rights to seek full payment from the debtor.  Subrogation entitles the collection agency to use any remedy against the principal which the original creditor could have used, and to enjoy the benefit of any advantage that the original creditor had, such as a mortgage, lien, power to confess judgment, any right to follow trust funds or any right to proceed against any relevant third person (such as a co-signor).

A trade secret is the opposite of a patent.  When an inventor submits a patent application, all information relevant to the patent becomes publically available, but the government enforces a monopoly for a specified time period (20 years in the United States).  In contrast, the foundation of trade secrets is secrecy, and there is no limit on how long it can last.  If the secret is inadvertently disclosed or discovered, there may not be legal protection, especially if the company did not take sufficient steps to protect its secrets. If the company demonstrates a commitment to protecting its secrets, however, and the secrets are disclosed or discovered through inappropriate means, the company may be able to seek damages.

In choosing between trade secrets and patents, some choices are driven by necessity (not everything is acceptable for patent) while others are driven by the desire to maintain a monopoly for longer than the patent-protected period.  In order to build a foundation of confidentiality and maintain its property rights, a company needs to be knowledgeable and proactive.  If a company does not take appropriate steps to protect its trade secret rights, it can lose them.

In an asset sale, the old owner keeps the bucket but hands over individual items to the new owner’s bucket.  In other words, ownership of the company stays with the old owner, and only certain assets are sold to the new owner. The new owner would have to be very careful to make sure that all assets necessary to the functioning of the business are positively identified in the transaction documents. This can be an exhaustive process because it involves capturing all intellectual property, each business contract, and all operational licenses. Some assets may be difficult to transfer to the new owner, such as government licenses. For major business contracts, third parties may have an approval right over whether the new owner can replace the old owner, and in some cases the third party may use this approval right as leverage to renegotiate the terms of the contract. Conversely, the old owner would have to be careful to make sure that its liabilities have been cleanly transferred away unless the parties specifically agreed that some liabilities (such as a pending lawsuit) would stay with the old owner.

There are advantages and disadvantages to both sale structures, and they will usually have different tax implications. You should consult an attorney to determine what type of transfer would be appropriate for any individual company’s set of circumstances.

Also called a choice-of-law clause or a forum-shopping clause, a forum-selection clause is defined by Black’s Law Dictionary as “a contractual provision in which the parties establish the place (such as the country, state or type of court) for specified litigation between them.”

In real-world transactions, nearly every standard business contract includes a forum-selection clause specifying which court the parties would go to in order to file claims over anything related to the contract. For a businessperson, one obvious reason to check the forum-selection clause in every contract is to be sure you do not unknowingly agree to litigate in a far-off or inconvenient location. Because different states have different laws, the choice of forum will also apply different laws to legal claims. Depending on the importance of the contract, it may be a worthwhile investment to have your attorney research the law of the different possible jurisdictions and let you know if any forum is particularly advantageous or disadvantageous. Some forums, for example, emphasize consumer protection more than others.