With most businesses, trademarks and copyrights have become an integral part of company assets and goodwill. No longer is a mark or logo just a symbol of a company. Names and logos are now assets attaining goodwill and providing name and/or product recognition and revenue. Most companies are familiar with the concept of a trademark. This is due in part to the company widely utilizing its name for recognition within the industry and with clients. Unfortunately, the majority of companies have not properly protected their trademarks and as a result, these companies are not utilizing valuable statutory protections. Similarly, literary and/or visual arts works are often not protected to the fullest extent of the law, again causing a lapse in copyright protection for an entity's assets.

If your registered mark is used illegally by others, statutory damages are available. By statute, any unlawful distribution, reproduction, or manufacture of a registered trademark or copyright, provides the owner with the option of seeking actual damages and statutory damages. Statutory damages can be anywhere from $500 to $20,000 for a simple violation to up to $100,000 for a willful violation. The court can also assess court costs and attorney fees. More likely than not, the statutory damages and attorneys fees well outweigh any actual damages.

Don't hesitate to take appropriate legal steps to protect your company's trademark.

As a business owner you must always remember that executing a written contract with key provisions is the most essential element in a successful business transaction. The best way to prevent a dispute in any transaction is to have the parties intentions reduced to writing.

Once a dispute has arisen, it can be very costly, frustrating, time-consuming, inconvenient and difficult for parties to agree on a resolution. Thus, no matter what type of business transaction is being contemplated, a written contract with well-crafted provisions to protect your company's interests is absolutely necessary. Although, some business transactions may be fairly simple, a missing key provision can lead to litigation costing more than the business transaction itself. On the other hand, a relatively complex business transaction can go awry if the provisions that are included happen to be vague, ambiguous, or incomplete.

The Hazard of Form Contracts
Knowing you need a contract and living in today?s information age, you may be tempted to download a form contract from a website. Although convenient, such contracts may not always be the smartest decision for a business-owner. Occasionally, for a simple business transaction, a form contract may suffice; however, there are a few major problems with form contracts you need to keep in mind.

First, the biggest flaw with form contracts is that they are extremely generic. A form contract may not necessarily conform to the state's laws in which the transaction is taking place. Certain provisions may be unenforceable under state law which could make the entire contact unenforceable.

Second, a form contract may not completely and clearly express the true intention of the parties. It will contain generic provisions, but it will not contain the specific clauses that are peculiar to the business transaction. A party may add specific language to express the true intention of the parties; however, once again, the language that is added may be vague, ambiguous, or incomplete.

Finally, with a form contract that has specific language added to it, the party who adds the language is in a very vulnerable position in the event there is a contractual dispute. Contract law states that any ambiguity or vagueness in a contract is interpreted by the Court against the party that drafted the contract. Thus, this may lead to an unfavorable interpretation against your company if you drafted the contract or provided the form.

Therefore, in any business transaction, it is absolutely necessary to finalize the parties' agreement by executing a well-drafted written contract. It is fundamental to have the necessary contract provisions to protect your economic interest at stake. With the assistance of an attorney who has experience in drafting and negotiating business contracts, a business-owner can be assured that many potential problems may be avoided, such as, delivery of non-conforming or untimely goods, responsibility for attorney's fees, excessive damages with no limitation of liability, an unfavorable state's choice of law, or an inconvenient venue to litigate the dispute. Ultimately, all of these issues will result in costly and lengthy litigation that may have been preventable from the onset by just adding the key provisions.

The biggest concern for most employers is the proverbial bottom line. Employers should, however, be aware of their potential for becoming embroiled in litigation that may end up costing them thousands of dollars. In addition, the Equal Employment Opportunity Commission (EEOC) is always looming on the horizon, ready to enforce the laws under its purview; namely, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA) of 1967, the Equal Pay Act (EPA) of 1963, Titles I and V of the Americans with Disabilities Act (ADA) of 1990, sections 501 and 505 of the Rehabilitation Act of 1973, and the Civil Rights Act of 1991. In the 2002 fiscal year, 84,442 charges were filed with the EEOC, which was a 5% increase from the previous year. The EEOC awarded a staggering 310.5 million dollars to victims of discrimination in the 2002 fiscal year. Fortunately for employers, Ohio courts continue to uphold the employment-at-will doctrine, which basically states that an employee, not under an employment contract, may be terminated at any time, with or without cause. This doctrine, however, does not give employers carte blanche to terminate employees when that termination may run afoul of state or federal anti-discrimination laws.

Despite employers' continued reliance on the employment-at-will doctrine, the Supreme Court of Ohio has issued several decisions in the recent past that have chipped away at this doctrine. Most notably, there are four major exceptions to the employment-at-will doctrine: express contracts, implied contracts, promissory estoppel, and public policy. Each of the aforementioned exceptions can transform an employee-at-will to a contract employee who may only be terminated for cause. When terminating for cause it is critical to have maintained detailed employment records.

Employee Handbooks
Well written policies in an employee handbook may serve as a shield to help employers deflect potential lawsuits by employees; however, employers run a tangible risk when issuing employee handbooks since a poorly written handbook may provide an employee with a sword with which to pierce the employment-at-will doctrine and/or prove a discrimination claim. A poorly drafted handbook may be all an employee needs to succeed with a wrongful discharge claim, and a well crafted handbook may be all an employer needs to head off a lawsuit or investigation by the EEOC or OCRC. There is no law in Ohio which requires an employer to maintain or issue an employee handbook, but they do provide many advantages to employers. Employee handbooks allow an employer to present its employees with company policies and procedures. A handbook may also aid management in uniformly implementing and enforcing these policies, and uniformly and consistently enforced policies can be an employer's best defense against a wrongful discharge lawsuit.

The most important component of any employee handbook is the disclaimer. The disclaimer should state clearly the handbook is not an employment contract, in no manner guarantees continued employment, and that the employee is an at-will employee who may be terminated at any time and for any reason. In addition, the disclaimer should state that the policies and procedures contained in the handbook are intended as guidelines and the employer may unilaterally modify the policies and procedures at any time. Placing the disclaimer on the initial pages of a handbook is recommended since courts have found that inconspicuously posted disclaimers may not properly inform employees of their at-will status.

The actual policies and information contained in a handbook will vary depending on the characteristics of each company such as size, field of operation, and whether employees are union members. Generally, topics such as benefits (holidays, vacation, health, insurance, etc.), attendance and leave policies, dress codes, computer policies, copyright and trade secret policies, drug and alcohol policies, and discipline appear in employee handbooks. Employers may also want to include some background information on the company such as its history and its expectations for the future.

If an employer is covered by the Family Medical Leave Act (FMLA) and provides an employee handbook, it must include information relating to the FMLA and employees' rights under the statute. Handbooks should provide information regarding who is eligible for protected leave, what leave qualifies for protection, the employer's notice procedures for FMLA leave, and how the employer will calculate the 12-month period under the FMLA. If the employer requires employees to use paid vacation or sick leave prior to FMLA protected leave that must be included in the handbook.

An employer who includes a list of offenses for which an employee may be terminated should be cautious in wording its discipline and discharge procedures so that a court cannot later determine that an employee could not be terminated for an offense not specifically enumerated. To prevent this, employers should be clear in stating that any list of offenses that warrant termination is not exhaustive and the employer reserves the right to terminate an employee at any time within its discretion. Also, an employer implementing progressive discipline procedures should maintain flexibility to deviate from the procedures if appropriate.

Members of partnerships, owners of sole proprietorships, and officers of family farm corporations, are not covered as employees under Ohio Workers’ Compensation law unless specifically requested.

Ohio’s workers’ compensation system is a mandatory participation system. Companies with one or more employees must pay into the system. Every “employee” who suffers a work-related injury is protected under the workers’ compensation laws. However, members of partnerships, owners of sole proprietorships, and officers of family farm corporations are not considered “employees” under the workers’ compensation laws.

Under Ohio law, partnerships, sole proprietorships, and family farm corporations, that are employers in ohio, may elect to include members of such partnerships, owners of such sole proprietorships, and officers of such family farm corporations, as employees. However, such employers must make such election by submitting written notice to the Bureau of Workers’ Compensation identifying the person to be covered, and providing additional mandatory information. If no such written notice is provided, the person is not covered as an employee, and will not be entitled to workers’ compensation benefits for work-related injuries.

On April 20, 2005, President George W. Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the “Act”). The Act is one of the most comprehensive pieces of bankruptcy legislation to be enacted in decades. With the exception of some provisions, the effective date for the new law is October 17, 2005. The intent behind the legislation is to prevent individuals and other entities from abusing the remedies provided by the Bankruptcy Code. As a result, a number of the new provisions in the Act are designed to produce increased payments to creditors and/or to increase a creditor’s rights in the bankruptcy proceeding. This article briefly highlights some of the major changes that will take effect this fall.

Overview of Major Changes to Consumer Bankruptcy Cases. Subject to certain exceptions, any individual seeking relief under any chapter of the Bankruptcy Code must complete an individual or group counseling session from an approved nonprofit budget and credit counseling agency within 180 days of filing for bankruptcy protection.

One of the most significant changes made by the Act involves the ability of individuals to file a Chapter 7 bankruptcy. The Act greatly limits the availability of Chapter 7 bankruptcy relief through implementation of the “means test.” Generally speaking, after October 17, 2005, if a debtor’s monthly income exceeds the median income level of his/her state, as reported by the Bureau of the Census, the debtor will be subject to the “means test.” The “means test” is a convoluted formula to determine if a presumption of abuse exists. If a presumption of abuse does exist in a Chapter 7 bankruptcy, the debtor will have to defend against a motion to dismiss the Chapter 7 case by demonstrating that “special circumstances” exist that justify the need for Chapter 7 relief. The intent behind the “means test” is to limit the availability of Chapter 7 relief for individuals. Accordingly, if an individual is prohibited from filing a Chapter 7 bankruptcy, his/her only choices are to either forego bankruptcy relief or seek bankruptcy relief under Chapter 13, which requires at least a minimal repayment of debts. As a result, creditors should, at least in theory, receive a higher repayment on their claims against a debtor under the Act then they did under the soon to be old law.

The automatic stay provisions of the Bankruptcy Code once provided a broad protection for debtors by generally prohibiting any continuation of collection efforts by creditors. The automatic stay provisions of the Act, however, create numerous new limitations on the applicability of the automatic stay. A creditor’s ability to continue collection efforts against a debtor that has filed a bankruptcy case will substantially change under the Act. Several of the new provisions modify the applicability of the automatic stay in relation to interests in real property and leases, which is discussed in more detail below.

Another important amendment to the Bankruptcy Code involving Chapter 7 bankruptcy cases and secured debt is the requirement that the debtor must either redeem the property or reaffirm the debt applicable to collateral. In the past, debtors were able to avoid the formal process of redemption or reaffirmation by simply maintaining current payments to the creditor for the secured debt. Redemption requires a debtor to “buyout” a creditor’s interest in collateral by paying the value of the collateral. Reaffirmation means the debtor agrees to pay the debt according to the original terms of the contract. Pursuant to the Act, the application of the automatic stay may be terminated with respect to certain property if the debtor fails to either redeem the property or reaffirm the debt within a specified time period.

Overview of Major Changes Affecting Real Property in Bankruptcy. The Act contains numerous amendments that affect interests in real property. For example, any act to enforce a lien against or security interest in real property after an order granting relief from the automatic stay as to such real property was entered in any prior bankruptcy case is excepted from the automatic stay for two years after the entry of the order granting the relief from the automatic stay, subject to certain exceptions. Thus, if a creditor is granted relief from the automatic stay in one bankruptcy proceeding, and the debtor, thereafter, files a subsequent bankruptcy case, the automatic stay may not prohibit that secured creditor from enforcing its rights in the collateral under state law.

Another change regarding real property involves a landlord’s ability to proceed with its eviction process after a tenant has filed bankruptcy. The Act provides an exception to the automatic stay wherein a landlord may be able to continue its eviction, unlawful detainer action, or similar proceeding if the landlord received a judgment for possession of such property prior to the date the debtor files for bankruptcy protection. This new provision, however, is limited by certain exceptions.

Other significant changes created by the Act provide additional protection for creditors, including, but not limited to, lessors and secured creditors with an interest in real property. These new provisions provide additional exceptions to the applicability of the automatic stay based upon the number of prior bankruptcy cases filed by the debtor. In certain circumstances, the automatic stay terminates after thirty (30) days. In other instances, the automatic stay never even goes into effect after the debtor files bankruptcy, which means the creditor is not prohibited from proceeding with its action and may not need to obtain an order from the Bankruptcy Court to do so. Further, a creditor with a secured interest in real property may request relief from the automatic stay based upon, among other things, the fact that the debtor has filed multiple bankruptcies affecting such real property. All of these provisions, however, are subject to certain limitations and may be overcome by the debtor by filing the appropriate paperwork with the Bankruptcy Court.

One last important change in the Act involves the assumption or rejection of an unexpired non-residential real property lease. The new law provides that a debtor has one hundred and twenty (120) days from the date of the filing of the bankruptcy case to assume or reject a non-residential real property lease. Thereafter, the debtor may request a ninety (90) day extension, which provides a maximum of two hundred and ten (210) days from the date of the filing of the bankruptcy case within which the debtor must either assume or reject the lease. The Act further provides that any request by the debtor for an extension beyond the maximum of two hundred and ten (210) days cannot be granted unless the landlord/lessor has provided its written consent. This is a significant change because under the current law it is customary for the debtor to request and be granted numerous and lengthy extensions to assume or reject a lease. This new provision in the Act will require the debtor and the lessor/landlord participate in negotiations much earlier in the bankruptcy proceeding.

Conclusion. This article provides only a brief overview of some of the significant changes that will take effect on October 17, 2005. The changes created by the Act are much too numerous to be addressed one by one in this article, and thus, this article is not an exhaustive explanation of the impending modifications that will be implemented by the Act. If you or your business become involved in a bankruptcy matter as a result of your client, tenant or customer filing a bankruptcy case, it is advisable that you seek advice as to how the new law may affect you or your business. The attorneys at Maguire & Schneider, L.L.P., are happy to discuss any questions or concerns you may have regarding the new bankruptcy law.

If you have not heard the state of Ohio has adopted a commercial activity tax (CAT) which became effective July 1, 2005. The CAT tax is an annual privilege tax to do business in Ohio and is measured by gross receipts on business activity. The tax applies to all types of businesses regardless of legal form. Individuals also may be subject to the tax. This is how the CAT tax works: most everyone, except wage earners, with gross receipts beyond $150,000 must register with the state and pay a fee of $20.00 ($15.00 if you register electronically) on or before November 15, 2005. For gross receipts up to $1 million, you pay $150.00 annually. For gross receipts above $1 million, you will pay an additional .0026. Here are a few examples:

� Sam owns a welding shop and has $475,000 in gross receipts. His business expenses total $410,000 leaving him with net income of $65,000. Sam pays income tax on $65,000 plus an extra $150.00 for the CAT tax.

� Wendy is a partner in a small medical practice. The practice generates $2 million in gross receipts. The practice will pay $2,750 in CAT tax.

� Karl has investment properties that generate $5 million in gross rents. In addition to paying income tax on the net income (gross receipts less allowable deductions) his CAT tax will be $10,550.

As the examples show, each person is paying more tax to the state of Ohio than before.

The CAT tax will be phased in over the next five years and payment is due in February of each year. Some taxpayers will be required to make quarterly payments.

Here is one more tidbit: If state of Ohio revenue projections from the CAT tax are lower than projected, the Ohio Tax Commissioner (and not your elected representatives) is permitted to increase the Cat tax.

For more information on the CAT tax and how it may apply to your situation, please consult your tax advisor.

The Fair and Accurate Credit Transaction Act�s (FACTA) disposal provisions went into effect on June 1st. The purpose of the rules is to prevent workplace identity theft by requiring employers to properly dispose of records that contain �consumer information.� FACTA amends the Fair Credit Reporting Act (FCRA) and requires �any person that maintains or otherwise possesses consumer information, or any compilation of consumer information, derived from consumer reports for a business purpose to properly dispose of any such information or compilation.�

Under the rule, �consumer information� means any record about an individual that is a consumer report or is derived from a consumer report as defined by the FCRA. The FCRA�s definition of a consumer report includes any written, oral, or other communication of any information by a consumer reporting agency regarding a consumer�s credit standing, credit capacity, character, reputation, personal characteristics, or mode of living which is used as a factor to establish the consumer�s eligibility for employment. Practically, the disposal rules come into play whenever a third-party is used to perform a credit check, run a credit report, conduct a background investigation, or perform a driving record check. Further, if information from any of these reports is made part of another document, such as a summary of the reports, these additional documents are also covered by FACTA. The rules are limited by the requirement that information must come from a third-party; information gathered by internal research or checking is not covered under FACTA.

The rules require proper disposal of consumer information contained within the reports covered by FACTA. The rules further require employers to take �reasonable measures� to protect against unauthorized access to information contained within reports covered by FACTA once the reports are disposed. The logical question is what are reasonable measures? The rule suggests shredding, burning, or pulverizing documents. Computer and electronic files must be erased. These rules only apply to the disposal of consumer information�they do not apply to the maintenance and/or storage of the information.

In recent years, many businesses have started to include mandatory arbitration provisions in contracts with suppliers, customers, and consumers. While mandatory arbitration provisions may be advantageous in certain transactions, their benefits must be analyzed on a case by case basis.

Arbitration is a private dispute resolution process in which a neutral third party renders a decision resolving the dispute after both parties have had an opportunity to be heard. Mandatory arbitration provisions, which are usually included within the terms of a written agreement, require the parties to resolve any dispute related to that transaction through this process, as opposed to presenting the matter to the courts. Overall, this process has been viewed as less costly and more efficient than traditional litigation. However, there are many situations where this presupposition has proven false.

For example, mandatory arbitration provisions in consumer contracts or in contracts between an employer and an individual employee are coming under strict scrutiny by the courts, and in some cases, have been found to be unenforceable. In addition, even if an arbitration clause itself is not challenged, the arbitration decision may later be challenged in court. Obviously, these types of legal disputes will add to the cost of arbitration. Furthermore, when a private dispute resolution mechanism like arbitration is used, the parties typically pay the cost for the arbitrator痴 services, which may be substantial depending on the nature of the dispute. Therefore, prior to inserting mandatory arbitration provision in a contract, you should consider the nature of the contract (consumer or commercial), the amount involved, and the complexity of the potential issues to determine whether mandatory arbitration is the best way to resolve potential disputes.

On Aug. 8, 2005, the President signed the Energy Tax Act which could provide homeowners with a $500 credit for non-business energy property (a one time credit) and the 30% of cost credit for residential energy efficient property (up to $2000). Not surprising, given their subject matter, both are fairly complex. While the many energy related technicalities related to these credits will hopefully be easily resolved with the help of manufacturers’ certification/labeling, the average person should be aware of this tax saving opportunity.

A homeowner may take advantage of these credits by installing energy efficient insulation, skylights, exterior doors, and pigmented coated metal roofs. For example, you may be eligible for a $50 credit for each advanced main air circulating fan or $300 for qualified energy-efficient property heat pumps, water heaters and central air conditioners.

For additional details please consult your tax advisor.