Andrew Flusche, Virginia Lawyer

Part of what I hope to do on this website is highlight other local Fredericksburg area businesses. Starting my own solo law firm has given me a renewed respect for local entrepreneurs.

Since I’m a coffee lover, I like to try the coffee shops around Spotsylvania and Stafford Counties. Tickers Coffee is one of my favorites so far. Pablo Cuadrado runs Tickers, where he is competing against Starbucks in the Westood Shopping Center.

Pablo brews some great coffee over at Tickers. He serves a full line of espresso-based drinks, as well as all-natural fruit smoothies. I particularly enjoy his sandwiches, such as the “T Bill” (turkey).

If you’re looking for a tasty beverage around West Fredericksburg, stop in at Tickers. Pablo will certainly treat you right and satisfy that caffeine craving.

Do you know any great coffee shops in Fredericksburg, Stafford, or Spotsylvania County?

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Photo by Suzanne Carr Rossi / The Free Lance-Star

Most business owners understand that they need to take many steps to protect their legal rights. Even if you only have a small business, you need to take important steps to safeguard your rights and safeguard your future.

One thing you really need to think about with your business protection is trademark registration. Everyone knows that you can trademark things like your business name, but you don’t obtain the benefits of federal trademark registration unless you actually have a trademark attorney file the trademark application with the United States Patent and Trademark office.

As a trademark attorney, I can help you file that application. It really is a simple process, it just requires a few quick questions answered from you and we can have the application on it’s way to the U.S. Patent and Trademark Office.

The fees involved are quite reasonable. The basic trademark registration fee is $325. Now, that may seem like a lot of money. But if you think about $325 of protection for your business, it really is nothing. For instance, you have insurance on your property. Why not have a little bit of protection for your company’s name, because that’s the very identity that you create when you’re building your company? You don’t want to lose that identity if you don’t have trademark registration.

The benefits of federal trademark registration are several. First of all, it gives nationwide notice of your trademark. Without actually having a federal registered trademark, you only acquire rights to your trademark within the geographic area where you have used it. If you have a little store in Fredericksburg or Stafford, and you really don’t do much business outside of the 50 mile radius of Fredericksburg and Stafford, then you are only going to acquire trademark rights in that area. But if you register the trademark on the Federal Register, you get nationwide rights to the trademark. Nationwide notice makes it where someone can’t open up a little store with the same name as yours in the next state or possibly even in the next city. It protects you against any use of that mark for your type of services and goods in the country.

Second, federal trademark registration entitles you to obtain treble damages from an infringer. You may also be able to recover any profits that the defendant received by using your trademark.

Third, federal trademark registration makes your mark incontestable after five years. This makes your trademark even stronger; it’s not just that third parties know about it, but that it actually does become a stronger mark in court. Incontestability means that you officially have the exclusive right to use your registered trademark.

If you need help obtaining a federal trademark registration, call me: 540-318-5824.

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When forming a new business, you need to comply with all of the rules and requirements of all levels of government. One possible requirement is to obtain a business license.

What does this mean for Spotsylvania County businesses?

Spotsylvania County Code

Section 11.1-3 of the Spotsylvania County Code specifies that all businesses with gross receipts over $200,000 must obtain a business license.

This applies to your business if one of three conditions is met:

1. You maintain a definite place of business within Spotsylvania County
2. You have no definite place of business anywhere, but you live in Spotsylvania County
3. You have no definite place of business anywhere, but you operate amusement machines, are a peddler, a contractor, or a public service corporation

But even if you fall within these requirements, you might be exempted from the licensure requirement by the Commonwealth of Virginia.

Code of Virginia

The Code of Virginia § 58.1-3703 exempts several types of business from the licensure requirement. If your business fits within one of these categories, you’re home free!

These exempt businesses include:

• Newspapers and magazines, subject to certain limitations
• Miners who sell the mined minerals at wholesale at the mine
• Roadside farmer’s markets
• Cab drivers whose cab company already has a business license

What this means to you

As you can see, these regulations aren’t exactly simple. If your business might receive more than $200,000 in a year, you should look closely at obtaining a Spotsylvania County business license.

It’s always better to pay a small fee up front than to break the law and face possible fines or other penalties. And if you are unsure about needing a business license, please consult with me or another Spotsylvania County lawyer.

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Everybody knows that you need car insurance. Most states won’t even let you register your car without insurance. But what about homeowner’s insurance?

You probably view homeowner’s insurance as a silly requirement from the mortgage company. At most, you realize that it covers the loss or damage of your home and possessions.

But do you know what else homeowner’s insurance does for you? It gives you liability coverage.

Basically, the standard homeowner’s insurance policy provides coverage for damage that you and your family might cause to other people. The insurer will cover the costs of defending a lawsuit and any awards to be paid, up to your policy’s limits.

Your policy also provides no-fault medical expense coverage for someone who is injured on your property. If a guest trips and falls on your front steps, your insurer will pay the medical bills, up to the policy’s limits, of course.

Combined, these two portions of your homeowner’s insurance policy provide great protection for you and your family. They do not cover your own personal injuries, but the liability coverages can be vital if claims are pursued against you. And if you are particularly risk averse, you can purchase even higher policy limits to ensure greater protection.

Have you read through your homeowner’s insurance policy lately?

This post was submitted to the Carnival of Homeowners at Homeowners Insurance Lowdown.

Almost every website has a terms of use agreement. It’s one of those microscopic links in the footer of every page. But are terms of use agreements enforceable in court?

The Second Circuit said yes, in Register.com v. Verio, but in the TurnItIn.com case, a Virginia federal court said no. Where does that leave us?

Make your terms enforceable

To enforce a terms of use agreement, the website owner must prove that the visitor agreed to the terms. Without some evidence of consent by the user, website owners are out of luck.

This doesn’t mean that visitors must click an “I agree” button for the terms of use. Here are some guidelines to follow:

Show the terms of use - Visibility is key. If users are registering on your website, provide a highly visible link in the registration process to the terms of use. Don’t just assume that your footer link is enough.

Use specific language - With that terms of use link, specifically say something like “registering with this website signifies your agreement with the terms of use.” You don’t need a separate terms of use “I agree” button, but make it clear.

Add a checkbox - You’ve seen this one before. This is why websites make you check a box saying “I have read and agree with the terms of use.” Website owners can later use that to enforce the agreement.

Keep records - Most importantly, keep records of whatever method you use. If you end up in court, you’ll need to prove that the user saw the terms of use and agreed to them. The more proof you have, the better.

If no registration system

Not every website needs a terms of use agreement. If your visitors just read content and go about their day, why do you need a binding contract between them? You don’t sign a contract to read the newspaper, do you?

If you don’t have a registration system, I’ll be bold and say that your website probably doesn’t need terms of use. It’s probably not incredibly interactive where users are uploading content, etc. So don’t worry about the terms.

What do you think?

I’m not claiming to be an expert here. Please jump in to correct me, if you think I’m wrong.

And, of course, this isn’t legal advice. If you need legal help, give me a call: 540.318.5824.

Photo by khalid almasoud

Did you see the news that Starbucks must pay $85 million in wronfully-withheld tips? The coffee giant forced its California employees to share tips with shift supervisors, violating California law. Now Starbucks has to pay these tips back to the barristas.

With this news, it’s a good time to examine what rights tipped employees have.

Fair Labor Standards Act

State laws vary widely on this subject, and Virginia offers virtually no protection at all for tip compensation. So we should look at the applicable federal law.

If your employer is covered by the Fair Labor Standards Act (FLSA), you have certain rights to your tips. The FLSA generally applies if the overall yearly business is more than $500,000.

Tip laws

To answer many of the common tips questions, the U.S. Department of Labor has a handy fact sheet (PDF). Here are a couple important points to remember:

Tip pooling - Tip pooling is allowed, but only among employees who “customarily and regularly receive tips.” The fact sheet specifically says that employees like “dishwashers,” “cooks,” and “chefs” cannot share in a tip pool. In the Starbucks case, California has a law that salaried employees can’t share in the tip pool.

Employer can’t share - Your tips are yours. They can be pooled among other workers, but no part of your tips can become the property of your employer.

Credit card fees - If someone tips you using their credit card, your employer can deduct the credit card processing fee from the tip you receive. But this only covers the actual credit card fee.

Your remedies

If your employer has violated the Fair Labor Standards Act, you have two possible remedies.

1. You can file a complaint with the U.S. Department of Labor by contacting your local Wage and Hour Division office. For help with a complaint, call their help line: 1-866-4USWAGE.

2. You can also file a civil lawsuit. You can claim two years of back pay plus that same amount as liquidated damages, and you can recover attorney’s fees and court costs.

Photo by MReece

Many businesses and individuals are concerned about potential liability from material third-parties might post on the company website. The law on this topic just became a little more clear.

The 7th Circuit just ruled that the Communications Decency Act of 1996 (CDA) immunizes craigslist from discriminatory housing ads posted on its website.

In plain English

The Fair Housing Act basically prohibits discrimination in the housing market. Apparently some of the housing posts on craigslist were deemed discriminatory.

But the CDA specifically exempts internet service providers from liability for the content of third parties. So craigslist claimed it was immune from the discrimination claims. The court agreed.

Applied to you

Generally speaking, you should not have illegal material on your website. But laws like the CDA help ensure that you are not responsible for content posted by third parties.

Unfortunately, many areas of internet law are vastly unsettled. That means you should still exercise care and caution with your websites, especially regarding any content submitted by your visitors. Hopefully more decisions like this one will further clarify that website owners do not bear ultimate responsibility for third-party content.

Photo by J.Salmoral

Are you ever tempted to solve legal problems yourself? Perhaps you’re thinking about heading to the office store for some fill-in-the-blank legal documents. Or maybe you want to represent yourself in court.

Please call a lawyer.

I’m not trying to say that every remotely legal matter requires an attorney’s help. But it’s a lot cheaper to do things right to begin with then have to hire an attorney after your business or personal life is a mess. Yes, an ounce of prevention is worth a lot.

But here’s another factor: how much time will it take you to handle legal matters yourself? How much is that time worth to you? It could very well be cheaper to hire a lawyer instead.

My friend, Hank, just wrote about hiring an accountant to do his taxes. He explains how it really does make sense:

If you look at it in regards to what THEY charge you for the process, it seems asinine to pay someone $75/hour to do your taxes. I agree, but think of what it costs YOU to do it, in YOUR hours, on YOUR time, and saving YOUR dime. Breaking it down like that makes me believe it is WELL worth it.

The next time you need legal help, try to think about it in that way. While legal bills can be a bit expensive up front, what would it cost you without the lawyer?

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I whole-heartedly agree with Seth Godin’s point that resumes are pointless. Especially for lawyers.

They’re a way for Big Law to try to choose from hundreds (possibly thousands) of applicants that are clambering to enter their hallowed halls. It’s sort-of standardized testing. Give each applicant a single page (standard for lawyer resumes), and see what awesome things each person can include on the page.

I wonder what a big firm would do if somebody submitted a resume that was printed in landscape orientation.

This website is now my resume. You can read about me and you can also visit my other site if you want even more information.

It’s my way to show that I’m more than a single piece of paper.

First of all, don’t confuse owning trademark rights with actually registering the trademark. You may be able to claim ownership in a trademark even without filing a trademark application. More on that at a later date.

When you’re setting out to register trademarks for your company, what do you register? Do you register just the company’s name, or do you register the logo? What about both?

Basically, a trademark registration gives you a set amount of protection. If you include your logo design in the trademark, you are diluting that protection by spreading it around the visual elements.

If you focus your trademark registration on the company’s literal name, it protects your company against anyone using that name in any form. For example, McDonald’s® registration of their name successfully safeguards the company from competitors like McBagel.

To get the most bang for your legal expenditures, a lot of people focus on their company name first. But once you have the funds, it is a good idea to protect your logo as well.

Photo by Adcuz