OBP News

Otis, Bedingfield & Peters, LLC welcomes attorney Katie Butler to the litigation team

Otis, Bedingfield & Peters, LLC is proud to announce that Katie Butler has been admitted to practice law in Colorado.

Katie worked as a law clerk for the firm for about a year and she recently has been admitted to practice law in Colorado.

Katie graduated from the University of Arkansas School of Law. She received her Bachelor of Arts degree in Spanish and English from the University of Texas at Arlington. Before joining Otis, Bedingfield & Peters, she was In House Counsel for CrossFit, Inc., where she managed a large international trademark portfolio and navigated the company in its business issues. While in law school, Katie worked as a student attorney for the Transactional Clinic, aiding nonprofit businesses with organizational legal issues. Also, Katie served as a law clerk to the City Prosecutor in the home of her Alma Mater where she prosecuted misdemeanors and minor felony offenses. She currently volunteers at the Boys and Girls Club of Weld County.

 

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Otis, Bedingfield & Peters, LLC provides a range of legal services throughout Northern Colorado. OBP has 16 attorneys spread across its two offices in Greeley and Loveland. For more information, contact Katie Butler at kbutler@nocoattorneys.com or Jennifer Lynn Peters at jpeters@nocoattorneys.com or call 970-330-6700 or visit www.nocoattorneys.com.

Dance like no one is watching; email like it may one day be read aloud in a deposition – By: Christian J. Schulte, Esq.

Attorney Timothy R. Odil Promoted to Equity Member of the Firm

Otis, Bedingfield & Peters, LLC is proud to announce the promotion of attorney Timothy R. Odil to Equity Member. “We are thrilled to have Tim as our partner in our firm,” says Partner John Kolanz. “His hard work on the most complex litigation matters and his mentorship of our younger attorneys has made him a valuable asset to us and our clients,” adds Kolanz.

Tim is a key member of the firm’s litigation team. His practice focuses on disputes among private parties as well as disputes with local, state, or federal government agencies. He handles complex business litigation and appeals, government and commercial contract disputes, regulatory compliance, licensing disputes, and rulemaking issues, as well as employment law matters.

Tim was recognized as a Colorado Lawyer of the Year in 2014 by Law Week Colorado. The honor was in recognition of Tim’s superior work in both the trial court and the appellate court. Tim was selected as an honoree in the 2015 BizWest 40 Under Forty Leaders Honor Roll program. This program recognizes Northern Colorado’s top 40 young professionals under the age of 40, who represent the best and the brightest emerging leaders that make a difference in their companies, industries, and communities. Tim was also voted one of Business Connect’s 2016 Top 20 Under 40, which recognizes the top business performers under age 40 in Weld County. Tim has also been recognized several times as a Colorado Rising Star by Law & Politics, and he is a former board member of Rebuilding Together Metro Denver.

A Colorado native, Tim received his law degree from the University of Denver Sturm College of Law, and received his undergraduate degree from Johns Hopkins University. Tim began his legal career as a law clerk in the Weld County Courts, where he clerked for District Court judges J. Robert Lowenbach and Daniel S. Maus.

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Otis, Bedingfield & Peters, LLC provides real estate and business law services throughout Northern Colorado. OBP has 15 attorneys serving its two offices in Greeley and Loveland. For more information, please visit www.nocoattorneys.com.

Attention to all who work in the legal community! The Weld County Bar Association is proud to host its Eighth Annual Law Day honoring those who work in the legal field. The event will be held on May 5th from 7:30 -8:30 am., at the Plaza West, Jury Assembly Room. RSVP information is included on the flyer. There is no cost to attend!

Congratulations to Fred Otis for being honored as a Volunteer of the Year! Fred not only serves on the United Way Board of Directors, but he has also given extensive time in helping the homeless in Weld County.

Why Is My Contract So Long?


“The time to repair the roof
is when the sun is shining.”
-John F. Kennedy

 

You entered into a pretty basic commercial deal, and decided to do things properly and get it drawn up by an attorney. You’ve now received a ‘draft’ from the attorney and it’s long. It was a simple deal. Why are there so many terms? Why is it several pages in length? The answer lies in risk-shifting, or preparing for the rain.

Contracts are generally signed in good times, when the sun is shining. The parties typically have high expectations of the success of the agreement and may not consider what happens if and when things don’t go as planned. However, it is important to prepare for the bad times, to formulate terms that consider risks that may arise after the contract is signed. There are many ways a contract can be drafted to guard against the rain – two of the more common ones are representations and warranties and indemnity provisions.

Representations and Warranties

A representation is simply a statement of fact upon which another party is expected to rely, while a warranty is a party’s assurance as to a particular fact coupled with an implied indemnification obligation if that fact is false. Representations and warranties are generally used to allocate risk by (1) apportioning exposure to potential losses and shifting risk from the recipient to the maker; (2) creating a direct claim against the maker if representations and warranties are inaccurate; and (3) serving as a basis for the parties’ indemnification rights.

Indemnification

An indemnification clause is a promise to protect and defend another in the event a particular set of circumstances leads to a loss suffered by another party. Indemnity provisions are the primary vehicle by which parties typically shift or apportion risk in a contract.  Indemnity provisions may include any, or all, of three obligations to (1) indemnify, (2) defend, and (3) hold harmless the other party. A well-drafted indemnification provision allows parties to customize their risk allocation by shifting the burden of loss and compensating an indemnified party for risks it did not assume and expenses that may not be recoverable under common law, like attorneys’ fees.

Having an attorney draft or review your contract before signing is recommended. It is imperative that you understand the potential consequences of the risk-shifting provisions in any contract. By carefully drafting and negotiating a contract before execution, during the good times, you can best protect yourself or your company from the inevitable rain.

Otis, Bedingfield & Peters, LLC attorney Nate Wallshein appointed to the board of The Matthews House

Otis, Bedingfield & Peters, LLC is proud to announce that attorney Nate Wallshein was appointed to the board of the Matthews House.

The Matthews House is an organization that empowers young adults and families in transition to navigate difficulties on the road to self-sufficiency. Many individuals in the program do not have a significant support system nor the skills necessary for living independently. The Matthews House provides resources and relationships necessary for those to take control of their lives and shape positive futures for themselves.

“I am humbled and thrilled to serve on the Board at The Matthews House. The staff and volunteers provide much needed services in our community by empowering youth and families in times of transition, and by providing preventive, educational, and vocational training. The incredible support from northern Colorado residents drives our success and continues to strengthen our community,” said Nate Wallshein.

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Otis, Bedingfield & Peters, LLC provides real estate law and business law services throughout Northern Colorado. OBP has 15 attorneys spread across its two offices in Greeley and Loveland. For more information, contact Nate Wallshein at nwallshein@nocoattorneys.com or Jennifer Lynn Peters at jpeters@nocoattorneys.com or 970-330-6700 or visit www.nocoattorneys.com.

John Kolanz is a partner with Otis, Bedingfield and Peters, LLC in Loveland. He focuses on environmental matters and can be reached at 970-663-7300 or JKolanz@nocoattorneys.com.

jak

 

A Deeper Look Into Trademarks By: Shannan de Jesús

Shannan 120A DEEPER LOOK INTO TRADEMARKS

By: Shannan de Jesús

If you read the June article about trademarks and copyrights (or have some knowledge of intellectual property law), you know that a trademark (or service mark, but I refer to trademarks in this article for ease of reference) is a word, phrase, logo, symbol, color, sound, or smell that links your goods or services to your company and helps distinguish your product from those of your competitors. The more your customers see your trademark, the more they think of your business – and the quality of it. Indeed, if your customers are familiar with your trademark and have liked your products in the past, simply seeing your trademark on a new item might convince your customers that they will like that product before they even try it. This article takes a deeper look into trademarks, how to get them, and how to protect them once you do.

Clearance Searches

You may already know how important it is to run a clearance search before you start using a trademark. Without a doubt, a clearance search is critical to making sure you are not infringing on someone else’s rights when you start advertising your product. In fact, if you overlook this crucial step in the development of your business, you may spend a lot of time and money on something that you will later have to change. And, if you have to change your mark, you will be back at square one with branding, marketing, and letting consumers know that your new trademark represents your company and stands for quality. While it’s not completely failsafe, taking the time to do a clearance search can prevent future problems that would have been foreseeable with this easy, important step.

The clearance search can take many forms and is based in part on where you want to use your mark. A trademark can be registered in the state where the product or service is located, nationally with the United States Patent and Trademark Office (USPTO), or internationally. Depending upon how you want your business to grow and where you will reach your customers, you may want a basic state registration, federal registration, or registration in multiple foreign countries. A trademark clearance search is used to make sure that no one is already using the mark you want to use, in your industry, wherever you are.

A state search is simple and is limited to the geographic boundaries of the state where your product or service will be located. If you own a small home design business or diner, this might be a good option for you. But, don’t make the mistake of thinking that trademark registration is unnecessary if your business is limited to one state. Someone with the same (or very similar) trademark may have a federal registration – and may insist on you renaming your business or product if you use it.

A federal search is more detailed and like the state search, evaluates marks that are the same as, or substantially similar to, your proposed mark, but nationwide. This type of search also helps determine the likelihood that someone else will oppose your use of the mark, registration, or both. Remember that even if you don’t apply for federal registration, another trademark holder can stop you from using its mark and infringing on its rights. Federal clearance searches can include researching websites/domain names, other states’ registrations, and the USPTO database, including foreign word marks. This is a good option if you plan to expand your business, have an attractive mark, or have a popular product to sell.

Finally, if you plan to have an international customer base, you may want to register your mark in certain foreign countries, in addition to nationally with the USPTO. Some countries will not recognize the same protections offered by U.S. trademark law.[1] It is important to understand what rights you will have if you want to offer your product or services outside the United States.

The USPTO Process

There are two basic ways to file for trademark registration with the USPTO: an intent-to-use basis, meaning you plan to use the mark, or a use-in-commerce basis. The process is generally the same for both types. It is important to note that there are deadlines throughout the process which must be met, or your application may be deemed abandoned and denied.

First, an examining attorney who works for the USPTO will review your application to determine whether there are grounds for denying registration (the mark does not contain the necessary characteristics to be eligible for registration, for example) or more information is needed. In that case, the examining attorney may issue an “office action,” which gives the applicant an opportunity to explain why the mark should be registered. The UPSTO may issue multiple office actions before making a final decision.

If the USPTO determines there is no initial basis for denying registration, it will publish the mark in the Official Gazette. During the publication period, any person or company who believes their rights will be affected if your mark is registered may file an opposition. If an opposition is filed, you will go through a process similar to a federal civil trial to determine your rights.

If no opposition is filed, the USPTO will issue a notice of allowance if the application was filed on an intent-to-use basis, and then you have to file “specimens” showing how your mark is being used before you can receive a registration number. If you were already using the mark and filed your specimens with your application, the USPTO will issue your registration. Again, it is important that you meet all deadlines and file all the necessary documents for the process to continue moving forward. An attorney who is familiar with trademark law can help you do this.

Protecting Your Trademark

            Once you receive your registration, you will need to “police” your mark. One way to do this is by regularly reviewing the Official Gazette. However, that publication is limited to only marks that are pending federal registration. As such, it is important to be vigilant about watching for marks that are the same as, or substantially similar (and thus potentially confusing), to yours – in your neighborhood, state, and on the Internet. If you see a mark that looks like yours, you may need to take legal action to protect your rights. This is important for making sure your customers are not deceived by another company (and thus, making your company look bad) and to keeping your trademark rights.

Finally, if your trademark is registered on the principal register with the USPTO, you may also want to record your mark with the U.S. Customs & Border Protection (“CBP”) agency, especially if your goods will be sent to other countries, or you have other reasons to believe that your mark may be infringed. Counterfeiting is rampant, and the CBP works to keep out foreign imports that infringe on U.S. registrants’ rights.[2]

If you are interested in securing a trademark, or have one you want to protect, the lawyers at Otis, Bedingfield & Peters, LLC have the resources and experience you need to help. We would be happy to talk with you. Contact us today.

 

 

[1] http://www.inta.org/Media/Documents/2012_TMBasicsBusiness.pdf

[2] http://www.uspto.gov/trademark/trademark-updates-and-announcements/record-trademarks-customs-and-border-protection-cbp