A trademark is legal protection for the trade name of a business or product. (A service mark is essentially a trademark for a business in the service sector; service marks are often a slogan.)

A common misconception is that owning a trademark means you own a word or phrase and others cannot use it. You don’t “own” the trademarked word or phrase in general; you own the right to exclude others from using it as applied to the goods or services you provide in your geographic area. So, for example, if you make a snow removal attachment for a lawn mower called a “Snow Cone,” you don’t completely own those words and cannot prevent an ice cream truck from selling “snow cones.”

The reason almost all local businesses don’t need to register a federal trademark is that under MCA 30-13-336 the business already has some state-law protections under the common law. In addition, a business can easily and inexpensively register its trademark with the state of Montana, which puts other businesses in the state on notice that you claim it. However, a state registration is effectively only in Montana. This is good enough for most local businesses.

Registering your trademark with the federal government protects your trademark throughout the country. However, a federal trademark is a much more complicated and expensive process than registering it with the state. Most local businesses don’t need nationwide trademark protection.

By the way, the “®” symbol after a word or phrase stands for “Registered” with the federal trademark office. The symbol “TM” means you’re claiming a state trademark. (You learn something new every day – especially when you read this blog.)

For a copy of this Ask An Attorney column, including hyperlinks to the referenced resources, go to www.OverstreetLawGroup.com/blog

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

The post Does a Montana Business Need to Trademark Its Name or Product? appeared first on Overstreet Law Group.

However – and this is a big “however” – that doesn’t mean that property isn’t divided among spouses upon a divorce. In Montana, each spouse’s separate property is subject to “equitable division.” This basically means that a judge gets to decide how the property should be divided. There is a statute, MCA 40-4-202, and a court decision, In re Funk, that provide the factors a court considers when dividing up the property. They include the duration of the marriage; each of the parties’ age, health, occupation, amount and sources of income, vocational skills, employability, and needs; the custody of any children; future economic opportunities; and any pre-nuptial agreement.

A judge has very broad discretion to divide up the property. The Supreme Court is unlikely to overturn a county judge’s decision. This means the parties’ property is truly in the judge’s hands.

Increasingly, divorcing couples avoid the uncertainty and expense of having a judge divide the property by agreeing on their own to who gets what. Given the emotional nature of a divorce – and the high stakes for each party’s future financial security – the parties often can’t settle on their own. Increasingly, divorcing couples look to some outside help to assist in the settlement process such as a mediator. A mediator is a neutral third party trained to facilitate the settlement process. Mediation is voluntary and can be cancelled at any time. It occurs outside of the court process. Each party presents information to the mediator and the mediator tries to find the areas of agreement and disagreement. A mediator often tells the parties how a judge might rule, which can sometimes persuade a party to give up an unreasonable position. Mediation costs a fraction of paying an attorney to present the case to a judge. And, since the parties are working the division of property out themselves, they often have less hard feelings with the outcome because it was their outcome. To learn more about mediation, go to the web page for Montana Mediations.

Overstreet Law Group does not take divorce cases but can help you find a good divorce attorney. Please contact us if you need one.

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

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