admin No Comments

Delaware Statutory Trust

Joshua M. Twilley, President of Incorporating Services, Ltd. shares with us his insight on the Delaware Statutory Trusts.

Delaware is long known to be a leader in corporate law, but Delaware is also a trailblazer in trust law.  In 1988, Delaware was the first state to adopt a legal framework governing trust law, with the passage of the Delaware Business Trust Act, which governs the Delaware Statutory Trust (DST).  While other states have adopted similar legislation, the Delaware version has evolved over the years.  Today, the DST is considered the preferred vehicle for trust activities that involve financial transactions.

What is a Delaware Statutory Trust?

In an ordinary trust relationship, a fiduciary would hold legal title on a property on behalf of another, who held the equity title.  These trusts are governed by a Common Law framework.  The Delaware Business Trust Law allows for the creation of a Delaware Statutory Trust (DST).  The DST is considered a separate entity which can in many ways behave like a corporate entity, with a body of trustees and a group of beneficial owners.

What makes a Delaware Statutory Trust a preferred vehicle?

This structure offers a number of advantages.  The trust can have multiple trustees and beneficial owners, who receive the same liability protection afforded to stockholders of a Delaware corporation.  As an independent entity, the DST can enter into contracts while still protecting beneficial owners, and even provides beneficial owners protection in the event of bankruptcy.  Finally, the Delaware Court of Chancery, widely considered one of the best corporate and trust courts in the world, has jurisdiction over the DST.

How is a Delaware Statutory Trust formed and maintained?

Forming a DST is an easy process, requiring a certificate of trust to be filed with the Delaware Secretary of State, along with the Trust Agreement.  There are no annual maintenance requirements (franchise tax or annual report) for a DST.  A Delaware resident must be named as a trustee.

Incserv can assist in all aspects of filing the Delaware Statutory Trust and can provide a Delaware resident as a trustee.  Contact us for more information.

The information within this post is intended for general information purposes only. Incserv and its employees cannot offer legal or financial advice. Please consult with your legal counsel for assistance in how this information may or may not affect you and your business prior to making any decisions. The above information (and any attachments) should be judged accordingly.

admin No Comments

Delaware SOS Cut-Off Times Altered!

On Friday, June 17, 2016 an Employee Recognition Luncheon is planned for all the employees of the Delaware Secretary of State – Division of Corporations. State services have been altered.

delaware

 

There will be NO “Same Day” or “Must Approval” service filings for this day.

All 30 Minute and One-Hour service filings must be received prior to 10:00 AM (ET), Two-Hour service filings will need to be received prior to 9:00 AM (ET) and 24 Hour service filings must be received prior to 12:00 PM (ET).

We will be able to secure filing dates and times until 10:30 PM (ET).

To meet these deadlines, IncServ must receive all filings AT LEAST 15 MINUTES before the DE SOS corresponding cut-off times.

IncServ will have full-staff available to meet all of your corporate and UCC needs. Contact us via email or call 800.346.4646 (International callers please dial 302.531.0855).

admin No Comments

Panama Papers and State Responses

Panama Papers and State Responses

Joshua M. Twilley, President of Incorporating Services, Ltd. shares with us the following with regards to the Panama Papers.

The release of the Panama Papers has spotlighted the use of corporate entities for the purposes of hiding assets in offshore accounts. While relatively few US individuals or entities were named in the Panama Papers, the papers did cause states to look more carefully at their practices to see if they could be the next Panama.

Some states have been using best practices for years, and other states are just now beginning to adopt best practices. Other states, in the meantime, have seen the introduction of legislation designed to make beneficial owners public record. At the Federal level, the Office of Foreign Asset Control (OFAC) offers some guidance for registered agents, while there is some movement to federalize certain record keeping practices.

Delaware
Under the guidance of the Deputy Secretary of State, Rick Geisenberger, Delaware has been a leader in developing and implementing best practices. Delaware standards can be found here (https://corp.delaware.gov/agtwebreq.pdf), but in summary, professional registered agents must:

  • Adhere to a high level of honesty and integrity; registered agents who have been  convicted of a felony or any crime which includes elements of dishonesty, fraud, or moral turpitude may may lose registered agent status
  • Maintain a “Communications Contact” for every legal entity for which they represent
  • May not market “shell”, “shelf” or “aged-shelf” companies
  • May not market or make claim for offering “anonymity”, “secrecy” or “hidden owners”, or market deceptive or other services contradictory to the Delaware entity statues

Further, the Delaware Division of Corporations frequently conducts audits of it’s professional registered agent community to make sure these Standards are adhered to.

Wyoming
Twenty-four Wyoming entities were implicated in the Panama Papers, which resulted in discussion within the state on adopting best practices. Earlier this month, the Secretary of State, Ed Murray, published the results of an internal audit of its processes, and recommended two important practices. First, he recommended addressing the practice by registered agents of offering “secrecy”, “anonymity”, or “hidden owners”. Second, he proposed to disallow registered agents from being named as the communications contact for entities they represent. For a discussion of his methodology and recommendations, check out this summary: http://www.wyomingnews.com/opinion/murray-wyoming-business-laws-effective/article_ae326a6c-1f14-11e6-bb98-bf65271db2d8.html

Federal Level
The Office of Foreign Asset Control (OFAC) has specific guidelines governing the professional registered agent industry “Foreign Assets Control Regulations for the Corporate Registration Industry”. While these guidelines acknowledge the primary burden of asset control falls on the financial industry, it does lay clear expectations for organizations involved in the corporate registration process. Specifically, these organizations are not to do business with a sanctions target, and if there is a reason to be suspicious of an applicant, the organization should request further information to determine if they are working with a sanctions target, and if so, OFAC should be contacted. It should be noted that OFAC has recently removed these guidelines from it’s website, perhaps in anticipation of the new Federal guidelines as outlined in the next paragraph.

In early May, the Federal government issued two new sets of proposed regulations that give the Federal government authority to collect and track beneficial ownership information. The first would require business entities owned by foreign individuals to obtain an EIN, maintain adequate records, and file informational returns to the IRS (see http://www.cadwalader.com/resources/clients-friends-memos/in-wake-of-the-panama-papers-treasury-proposes-new-reporting-requirements-for-foreign-owned-legal-entities for a discussion). The second is final update to FinCEN rules which would require financial institutions to identify beneficial ownership and control of entity customers at the time of account opening, and conduct ongoing customer due diligence for high risk customers (see http://www.cadwalader.com/resources/clients-friends-memos/fincen-issues-final-rules-for-customer-due-diligence-requirements) . With the proposal and adoption of these rules, the Federal government is taking a leadership role in maintaining and tracking foreign ownership legal entities in the US.

For more information or to reach out to Josh, contact us at 302-531-0855 or info@incserv.com.

admin No Comments

Intellectual Property Series FAQ – Part II

Intellectual Property Series FAQ – Part II

As a continuation of our Intellectual Property Blog Series, Marvin Lawrence from our Washington, DC office expands a bit on the various types of patents. Marvin is a Client Service Representative specializing in Intellectual Property.

What are Patents?

Patents are a property right granted by the Government of the United States of America to an inventor “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.

Are there different categories or types of patents?

The U.S. Patent and Trademark Office (USPTO) issues several different types of patent documents offering different kinds of protection and covering different types of subject matter.

A recently issued USPTO patent document is one of six types, generally described below. See U.S. Code Title 35 – Patents, for a full description of patents and patent laws.

Utility Patent – Issued for the invention of a new and Useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof, it generally permits its owner to exclude others from making, using, or selling the invention for a period of up to twenty years from the date of patent application, subject to the payment of maintenance fees. Approximately 90% of the patent documents issued by the USPTO in recent years have been utility patents, also referred to as “patents for invention”.

Design Patent – Issued for a new, original, and ornamental design embodied in or applied to an article of manufacture, it permits its owner to exclude others from making, using, or selling the design. Design patents issued from applications filed on or after May 13, 2015 shall be granted for the term of fifteen years from the date of grant. Design patents issued from applications filed before May 13, 2015 shall be granted for the term of fourteen years from the date of grant. Design patents are not subject to the payment of maintenance fees.

Plant Patent – Issued for a new and distinct, invented or discovered asexually reproduced plant including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, it permits its owner to exclude others from making, using, or selling the plant for a period of up to twenty years from the date of patent application.  Plant patents are not subject to the payment of maintenance fees.

Reissue Patent – Issued to correct an error in an already issued utility, design, or plant patent, it does not affect the period of protection offered by the original patent. However, the scope of patent protection can change as a result of the reissue patent.

Defensive Publication (DEF) – Issued instead of a regular utility, design, or plant patent, it offers what limited protection, defensive in nature, to prevent others from patenting an invention, design, or plant. The Defensive Publication was replaced by the Statutory Invention Registration in 1985-86.

Statutory Invention Registration (SIR) – This document replaced the Defensive Publication in 1985-86 and offered similar protection. Please note that the America Invents Act (AIA), which was signed into law on September 16, 2011, repeals provisions pertaining to statutory invention registrations and the issue of these documents will be discontinued.

If you need assistance with searching or filing requests with the US Patent Trademark Office, please contact our Washington DC office directly at 202-386-7575.

Resources include:
http://www.uspto.gov/web/offices/ac/ido/oeip/taf/patdesc.htm
admin No Comments

Jurisdictional Closures for June 2016

Jurisdictional Closures for June 2016

Please see the list below for this month’s jurisdictional closings. Dates and information are subject to change.

jurisdictional-closures-for-june-2016

Please check out our blog posts throughout the month for any last minute changes or updates from these or any other state or local office.

If you have any questions or need assistance, feel free to contact us at 800-346-4646 or via email at info@incserv.com.

admin No Comments

Intellectual Property Series FAQ – Part I

Many of our clients include a search of the United States Patent and Trademark office as part of their due diligence process. Marvin Lawrence from our Washington, DC office expands a bit on the various types of patents. Marvin is a Client Service Representative specializing in Intellectual Property. If this type of request is new to you, please see some of the frequently asked questions below (FAQ). If you don’t see your question addressed here, email us at info@incserv.com.

What are Patents?

Patents are a property right granted by the Government of the United States of America to an inventor “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.

What are Trademarks?

A trademark is a protection of words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods. Trademarks, unlike patents, can be renewed forever as long as they are being used in commerce.

What is a trade name and where are they filed?

A trade name is a pseudonymused by companies to perform their business under a name that differs from the registered, legal name of the business. A trade name is filed at the Secretary of State.

What are some of the benefits of Federal Registration?

(i) it grants the right to use the registered trademark symbol: ®, (ii) it grants the right to file a trademark infringement lawsuit in federal court and to obtain monetary remedies, including infringer’s profits, damages, costs, and, in some cases, treble damages and attorneys’ fees, (iii) it acts as a bar to the registration of another confusingly similar mark, and (iv) it may serve as the basis for an international trademark application.

What is a Service Mark Filing?

A service mark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of a service rather than goods. The term “trademark” is often used to refer to both trademarks and service marks.

What is a copyright?

A Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phono records of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are issued by the Library of Congress.

What types of things are protected by copyright?

Copyright is a form of protection provided by the laws of the United States to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

What information do I get with a copyright search?

It depends on the type of search being requested.  Some of the more popular searches are the “chain of title”, “portfolio” and “in-process” searches.  The chain of title search provides basic claim information as well as any recorded instruments and new submissions on record for a “specific title.”  The portfolio search is a search for any claims, recordation or new submission on record under the name of an individual or company at the US federal level.  The in-process search is a search for new submissions to the US Copyright Office by name or title.

What is the Digital Millennium Copyright Act of 1998?

The Digital Millennium Copyright Act (DMCA) is a United States Copyright Law thatimplements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights manager or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the internet. Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17of the United States Code to extend the reach of copyright, while limiting the liability of the providers of on line services for copyright infringement by their users.

Can I get a search of the U.S. Copyright Office records for recorded assignments and security interests?

The Copyright Chain of Title search will provide results for Assignments and Security Interests

What is a PTO Ownership search and can you include that with my due diligence searches?

When conducting due diligence searches to determine assets held on the state level, you may choose to conduct various searches to determine the current owner of federal patents and/or trademarks.  As with copyright, you may conduct a patent and/or trademark chain of title search to determine the owner(s).

How can I follow the chain to see if a patent or trademark has been assigned?

A Chain of Title search will provide this information.

How do I file a trademark assignment?

Complete the Trademark Cover Sheet and submit a copy of the Trademark Assignment.

What are Trade Secrets and how do I protect them?

A fourth type of intellectual property, in addition to patents, trademarks, and copyrights, is trade secrets. Trade secrets consist of information and can include a formula, pattern, compilation, program, device, method, technique or process.

Contrary to patents, trade secrets are protected without registration, that is, trade secrets are protected without any procedural formalities.

See for more information on how the US can provide protections:  http://www.uspto.gov/patents-getting-started/international-protection/trade-secret-policy

If you need assistance with searching or filing requests with the US Patent Trademark Office, please contact our Washington DC office directly at 202-386-7575.

Resources include:
http://www.uspto.gov/web/offices/ac/ido/oeip/taf/patdesc.htm
https://en.wikipedia.org/wiki/Trade_name
http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/trademarks_101_part_2_the_benefits_of_federal_registration.html
http://www.copyright.gov/circs/circ01.pdf
http://www.copyright.gov/circs/circ01.pdf
https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act
http://www.uspto.gov/patents-getting-started/international-protection/trade-secret-policy
admin No Comments

DC Lunch Seminar Series is Back!

As promised in our Intellectual Property Blog Series our free lunch seminar series has returned and you’re invited to attend.

“An Open Forum Discussion of Intellectual Property”

Featuring:

Lita Rosario, Esq.

Entertainment and Intellectual Property Attorney

WYZ Girl Consulting

Dora Best

Manager, Trademark Assistance Center

United States Patent and Trademark Office

Dawn Sanok

Attorney-Advisor, Office of the Commissioner for Trademarks

United States Patent and Trademark Office

and…

A Patent Attorney to answer your questions about protecting inventions!

This seminar and discussion will focus on relevant Copyright, Trademark and Patent laws and procedures.  Topics to be discussed included:

  • Copyright Registration Process – what can be copyrighted, when copyright registrations are to be filed, durations and protections afforded to copyright registration
  • Trademark & Service Mark Application Process – trademark searches and distinctions between word marks and design marks, durations and protections afforded by application
  • Relevant changes to Patent Law – the America Invents Act, the Patent Application Process (Provisional v. Non-Provisional), available patent resources, durations and protections afforded under the law
  • Protection of Trade Secrets, Copyrights, Trademarks, and Patents – infringement and enforcement, injunctions, damages, attorney’s fees and costs

Location: The Buchanan Training Room – Metro Center Office Center

700 12th Street, NW, Suite 700, Washington, DC  20005

Date:  Wednesday, June 8, 2016

Time:  Session One: 11:30 am – 1:00 pm or Session Two: 2:00 pm – 3:30 pm

To reserve your seat click here!

Be sure to indicate which session you’d like to attend.

(Please inform us at the time of reservation of any dietary restrictions)

admin No Comments

Mississippi – Scam Alert

Renee T. Kent, Senior Client Services Representative recently received the below notification from the Mississippi Secretary of State:

The Mississippi Secretary of State’s Office has been notified of a Compliance Mail Scam.

Newly formed businesses in Mississippi have received postcards in the mail from a private organization informing them of a “potential compliance violation”. They have asked you to call a toll free number where you are informed a certificate of good standing is needed. This statement is false. Further, in one instance, the individual stated he was with the Secretary of State’s Office. This is also false. A copy of the postcard is attached herein.

Please note, this postcard is not from the Mississippi Secretary of State’s Office and no action is required by this Office.

If you have had communication with this organization, please contact the Business Services Division of the Mississippi Secretary of State’s Office at 601-359-1633.

ms-scam-alert

Incorporating Services, Ltd is here to assist you if you have any questions or if you have received this communication.  Contact us at 800-346-4646.

admin No Comments

Intellectual Property Series – Part I

Incorporating Services, Ltd. (Incserv) invites you to follow our blog series on Intellectual Property. Marvin Lawrence is a Client Services Representative in our Washington, DC office specializing in Intellectual Property. Marvin shares with us this initial installment in the series as we prepare for our 2016 Incserv Lunch Seminar Series to be held in June. The seminar will include a panel of experienced Intellectual Property attorneys including one from the US Patent and Trademark Office.

Intellectual Property is simply a term referring to creations of the intellect for which a monopoly is assigned to designated owners by law. It controls the ownership of ideas and the expression thereof. The most common types of intellectual property are Trademarks, Patents and Copyrights. The United States Patent and Trademark Office (USPTO) handle patents and trademarks, while the United States Copyright Office, under the Library of Congress, handles copyrights. Let’s briefly explore the types of intellectual property.

A Trademark is a recognized sign, design or expression which distinguishes products or services of a particular trader from the similar products or services of other traders.

A Patent is a form of right granted by the government to an inventor, giving the owner the right to exclude others from making, using selling, or importing an invention for a limited time period.

A Copyright gives the creator of an original work exclusive right to it, usually for a limited time. Copyright applies to creative or artistic works and the manner in which they are expressed.

Examples of intellectual property cross our paths all throughout the day. A logo or a slogan is an example of a trademark. You probably pass hundreds of examples of trademarks on your way to work or school each day.

Patents are typically inventions and may include development of computer software, chemical formulas and processes, cosmetics, and many other products we use or see every day. The way a business does something or performs a function and its method for doing so may be patented. An example of an approved patent is Amazon’s “1-click Ordering”. This process provides expediting of online orders by the click of one button without having to complete all details.

You will find reference to a copyright on movies, music, games, artwork and many creative products that we use for entertainment purposes daily.

Next in our series, we will share the most frequently asked questions we receive with regards to intellectual property. Contact us at any time if you need assistance or feel free to call the specialists in our Washington, DC office at 202.386.7575.

admin No Comments

Jurisdictional Closures for May 2016

Please see the list below for this month’s jurisdictional closings. Dates and information are subject to change.

jurisdictional-closures-for-may-2016-1

 

Please check out our blog posts throughout the month for any last minute changes or updates from these or any other state or local office.

If you have any questions or need assistance, feel free to contact us at 800-346-4646 or via email at info@incserv.com.

                            Have a Happy and Safe Memorial Day Weekend!