Why Your Business Needs Trademarks: Protecting Your Intellectual Property

Ruth Binger

By Ruth Binger



registered trademarkAuthored by Ruth Binger with assistance from Sarah L. Ayers, contributor

Trademarks are a vital aspect of intellectual property, offering unique proprietary rights with several advantages. Unlike other forms of property, a brand or trademark can remain valuable indefinitely with proper care. In fact, trademarks tend to increase in value with use. They can be sold or licensed, making them reasonably liquid assets. Additionally, trademarks serve as powerful marketing shortcuts, influencing consumer purchasing decisions for a company’s goods or services.

However, there are misconceptions surrounding the protection trademarks provide. Incorporating, qualifying to do business, or reserving the business name with various Secretary of State offices provides limited brand name protection. The right to exclude others from using a similar name on goods and services is not automatically granted. Conduct a thorough trademark search of any new corporation or LLC name used to identify a product or service to determine the availability of a mark for your specific purposes and ensure the name does not infringe on another entity’s trademark.

Trademark registration is not mandatory to establish a protectable and exclusive right to a mark. Registered trademark remedies are injunctions and damages, but often the only remedy for an unregistered mark is an injunction. Under common law, trademark rights can be obtained within a specific geographic area of use. State trademark registration does not offer protection beyond these rights. Continue reading »

NLRB Decision Places Limits on Non-Disparagement Provisions in Severance Agreements

Katherine M. Flett

By Katherine M. Flett



severance agreementAuthored by Katherine M. Flett with assistance from Kristina M. Stevenson, contributor

Non-disparagement clauses have historically been a common element of severance agreements and aim to protect an employer’s name from negative commentary by a former employee to others. The severance agreement is a contract that outlines the compensation and benefits an employee will receive in exchange for the release of any and all employee claims against the employer arising out of the employment relationship.

Confidentiality clauses limiting an employee’s right to disclose the terms of a severance agreement have also been a common element of severance agreements.

A recent National Labor Relations Board (NLRB) decision has placed a warning sign on all employment severance agreements. Retroactively, the NLRB’s decision in McLaren Macomb may invalidate non-disparagement and confidentiality clauses in severance agreements both before and after February 21, 2023. Generally, employers are now prohibited from proffering severance agreements that require non-supervisory employees to broadly waive their rights under Section 7 of the National Labor Relations Act (NLRA) in exchange for severance benefits.

Under the NLRA, Section 7 and Section 8(a)(1) work together to protect an employee’s right to unionize, assist labor organizations, and engage in concerted activities. Employers may not interfere with the Section 7 rights of their employees. To assist in understanding how non-disparagement and confidentiality clauses interfere with Section 7 rights, NLRB General Counsel Jennifer Abruzzo issued a memorandum providing guidance for the applicability of the McLaren Macomb decision.

Five Major Takeaways from the McLaren Macomb Decision Continue reading »

Crypto and Blockchain: Are They Worth Getting Into?

Corporate Law Practice Group

By Corporate Law Practice Group



blockchainWith any new technology, fortunes can be made or lost depending on where you fall in the adoption curve.  The internet, the dot-com bubble, smartphones, apps, and social media are perfect examples of technological advances that have shaped the world and left many kicking themselves for not investing in the idea when they first heard about it. Now many ask if the Bitcoin, crypto, and blockchain buzzwords they hear are the next opportunity to get in early and gain wealth. Blockchain and Bitcoin have been around for over 14 years, yet only an estimated 13-16% of Americans have owned crypto. Does this leave an opportunity to still “get in early”? Possibly, as there can be expanded use of technology beyond “currency.”

However, many still don’t fully understand the technology and it is important to be cautious when entering unfamiliar waters. As with other technologies that excelled, there are plenty that never took off or went bust like Laserdisc or Zune. The other concern is when technology becomes obsolete like VHS, DVD, and Blu-ray. This is not to say you must be an expert in space before becoming involved. I am not a mechanic, pilot, or doctor, but I still actively drive a car, fly, and take medicine without fully understanding the technology.  As with anything, it is important to exercise due diligence before putting money into anything new and understand potential risks. We trust in many things because of either government regulation or incentives for private business to ensure it works properly.

In brief, the blockchain underlying most crypto is a digital ledger kept by numerous decentralized computers which solve formulas to validate the authenticity of transactions and add them to “blocks” on the chain. This ledger is secure due to the large number of independent sources validating each transaction and maintaining the chain which may be reviewed at any time by anyone. This concept of decentralization is what helped drive its popularity following the great recession of 2008 and why some feel it can be trusted due to it not being under the control of one entity or government.

Crypto regulation has been slow to be adopted and this has led to, although warranted, perceived risks. There are numerous types of crypto and as with the dot-com bubble, there are some that are busts or shams. Continue reading »

Contracts: The Basics

Michael J. McKitrick

By Michael J. McKitrick



contractUnderstanding contracts is essential for a small business. Contracts are the basic building block of our economy and the legal principles of contract formation and enforcement go back centuries but are still in effect today.

Contracts require a “meeting of the minds” between the contracting parties and are enforceable in our courts. Contracts need to be clear and unambiguous and should be in writing and signed by the parties. In certain cases, oral contracts are enforceable but without a writing the terms are very hard to prove. For this reason, business contracts should always be in writing. The basic principle of contract interpretation by the courts is to determine what is the intention of the parties as determined by the four corners of the written document. Deals may be sealed with a handshake but fade away without a written document.

Contracts also require consideration to be enforceable. Consideration means that the parties exchange mutual promises or that one party agrees to provide a benefit to the other party or agrees to accept a detriment in consideration for the contract. A promise to make a gift is not enforceable because the receiving party has made no promise, payment or other consideration to the gifting party.

Under the Uniform Electronic Transactions Act (UETA), contracts can be signed electronically by using systems such as DocuSign as long as the parties intend to sign and do business electronically and keep a record that can be stored and reproduced as a copy. All states have adopted the UETA, including Missouri (codified at Section 432.200 RS MO 2003). Electronic contracts are just as enforceable as traditional signed contracts. Thus, it is important to note that the same basic principles of contract formation, interpretation and rules of enforcement apply to contracts in electronic or digital form. Continue reading »

Navigating the Emerging Industrial Lease Market: What You Should Know

Jeffrey R. Schmitt

By Jeffrey R. Schmitt



leaseWhile the national real estate landscape is evolving and somewhat unsettled for commercial office space, industrial real estate is in high demand. This reflects a shift in the need for logistics and manufacturing as well as employers seeking alternate and hybrid office settings.  Traditional office and industrial leasing share many of the same key terms, including pricing, common area expenses, and operational costs. However, there are additional and unique considerations for industrial landlords and tenants.

One key consideration is the appropriateness of the facility for the tenant’s use. Industrial tenants often have substantially different use needs from other industrial tenants, based upon the tenant’s industry and operations. This includes the possibility of vastly different needs in terms of transportation and loading facilities, HVAC and ventilation, floor loads, the use of data centers, and power needs.

Tenants also need to ensure that the zoning is appropriate for their needs (light vs. heavy industrial) and that there is flexibility in the lease and the facility for the tenant’s possible evolving needs over the term of the lease.

Both landlords and tenants should also consider the burden and expense of removing industrial fixtures like mezzanines, cabling, and cranes and the lease should clearly allocate these responsibilities and costs between the parties. This may require discussions about specific financial considerations to ensure the availability of funds to de-mobilize a site at lease end, including guaranties and letters of credit. Continue reading »

Blockchain: Beyond Cryptocurrency

Corporate Law Practice Group

By Corporate Law Practice Group



As with any new technology, the innovation adoption curve describes the categories of groups involved in the technology at different times. For adopters of  blockchain, the curve looks like this:

  • Innovators: The first 2% of adopters;
  • Early Adopters: The second 13.5% of adopters;
  • Early Majority: The third 34% of adopters;
  • Late Majority: The fourth 34% of adopters; and
  • Laggards: The last 16% of adopters.

Over the last two years, research has found between 13-16% of Americans have at one time owned cryptocurrency. This falls squarely into the Early Adopters Category and is approaching Early Majority. While many are still skeptical of cryptocurrency, the underlying technology is likely here to stay due to the multitude of uses beyond cryptocurrency.

The history of crypto and blockchain began when a white paper was released in 2008 by the pseudonym Satoshi Nakamoto which laid out the concept of bitcoin and the underlying blockchain which made it functional. While the code and formulas that run blockchain are far too complex for this article, the concept boils down to this:  Blockchain is a digital ledger kept by numerous decentralized computers which solve formulas to validate the authenticity of transactions and add them to “blocks” on the chain. This ledger is secure due to the large number of independent sources validating each transaction and maintaining the chain which may be reviewed at any time by anyone. Continue reading »

Illinois Passes Expansive Paid Leave Legislation: The Paid Leave for All Workers Act

Ruth Binger

By Ruth Binger



Authored by Ruth Binger with assistance from Sarah L. Ayers

fmla paid leaveOne of the most expansive paid leave laws in the nation has passed in Illinois. When the “Paid Leave for All Workers Act” goes into effect on January 1, 2024, Illinois will be one of only a few states, including Maine and Nevada, that require employers to offer paid leave for any reason or no reason at all.

Who Does the New Law Apply To?

The Paid Leave for All Workers Act applies to all individuals and public and private entities that employ at least one person in the state of Illinois. However, federal government employers, school districts organized under the Illinois school code, park districts organized under the Illinois school code, and employers who have already started to allocate sick leave under the Chicago or Cook County Ordinance are exempt.

“Employees” are broadly defined as “[a]ny individual permitted to work by an employer in an occupation.” The new law applies to in-state employees and remote employees based in Illinois who work 40 or more hours in Illinois within a 12-month period.

Under the Paid Leave for All Workers Act, domestic workers are considered employees, but the following workers are not:

  • Independent contractors,
  • Workers who meet the definition of employee under the Federal Railroad Unemployment Insurance Act or Railway Labor Act,
  • College or university students who work part-time at the institution they attend, and
  • Short-term employees who work for an “institution of higher learning” for less than two consecutive calendar quarters and do not have an expectation to be rehired.

Another important note is that individual employees cannot waive their rights under the Paid Leave for All Workers Act. However, bargaining unit employees can waive the right in a “bona fide collective bargaining agreement” if it is explicitly stated in “clear and unambiguous terms” within the agreement. Employers who have union employees are required to implement the Paid Leave for All Workers Act, even if it is inconsistent with the terms of the collective bargaining agreement, if the bargaining agreement is not set to expire for several years.

What Does the New Law Require? Continue reading »

Before You Personally Guarantee a Business Loan, Read This

A. Thomas DeWoskin

By A. Thomas DeWoskin



ppp loanMost small businesses owners have borrowed money to start and grow their businesses and, in most cases, had been requested by the lender to personally guarantee those debts. Sometimes the lender also requires the spouse to guarantee the debt, even if the spouse has nothing to do with the business.

In a loan context, a guarantee is a promise to pay the debt if the borrower is unable to do so.

In a business loan context, a personal guarantee is the promise of an individual, often the business owner, to pay the debt if the business is unable to do so.

Why is it important to pay attention to these personal guarantees?

Because starting and growing a small business is risky. If the startup fails, the personal guarantor is on the hook for those debts. All of the guarantor’s assets can be seized by the creditor once it obtains a judgment against the guarantor.

Why is it important to pay attention to a request that the spouse guarantee the debt?

Because when in Missouri a husband and wife own an asset together, such as a home or joint bank account, it is said to be owned as “Tenants by the Entirety” or TBE. In Illinois, TBE ownership is limited to homes owned by married couples.

TBE ownership is different than joint ownership. If two owners of an asset aren’t married, creditors of only one owner can reach that owner’s interest in the asset. With TBE ownership, however, only creditors of both owners can reach the asset. Obviously, it is to the business owner’s advantage not to have the spouse on the guarantee. This prevents the lender from seizing the jointly owned asset should the business fail.

Federal law protects a lender from demanding a spouse’s signature unless the spouse is a partner, director, or officer of the business or a shareholder or member. Regulation B, a provision of the Equal Credit Opportunity Act, provides that a lender cannot demand the signature of a spouse who is not involved in the business if the applicant qualifies for credit without the spouse’s guarantee and the spouse is not a joint applicant. Before your spouse signs any loan documents, be sure to consult with your attorney to ensure that a spousal signature is not required.

Should your business fail, and the lender tries to enforce the guarantee, your attorney should review the loan documents to determine if you have any defenses to the guarantee. For instance, a lender cannot enforce an “embedded guarantee,” in which some provision in the loan document itself states that the owner’s signature as a representative of the borrower also serves as a personal guarantee of the loan personally. These are not enforceable.

Because of the risk inherent in signing a personal guarantee, a separate individual signature underneath the terms of the guarantee is required for the guarantee to be effective. This can be either in a separate portion of the loan document or in a stand-alone guarantee document.

Can I limit my risk under a personal guarantee? Continue reading »

What Businesses Should Keep In Mind When Terminating an Employee

Ruth Binger

By Ruth Binger



termination letterRuth Binger was asked a few employment law questions by Ron Ameln, editor of St. Louis Small Business Monthly. Click here to see the first question about non-compete agreements and Ruth’s response. 

Firing an employee is always tricky. What are some things owners need to keep in mind if they let an employee go?

It is always hard to fire an employee. Employees strike back in a myriad of ways, some fair and some not so fair, such as filing a discrimination claim with the Missouri Human Rights Commission or the EEOC, complaining bitterly on the Glassdoor website, or, absent a non-compete, going to work for your competition or soliciting your employees and customers.

Positive actions include offering a severance agreement which includes a non-compete. Some employers make introductions to other employers where the fit might be better. This works well if the employee is not being let go because of performance but because of a lack of work or occupying the wrong seat on the bus. You could also put the employee on paid or unpaid leave for 3-6 months until the employee finds a job. It is easier to find a job if you have a job.

How important is it to have the proper documentation before firing an employee? Continue reading »

What Businesses Should Keep In Mind About Non-Compete Agreements

Ruth Binger

By Ruth Binger



Ruth Binger was asked a few employment law questions by Ron Ameln, editor of St. Louis Small Business Monthly. Here is the first question with her response. Click here to see Questions 2 & 3 about things to keep in mind when terminating an employee.

noncompeteWith the tight labor market, business owners are doing everything they can to keep employees. Some are looking at non-compete agreements. Others hope their current agreements will help keep employees in the current environment. What should businesses keep in mind with these agreements?

Non-compete agreements are negative guardrail enforcement to protect your business. To enforce a non-compete, you must be able to prove that the business has a protectible interest in its trade secrets and customer relations and the covenants are reasonable. The key is to have your employees sign non-compete agreements on the first day of employment. If you require that the employees sign the agreement post-hiring, you will have issues with morale (employee may leave) and enforceability. To ensure enforceability of post-hiring agreements, you should consider providing additional consideration, such as bonus, raises, promotions, or benefits.  Inception of employment is consideration for the on-hire non-compete.

The term “non-compete” is used to describe three types of restrictive covenants, and people use the term interchangeably. Continue reading »

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