Use A Cease and Desist Letter in New York

Proper use of a cease and desist letter is the first measure a business can take to protect itself from copyright and trademark infringement – as seen in recent news articles.  GiGi New York sent Gigi Hadid and her Tommy Hilfiger collaboration a cease and desist letter because of the similarities in the styling of their name of a new line of clothing called “GiGi,” which GiGi New York believes has the potential for customer confusion between the brands. GiGi New York has owned their trademark, “GiGi New York” for certain leather goods it produces, but only filed an application for the trademark “GiGi” after Hadid’s recent runway show. A cease and desist letter is a tool that businesses use for any number of reasons including to stop harassment, assert ownership rights, or when they just want to formally tell someone to stop doing something harmful to their business. It

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New York City Forcing Certain Employers To Sign “Labor Peace” Agreements

New York City is trying to force certain employers to sign “labor peace” agreements with unions. Last month, NYC Mayor Bill de Blasio issued an executive order requiring property developers receiving at least $1 million in “financial assistance” to require any large retail and food service tenants on the premises to accept “labor peace” agreements. These so-called “labor peace” agreements would prohibit companies on these premises from opposing the union organization of employees. These kinds of agreements already exist in the state’s Public Authorities Law, which requires hotels, convention center operators and certain contractors to negotiate a “labor peace” agreement with corresponding labor organizations. The New York law applies specifically to all “retail or food establishments” on the premises of any New York “city development project” that is expected to be larger than 100,000 sq. ft, that (a) sells goods, food, or drinks, (b) that employs, or will employ 10 or more

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NY’s Family Leave Law: What It Means For NY Small Businesses

Earlier this year, New York enacted the NY Family Leave Law, which mandates NY businesses, including small businesses, to provide family leave for most employees.  This article is part of our ongoing series of laws that NY small business owners should consider.  Under the new law Family Leave Law in New York, your NY business must offer both full-time and part-time employees who have been employed for a minimum of six months up to 12 weeks paid time off if they are (a) new parents (including adoptive parents); (b) individuals who need to take care of a family member with a serious medical condition; or (c) individuals with a need to relieve family pressures after a spouse, domestic partner, child or parent has been called to active military service.  The new law applies to every kind of business.  There is no exception for NY small businesses. Starting on January 1, 2018, eligible employees can

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Filing a DBA Name In New York

If you want to conduct business under a trade name that is different from the name used to form your New York business, then you need to file a DBA, or a “doing business as” name, in New York. DBAs are useful for a number of reasons. They allow a business to open a bank account under a different name. They also allow a business to build a brand or product in a name other than the legal name of the business itself. Perhaps the most well-known example of a company using a “DBA” is Doctor’s Associates Inc., which is doing business under the well-known brand “Subway.” As the story goes, Doctor’s Associates Inc., which derives its name from the principal owner’s initial goal to earn enough money to pay for school tuition, was created for the operations of “Subway.” There are different requirements for different entities wishing to create a

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NY Agency Law Basics: Obtaining an agent to distribute your products in New York

New York Agency law deals with the relationship between an “agent,” and a “principal.” An agency relationship forms when a principal asks an individual to act on behalf of the principal and the action of the agent may bind the principal in some way.  Agency, in short, is a fiduciary relationship where an agent acts for a principal subject to control of the principal. Under these circumstances, a principal will be liable for contracts entered into by agents when (1) the a fiduciary relationship exists between an agent and principle  (2) the agent acted with some kind of authority, and (3) a contractual obligation is created between the agent and a third party.  The idea of authority can be a tricky one to nail down. Actual, Apparent  & Inherent Authority to Act for a Principal in New York An agency relationship can be, and often is, enforced by written agreements

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Proven Negotiation Tactics For New York Small Businesses

When you are running your own business in New York, you must become a skilled negotiator.  New York can be a tough place and many sharks abound. In its simplest form, negotiation means a discussion between parties looking to reach an agreement. While the concept is easy to understand, the process of negotiation is as much art as it is science. As a start on your road to becoming a good negotiator, here are some basics to think about before beginning the negotiating process. Know Your Worth Many people feel that the hardest thing to learn is their own self-worth. You and your business have much to offer – know that you are good enough to ask for the money you want! If you don’t believe in yourself, how do you expect to convince someone else to believe in you or your business? Understand Your Worth Information is power. Know

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NY Commercial Lease Agreements Basics: New York Lease Agreements

When negotiating your commercial lease in New York, it is important that you know these type of New York leases that may be offered to your New York business.  Leases in New York are not take it or leave it.  We work with tenants and landlords and negotiations are possible. The following are the typical leases offered to New York businesses.  Other variations are, also, possible. Lease Types in New York Single Net Leases in New York In a Single Net Lease (Net Lease), the tenant generally pays utilities and property taxes in addition to the base rent. The landlord usually pays for maintenance, repairs and insurance. New York Double Net Lease (Net-Net Lease) The tenant pays for utilities, property taxes and insurance premiums for the building in addition to the base rent. The landlord, usually, pays for maintenance and repairs. New York Triple Net Lease (Net-Net-Net Lease) The tenant

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Consumer Safety Alert: 500K “Hoverboard” Scooters Recalled For Fire Hazard

If you purchased a “hoverboard” self-balancing scooter in the past year, be aware that ten major companies and retail stores that produced over 500,000 of them have issued a recall of the devices.  I bought one for my child and, thus, this news was interesting for me. The recall is due to a design defect where the lithium ion battery packs overheat, posing a risk of the hoverboard smoking, catching fire and even exploding. Most of the defective “hoverboards” were purchased from June of 2015 to May of 2016 for between $350 and $900. According to the Wall Street Journal, self-balancing scooters that don’t meet a new safety standard that governs the electrical drive train system, including the battery and charger system have been recalled. The U.S. Consumer Product Safety Commission endorsed the standard, called UL 2272, in February. To date, defective “hoverboards” have caused over $11 million in property damage,

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Authenticating International Documents for use in New York

If you want to enforce a judgment in New York, or any other international document, headed to or coming from another nation, you should understand the process by which those documents are authenticated. An American court will not take a foreign document at face value. It must be authenticated before it can be considered by a New York court. That means the document must go through a process of authentication, or legalization. Most documents require and Apostille. The easiest method is to obtain an Apostille, which is an authentication of a public document that governments issued if they are a party to the 1961 Hague Convention abolishing the Requirement of Legalization for Foreign Public Documents. The Convention provides for simplified certification of public and/or notarized documents to be used in countries that have joined the Convention. Signatory countries have agreed to recognize public documents issued by other signatory countries under

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Vimeo Prevails in New York Copyright Infringement Appeal

Vimeo, an internet service provider that allows users to upload audio and video content, is not liable for copyright infringement  in New York after the Second Circuit Court of Appeals reversed a Manhattan Federal Court decision. By reversing and remanding the decision of a Manhattan Federal Court, the Second Circuit Court of Appeals has affirmed that the Digital Millennium Copyright Act (DMCA) grants an internet service provider a “safe harbor” from infringement claims, regardless of the publish date of recordings. In the matter of Capitol Records v. Vimeo, Capitol Records sued in Manhattan Federal Court for copyright infringement, claiming that Vimeo should be held liable for users publishing copyrighted materials, including music recorded before 1972. The Second Circuit disagreed, holding that construing DMCA as leaving service providers like Vimeo subject to liability for the acts of users posting materials that may infringe copyright “defeats the very purpose Congress sought to

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NY Franchising Red Flags

If you are thinking about entering into a franchise agreement in New York, please consider these New York Franchise Warning Signs.  All of the laws in New York that are intended to protect potential investors in franchises are not meant to act as a substitute for good business sense, so be aware of these common red flags, do your due diligence and hire a New York franchise lawyer to assist in the negotiation and evaluation of the franchise opportunity. Failure to Disclose Legally Necessary Details to Franchisees Under New York law, no offer or sale of a franchise can take place until the franchisor has registered franchise disclosure documents (FDD) with the state of New York.  Sometimes called a prospectus, the FDD contains 20+ different items of information about the franchise including the the history of the fanchisor, required fees and investment costs – among other things.If you do not receive

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New York Legislature Debate: Can Uber And Lyft Expand Throughout New York State?

New York state lawmakers are debating legislation that would give motorists insurance coverage to transport passengers booking trips on ridesharing companies around New York state. Uber and Lyft, both of whom have seen great success in New York City, have been lobbying Albany to expand their services into upstate New York.  However, New York lawmakers remain divided over how much these app-based ridesharing services should be required to pay in insurance costs.  Uber has opposed a bill emanating from the legislature, claiming that insurance costs would be too high. Uber wants to operate state-wide to allow it to purchase insurance so that communities who want it can start welcoming its services.  However, some lawmakers believes that the ridesharing companies need to work out rules of operations with cities and towns around the state. Unless a new agreement is reached before the end of this week, it would seem that these ridesharing

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New York May Make Airbnb Short-Term Rentals Illegal: New York Rental Law Updates

New York may pass legislation by the end of the week making it illegal for New Yorkers to list short-term rentals on Airbnb. In a rare show of bipartisan support, a bill to ban Airbnb-style posts for short-term sublets could get floor votes on the floors of the New York State Assembly and New York State Senate this week.  If the Anti-AirBnB Law is signed into law, advertising short-term sublets or any use other than permanent residency of these sublets shall be illegal in New York. The legislation seems focused on commercial users of Airbnb who turn their residences into illegal and unregulated hotels. Under these new New York laws, the liability for advertising short-term rentals would shift from building owners to the renters and those who place the advertisements on sites like Airbnb, with penalties ranging from $1,000 for a first offense to $7,500 for third and subsequent violations.

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Subjective Phrases In Your Contracts

When negotiating your contracts, normally, you should stay away from subjective phrases or you may be leaving yourself open to a court’s interpretation. Subjective phrases are those that are shaded by feelings, experiences and depend upon one’s individual point of view.  More often than not, they are loosely-defined words and phrases that may mean one thing to you, but something else to the other party. These phrases are like landmines in your contract, and must be avoided, if possible: Avoid phrases like “reasonable” or “best effort.” While attorneys may make a distinction between the two, courts have inconsistently applied the two, sometimes even merging the standards. While that would be alright if business goes smoothly, it could create protracted litigation if things turn bad. Avoid phrases like “material” and “substantial” unless you specifically define its meaning in your contract. Failure to define a term is an invitation for allowing a court

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Protect Your NY Company’s Confidential Information

Every NY business keeps confidential information that it must protect from three common occurrences in the course of operations: Accidental Disclosure The most common way a NY business will lose protection of confidential information is through accidental disclosure. This is most likely because NY businesses fail to outline to employees, independent contractors, consultants and service providers what information must remain confidential. Failure to Create Confidentiality Agreements & Non-Compete Agreements Sometimes, a NY business may identify the confidential information that it will need to offer to an employee, independent contractor, consultant or service provider, but not take any additional steps to preserve that confidentiality. If and when that confidentiality is breached, the NY business is left with little to no legal recourse, in most cases, until the business has a confidentiality agreement. Theft by Ex-Employees Some employees who leave a NY business may be tempted to make a copy of confidential

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Protecting your Intellectual Property in New York: NY IP Law Basics

All businesses, including New York businesses, must take steps to protect their trademarks, brands and other IP.  Our international lawyers work throughout Asia and North America and have seen too many issues because of not implementing an IP Protection Strategy, not registering IP, not understanding the domestic value of IP and not considering the global value and differences in foreign law to U.S. law. Here is what we recommend you must do, at a minimum, to secure your Intellectual Property: Form an IP Audit Team.  Form a team to audit your intellectual property – trademarks, service marks, books, manuals, patents, etc. – to determine what assets you have and what needs to be protected. Your attorney should head, or at least, assist this team. Register your Intellectual Property.  Protect your trademarks by registering them with the USPTO (United States Patent & Trademark Office), which will provide your business, logos, symbols

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Are NYC Rent-Controlled Tenants Using AirBnB Breaching Their Leases?

AirBnB may be an answer to homeowners and property owners looking to supplement income, but if you are a New York City landlord of a rent-controlled property – beware!  Your tenants may be breaking the law!  For the uninitiated, AirBnB is an online marketplace where prospective guests look for a bed to stay in from hosts listing spare rooms and properties for short term rentals.  They operate very much like a hotel where guests stay in the host’s property for a fee. In New York City, landlords and property managers have been cracking down on tenants seeking to get in on the AirBnB action by subletting out their space for amounts exceeding their subsidized rent, in clear violation of the New York Landlord-Tenant Law.  Recent decisions shed some light on why AirBnB, though seeing a growth in popularity, are facing many legal issues when the hosts is not the property owner.

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New York Partnership & Joint Venture Due Diligence Checklist

We, regretfully, see too many New York, New Jersey and Connecticut companies entering into business relationships with foreign nationals & corporations with little foresight.  Often cultural and divergent business ethics leads to immediate issues.  The following Merger & Acquisition Due Diligence Checklist is intended as a guide to vetting a prospective partner/joint venture for business in New York.  The list is not exhaustive and an experienced New York attorney is, normally, necessary to join your due diligence team.  This list is, also, useful for those doing being with New York companies and individuals, but was specifically tailored based on experience with Asian companies.  Please don’t chase an opportunity without considering the risks.  The cost is, likely, less than you think and risks are, likely, greater than you imagine. This New York-Focused Merger & Acquisition Due Diligence Checklist is not a substitute for retaining a New York attorney to assist with your New

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Protect your NY Business From Fraud

It’s no secret that small businesses have a higher fraud rate of employees being prosecuted for fraud and being the victim of fraud than larger companies and non-business owners. That is because they are the most susceptible to attacks due to their failure to take time to implement measures and internal policies to prevent fraud. Fraud can come from any direction. A frequent source of fraud is credit card abuse – largely due to business owners failing to take the time to thoroughly review their bills and the lack of having an audit system in place.  Fraud stems from a general failure of security across the business, from inadequate cyber-security to failure to run background checks. You can increase your security and give you and your business the best chance to avoid being a victim of some of the common types of fraud and cyber-crime by following these simple tips:

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New York Small Business Taxes

Here are the basics of New York Business Taxes applicable to small businesses doing business in New York.  Please New York sole proprietorships do not pay any corporation franchise taxes or filing fees. The sole proprietor shall, only, pay state and federal personal income tax individually. New York partnerships are considered “pass-through” businesses where the income passes to individuals. New York partnerships do not pay federal or state income taxes, but are subject to state filing fees, which are calculated based on gross income. The effective maximum tax in New York is $4,500. New York limited liability companies can be classified as a partnership, a corporation or as a “disregarded” entity. New York limited liability companies that classify as a corporation pay corporation franchise tax under the same rules as traditional corporations. New York limited liability companies that classify as a partnership follow the same filing fee scheme as New

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