TERMS OF SERVICE
For U.S. trademark matters, this terms of service and representation agreement (the “Agreement”) is entered into by and between Trademark Garden and the person who requests the U.S. trademark related services (“you” or “Prospective Client” or “Client.”) This Agreement becomes effective on the date the you sign digitally sign, or otherwise agree in writing to engage Trademark Garden, PLLC.
You hereby understand, give consent, and give Power of Firm to the law firm of Trademark Garden, PLLC to represent you on trademark matters before the United States Trademark Office (“USPTO”) following a successful conflict check. The Firm is a full service intellectual property law firm headquartered in Phoenix, Arizona. You understand that the Firm will represent you only after a successful conflict check, at which point you will become a Client of the Firm. Until that time, you will be a Prospective Client of the Firm only.
1. Limited Scope of Services
The Client agrees to retain the Firm to prepare and file a trademark application based on the information provided to the Firm by the Client electronically through the TrademarkGarden.com website. Specifically, the Client retains the Firm to provide the following services in connection with the trademark filing an application process:
- An initial email to the Client that confirms the information electronically provided by the Client;
- Answers to Client’s basic federal trademark law questions;
- Identifications and explanations of any likely causes of refusal that the application may face, in the opinion of the Firm;
- Explanation of 1(a) vs. 1(b) filing basis, if applicable to the application;
- Recommendations on potential for other forms of intellectual property protection such as copyright registration and patent;
- Preparation of filing documents with either the Client or the Firm taking Power of Attorney over the application, depending on the Client’s wishes. The firm reserves the right to refuse to take Power of Attorney over an application that the Firm believes is not being filed in good faith.
Therefore, the following services are EXPLICTLY EXCLUDED from the Limited Scope of Services FOR ALL FILING PACKAGES. This list is not exclusive, and is for example only:
- Any advice, discussion, or recommendations on state trademarks and/or state law;
- Review, analysis, or advice regarding common law rights by others that might preclude you from securing common law rights or acquiring federal registration, including risks of lawsuit and opposition by third parties; Review, analysis, advice regarding, or responses to from the USPTO or other government agencies;
- Review, analysis, advice regarding, or responses to, Cease and Desist letters or other communication from parties disputing ownership or other adverse parties;
- Review, analysis, advice regarding, or responses to, formal opposition proceedings against your trademark application unless otherwise agreed to, in writing;
- Review, analysis, or advice regarding prior art or trademark search results;
Review, analysis, or advice relating to appeals to the Trademark Trials and Appeals Board (TTAB);
- Any assessment of the validity, originality, or registrability of the trademark outside of the search performed on the Trademark Electronic Search System (TESS);
- Infringement of trademarks owned by third parties outside of outside of the search performed on the Trademark Electronic Search System (TESS);
- Review, analysis, or advice regarding true ownership of trademark;
- Review, analysis, or advice regarding court-sanctioned bars to registrability;
The Client may retain the Firm to provide all or some of the above enumerated services as a separate Engagement that must be agreed to in writing by both parties.
2. Service Fees and Costs
For purposes of the Limited Scope of Services, and prior to the commencement of services, the Client agrees to pay the Firm the charges described herein. The Client expressly agrees that for ALL FILING PACKAGES, the Firm’s legal fees are earned once any one of the following conditions are met:
- The Firm has sent the Reporting Letter to the email address or addressed provided by the Client, in the Client’s online order.
- Client makes use of any applicable phone time to discuss their application with an attorney or other representative of the Firm.
- The firm commences any of the Limited Scope of Services outlined in Section 1 of this Agreement.
The Firm charges fixed fee rates for Basic, Standard, and Elite filing packages, and/or hourly fees based on the type of matter and other considerations for which fees are calculated. All hourly work must be agreed to in writing prior to commencement of work, at which point an hourly fee schedule for all attorneys to be assigned to the matter will be provided to the Client.
3. Client’s Capacity to Bind Self or Business Entity
By executing this Agreement, the Client represents and warrants to the firm that the Client is not a minor, and is of otherwise sound contractual capacity to enter into this Agreement. If the Client is a business entity, association or other organization, the individual executing this agreement on behalf of the Client business entity, association, or other organization represents and warrants to the firm that the individual has the legal capacity to bind the Client to this Agreement. Any individual assenting to this Agreement on behalf of a business entity, association, or other organization understands that the business, association, or other organization is the Client, and not the individual signing the agreement, in their individual capacity.
The Client, or any other individual assenting to this Agreement on their own behalf, or on behalf of a business, association, or other organization understands that any misrepresentation as to capacity to engage in this Agreement is grounds for immediate termination of the attorney-client relationship, and removal of Power of Attorney over any pending applications with no refund possible.
The Firms’ services may be cancelled by the Client prior to the time that the any of the conditions in Section 2 are met. Service fees are non-refundable after Firm commences the Limited Scope of Services as described in Section 2.
5. No Guarantees or Warranties Made or Implied
The Firm has made no representations, promises, warranties or guarantees to the Client, expressed or implied, regarding the outcome of the Client’s matter or application with the USPTO. Nothing in this Agreement shall be construed as such a representation, promise, warranty or guarantee. The Client that not all potential issues with the Client’s application are foreseeable, and that all issues expressly disclaimed in the Limited Scope of Services will not be covered in the scope of the services. Therefore, the Firm cannot and does not warrant or represent that all of Client’s questions can be fully explored under any filing package.
The Client understands that the Firm is available for supplemental advice and consultation if the Client believes that the Limited Scope of Services is insufficient to meet Client’s needs. The Client further understands that all such arrangements for supplemental advice and consultation must be agreed to in writing, and will incur additional fees at either a fixed fee or hourly billing schedule, as agreed between the Firm and the Client. The Client understands that the Firm cannot file an Office Action response on the Client’s behalf without express agreement by the Client, and payment of additional fees by the Client. The Client further understands that the Firm cannot file an Office Action Response on behalf of the Client if the statutory time for such a Response has expired. In such cases, the Client understands that the Client will be responsible for any applicable legal and government fees required to file a revival of an abandoned application, if the application is still within the statutory revival window. The Client understands that Office Action Responses are explicitly excluded from the Limited Scope of Services for all filing packages, and must be agreed to separately, in writing.
6. USPTO Filing Process and Mandatory Disclosure of Information
The Client understands that all USPTO filing and processing fees are non-refundable. This includes cases in which the USPTO issues a refusal, as well as applications that are successfully opposed by a third party. USPTO fees are always non-refundable, even in cases in which the client wishes to withdraw an application immediately after filing.
All information submitted to the USPTO at any point in the application and/or registration process will become public record. This includes the form/format of the trademark itself, the goods/services that the trademark is for, as well as the name, phone number, email address, and physical address of the individual(s) or business entity that owns or operates the trademark. By authorizing the Firm to file the application, or undertake any other contact with the USPTO on the Client’s behalf, the Client acknowledges that the Client HAS NO RIGHT TO CONFIDENTIALITY AS TO THOSE COMMUNICATIONS as all official communications between the Firm and the USPTO on the Client’s behalf become public record. The public will be able to view all such information in the USPTO’s on-line database and through internet search engines and other on-line databases. All such information will remain publicly available even if the application is later abandoned or any resulting registration is surrendered, cancelled, expired, or otherwise invalidated. For any information that may be subject to copyright protection, the Client represents that he or she has the authority to grant, and is granting, the Firm, and the USPTO, permission to make the information public as part of the application record.
Client also understands that the Firm may publicly disclose that the Firm represent the Client, as may be required in the course of representation.
7. Consent to Alterations in Application
The Client authorizes the Firm to make changes to the Client’s trademark application for the purpose of facilitating registration of the Client’s trademark application in accordance with applicable law, as considered appropriate by the attorney assigned to prepare the application, and requested by the USPTO examining attorney. These changes include, but are not limited to the following:
The identification of goods and/or services reported to the USPTO, including the class(es) and descriptions provided by the Client to ensure accuracy and compatibility with USPTO filing requirements;
Any changes proposed by the USPTO examining attorney, or other agent of the USPTO or other applicable government agency that is examining the Client’s trademark application, including, but not limited not, disclaimers, translation statements, drawing descriptions, class changes, and changes to identification of goods and services.
Where the Client requests filing of a filing basis 1(a) in use trademark application (“1(a) Application”) with the USPTO, the Client expressly agrees and authorizes the Firm to examine the validity, authenticity, applicability, appropriateness, and suitability of the specimens (“Specimens”) submitted by the Client to the Firm to prove current use in commerce. The Client expressly agrees to not submit to the Firm any fraudulent, digitally edited, or fabricated Specimens to the Firm for use with a 1(a) Application. The Client understands that the Firm has discretion to ascertain the legitimacy of Specimens submitted to the Firm by the Client for purposes of a 1(a) Application. The Client recognizes that the Firm may refuse to submit or take Power of Attorney over a 1(a) Application based on a reasonable belief that the Specimen(s) provided by the Client are fraudulent, digitally altered, or fabricated, or that the 1(a) Application is otherwise being filed in bad faith by the Client. The Client understands that they are not entitled to a refund in such a case.
If the Firm requests the Client to provide alternate Specimens, and the Client fails to provide the requested alternate Specimens, the Client understands that the Firm cannot proceed to filing until the requested Specimens are provided to the Firm. The Client understands that this may delay the Client’s 1(a) Application, which may lead to a loss or priority or trademark rights, at no fault of the Firm.
If the Client fails to provide Specimens that are accurate, valid and acceptable, or fails to provide any Specimens at all for a 1(a) Application, the Client authorizes the Firm to file the application as a Section 1(b) “intent to use” application (“1(b) Application). In such a case, the Client expressly and voluntarily declares to the Firm that the Client has a bona fide intention to use the trademark in commerce in the United States in connection with the identified goods and/or services. The Client understands that additional fees will apply to allow such a 1(b) Application to register after the 1(b) Application is examined by the USPTO. The Firm reserves the right to remove Power of Attorney over any application on reasonable belief that the Client has provided a fraudulent specimen to the Firm, or has otherwise induced, or attempted to induce any false representation to be made to the USPTO on the Client’s behalf.
If the Client requests filing of a design mark application, the Client agrees and authorizes the Firm to file the design mark application based upon the colors expressly claimed and/or featured on the logo mark submitted by Client, or, in the alternative, in a format that does not claim any color, if the Firm feels that the Client’s interests would be better served if no color claims are made, unless a particular color claim is requested by the Client in writing. The Client understands and expressly acknowledges the Client must request, in writing, that a design mark be filed without or without a particular color claim.
8. Client’s Duties With Respect to Representations to the Firm
In providing the Firm with representations, materials, or other information to be used in conjunction with the Client’s request for services, the Client expressly and voluntarily declares the following:
- The Client believes they are exclusively entitled to use the at-issue trademark in commerce in the jurisdiction that the trademark is being filed. To the Client’s best knowledge and belief, no other person, entity, or organization has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive;
- The Client declares that all statements made by the Client to the Firm are true to the best of Client’s knowledge and belief;
- The Client acknowledges and understands that the Firm may reasonably rely upon any information, representations, and/or materials provided by Client to the Firm, and that such reasonable reliance may be to the Firm’s detriment;
- The Client understands that any willful false statements, representations, and materials submitted to the USPTO may lead to civil and criminal penalties against the Client, as well as invalidation of the Client’s application. The Client understands that the firm is not responsible for statements made by the Firm to the USPTO in reliance on the Client’s representations;
The Client understands that where the Client fails to adhere to any of the provisions listed in above, or otherwise acts in bad faith, the Client indemnifies, absolves, and holds harmless the Firm for any litigation or similar proceeding resulting from a violation of the above.
9. Discretion of the Firm and Duties of Prospective Clients
The Client understands that the Firm has discretion to select any licensed U.S. attorney currently employed by the Firm to work on any given matter, at the sole discretion of the Firm. If the Client wishes to request a specific attorney at the Firm to work on their matter, the Client must notify the firm within 48 hours of making their initial request for legal services. The Client understands that any such request is subject to the availability and consent of the requested attorney, and that the firm expressly retains sole discretion in the assignment of attorneys and other personnel to each matter.
A Prospective Client understands and acknowledges that by agreeing to this Agreement, the Prospective Client grants informed consent to the Firm to work on the relevant matter(s) on the Prospective Client’s behalf, and to earn legal fees said matters once legal work has been substantially completed. The Prospective Client understands acknowledges that a refusal risk exists for any trademark application. Risks include, but are not limited to: disclaimer requirements, ID refusals, requests for information, likelihood of confusion refusals, and others. The Prospective Client recognizes that responses to all USPTO refusals are explicitly outside of the Limited Scope of Services. The Prospective Client recognizes that there may be a risk of a third party formally opposing the application, and that advice and responses to such oppositions are explicitly outside of the Limited Scope of Services.
The Prospective Client agrees to timely respond to email and/or telephonic communications by the Firm within five (5) business days of contact by the Firm. The Prospective Client understands that failure to respond to such contact attempts may lead to delays, loss of substantive rights, or abandonment of the trademark application, at not fault of the Firm. The Prospective Client understands that the Client’s explicit written direction is required for the firm to take any action on an application, including, but not limited to, the submission of the application, Office Action Responses to the USPTO, and responses to trademark disputes by third parties. The Prospective Client understands that all post-filing actions are explicitly outside of the Limited Scope of Services.
The Prospective Client understands that all USPTO filing and processing fees are non-refundable. This includes cases in which the USPTO issues a refusal, as well as applications that are successfully opposed by a third party. USPTO fees are always non-refundable, even in cases in which the client wishes to withdraw an application immediately after filing.
The Prospective Client understands that legal fees to the Firm are earned upon significant completion of legal work as discussed in Section 2 of this Agreement, regardless of whether or not the trademark application is actually filed. The Prospective Client understands that the payment for any of the filing packages constitutes consideration for the valuable trademark search, legal analysis, Reporting Letter, and supporting legal counsel regarding their trademark application.
10. General Responsibilities of the Firm and the Client
The Client understands the Client has an ongoing responsibility respond to communication attempts made by the Firm in regard to the Client’s application with the USPTO, and to otherwise assist the Firm in the application process, including after the application has been filed with the USPTO on behalf of the Client. The Client understands that the Client has an ongoing responsibility and duty to:
- Inform the Firm of any individuals, entities, or associations known to be adverse to the Client with respect to the trademark application, or any other legal matter that the Firm is representing the Client in;
- Inform the Firm of any developments that the Client becomes aware of that impact the Client’s rights upon information and belief of the Client;
- To pay all fees owed to the Firm when requested;
- To otherwise abide by the terms of this Agreement in its entirety;
- To engage the Firm in good faith, and not for purposes of fraud, intentional creation of conflicts of interest in representation, or market research for another firm, whether that firm does or does not compete with the Firm
The Firm will, in turn:
- Keep the Client apprised of significant developments in the course of the provision of the firm’s services as required by the applicable Rules of Professional Conduct.
- Consult with the Client, as necessary, to ensure the timely, accurate, and complete preparation of all work product on behalf of the Client.
- Not disclose any communications between the Firm and the Client unless required to by law and the applicable Rules of Professional Conduct. The Client understands that disclosures of information to the USPTO as part of a trademark application are not subject to confidentiality.
The client understands that while efforts will be made by the firm to ensure confidentiality, communications will be sent to the Client via non-encrypted email. The Client understands that Attorneys at the Firm are licensed in the State of Arizona, and hereby limit their counsel U.S. federal law matters only. All questions of state law are explicitly outside of the Limited Scope of Services unless explicitly agreed to, in writing.
11. Waiver of Future Conflicts of Interest
The Client understands and agrees that the Firm’s representation of the Client is for the Limited Scope of Services defined herein only. The Client also understands and agrees that the Firm may represent parties in the future on matters that may be adverse to the Client, and the Client’s current application so long as any such future representation does not involve disclosure or use confidential information which Firm has gained it the course of its representation of the Client. The Firm will seek to prevent any and all conflicts of interest by withdrawing Power of Firm and notifying Clients to select another firm if and when necessary. The Client understands that the Firm may represent parties that are adverse to the Client’s interests in matters unrelated to the matters for which the Client has engaged the Firm at any time. The Client understands that the Firm will not use any confidential information collected from the Client in the course of the Firm’s representation of the Client for the benefit of a third party, in such cases, or any other case.
The Client agrees to inform the Firm if the Client is aware of any party with interests adverse to the Client that is currently engaged by the Firm. The Client understands that failing to make such disclosure to the Firm is in breach of this Agreement, and grounds for immediate termination of the attorney-client relationship.
The Client has the right revoke this waiver, in writing, as to any future matters undertaken by the Firm on the client’s behalf at any time. The Client understands that any such revocation will not affect any matters initiated, pending, or undertaken by the Firm prior to receipt of the written notice of revocation. The Client understands that such revocation may be cause for the Firm to decline any future representation, at the Firm’s sole discretion.
The Client is informed and recommended to consult with independent counsel prior to engaging the Firm in prior to acceptance of this Agreement under the terms of the advance waiver. The Client acknowledges to the Firm that the Client has been informed of their right to consult with independent counsel, and has had sufficient opportunity to consult independent counsel if desired. By assenting to this Agreement, the Client gives informed consent of the advance waiver above.
12. Binding Arbitration
For purposes of this Agreement, a Dispute (“Dispute”) is defined as: any dispute, claim or controversy between the Client and Trademark Garden, PLLC, its members, its employees, its agents, or its vendors that arises out of or relates to this Agreement and that has accrued or may thereafter accrue, whether based in contract, statute (including, but not limited to, any consumer protection statutes, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory.
The Client understands that the arbitrability of any Dispute is governed by the Federal Arbitration Act and not any state laws applicable to arbitrations. Regarding the substantive law of any Disputes, to the maximum extent authorized by law, the laws of the State of Arizona govern the non-arbitration related interpretation of this Agreement and the substantive law of any Dispute, regardless of conflict of laws principles.
The Client understands that any Dispute shall be finally and exclusively resolved by binding individual arbitration (“Arbitration”) conducted by the American Arbitration Association under its Consumer Arbitration Rules. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (9 U.S.C. 1-16).
The Client understands that Arbitration of the Client’s claim is mandatory and binding. The Client understands that this means that neither the Client nor the Firm will have the right to litigate that claim through a court, and that the Client and the Firm therefore expressly forfeit their rights to a jury trial and/or to engage in the discovery process, except as provided for in the AAA code of procedure.
All determinations as to the scope, interpretation, enforceability, and validity of this Agreement shall be made final exclusively by the arbitrator, and the judgment of the arbitrator shall be binding and final. Judgment on the arbitration award may be entered in any court having jurisdiction. This arbitration provision shall survive and remain in force following:
The termination of the Agreement;
The bankruptcy, winding up, or dissolution of both the Firm and the Client;
All portions of this provision are severable. If any portion of this provision is deemed invalid or unenforceable, the remaining portions shall remain in force.
No class action, or other representative action or private attorney general action or joinder or consolidation of any claim with a claim of another person or class of claimants shall be allowable.
The Client understands that the Client has the right to opt out of this binding arbitration and class action provision within 30 days. If the Client does not wish to be bound by the binding arbitration and class action provisions and waivers, the Client understands that it is their responsibility to notify the Firm, in writing, within 30 days of the date that the Client accepts this Agreement. The Client’s written notification must be e-mailed to firstname.lastname@example.org with the subject line “Opt-Out” and the message must include: (1) The full legal name of the individual or business entity opting out; (2)The address that the individual is domiciled, or the business entity has its primary place of business; (3.) The country of citizenship of the Client if the Client is an individual, or state or organization if the Client is a business; and (4) A clear statement indicating that the Client does not wish to be bound by the terms of the arbitration provision.
All arbitration under this provision will be conducted by the AAA under its Commercial Arbitration Rules. If the value of the dispute is $75,000 or less, the Supplementary Procedures for Consumer-Related Disputes will also apply. The Client agrees to commence arbitration only in the Client’s county of residence or in Maricopa County, Arizona. Nothing herein prohibits the Firm from asking the arbitrator to award Trademark Garden, PLLC all costs of the arbitration.
If the Dispute is not arbitrated by choice of the parties, or if a court of competent jurisdiction does not compel arbitration for whatever reason, the Dispute will be decided by a court without any right to trial by jury for either the Firm or the Client. By executing this Agreement, THE CLIENT AND THE FIRM THEREFORE AGREE TO SURRENDER ANY CONSTITUTIONAL RIGHT TO TRIAL BY JURY. Any such court proceeding, including any efforts to compel arbitration, or any initially filed lawsuit that arises out of, or relates to, this Agreement or use of the the Firm’s website shall be decided exclusively by a court of competent jurisdiction located in Maricopa County, Arizona, or the District of Arizona.
13. No Modification Except in Writing
The Client understands that that this Agreement cannot be modified, except in writing, as agreed to, laid out in a writing, and executed by the Client and the Firm.
If any term, clause, or section of this Agreement is found to be invalid, illegal or unenforceable in any respect, for any reason, by a competent authority, the validity, legality and enforceability of this Agreement in every other respect shall remain in effect.
15. Effective Date
This Agreement shall commence, and become effective on the date that an individual or entity digitally signs, or otherwise agrees, to be bound by this Agreement, and becomes a Prospective Client of the firm.
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