ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

Immigration Law Blogs on ILW.COM

description

  1. E2 Visa Investors - What you need to know about Trademarks!

    As the economy rebounds we get more and more investors calling, emailing and writing to us about their new Business Ideas.  We are working on social media projects, crazy food business ideas, fitness and matchmaking projects. They all have catchy names and great logos. In additon to the solid E2 Visa advice we hope to offer, a bit of Trademark law could be useful as well.
    "Can I trademark this?" is a common question. The answer is generally, "Yes," but not for the reasons you may think. In the United States, you must create a trademark yourself. A patent does not exist before it is granted by the government. This is not true for trademarks. Rather like an automobile, you must have a trademark before you can register it. To have a trademark, you must create it.
    A trademark is a designation that distinguishes the source of goods or services, usually a brand name or a model name. A trademark is uniquely associated with one source. For example, FRISBEE brand flying discs come only from one company. Most people may not know that this company is Wham-O, Inc. of Emeryville, California. However, they do know that FRISBEE brand comes only from one company. The trademark gives products or services immediate recognition of the reputation and quality associated with the source of products or services.
    In the United States, "common law" rights are recognized in trademarks that are used in commerce. Israel, too, is a "use" country. Registration is important, but not mandatory. In "civil law" countries, e.g., in continental Europe, trademark rights are established by registration.
    In "use" countries, a trademark is established by adoption and use. Adoption is the selection of a trademark. Use comprises marking the trademark on the goods or on containers or on labels attached to the goods, depending on the physical form of the goods, and moving the goods in commerce. Placing the brand name on a web page or in an advertisement is rarely considered to be use. Company names and domain names have a complex interrelationship with trademarks that cannot be addressed in a brief article. However, you should not depend on those items to establish use. The surest way to establish use is by traditional marking.
    Once the trademark is adopted, it should be marked with the "TM" symbol when it is placed on labels or in advertising. Placing "TM" next to the mark does not require any formal action, e.g., filing an application. It is a notice to the world that you are claiming rights in a common law trademark. It should virtually always be done.
    Be sure that the trademark acts as a brand name and not as a description of the goods. If a designation describes the goods, it is no longer identified with the source, and it loses its trademark significance. Aspirin, escalator, and thermos were once trademarks in the United States. Now they are dictionary words.
    Conflict of one trademark with another depends on whether there is a likelihood of confusion in the marketplace as to the source of goods or services. Therefore, trademarks of others may be relevant, even if they are not the same and even if the goods or services are not the same. A likelihood of confusion may exist where the goods and services are related.
    For example, a company making Vera brand scarves sued a company selling Vera brand cologne. The court noted that the makers of Halston cologne also made Halston scarves, and that both products were sold on the same floor of a department store. A likelihood of confusion was established since a customer could reasonably believe that Vera cologne would have the same source as Vera scarves. Therefore, the Vera cologne makers had to "cease and desist." In contrast, in an old but classic case, Cadillac division of General Motors sued the makers of Cadillac dog food. The court did not believe that people would think that dog food would come from a motor vehicle manufacturer.
    It is a good idea to research the rights of others before introducing a trademark into the marketplace. Having to change a trademark can be very expensive in terms of replacing products and advertising and also in terms of having to reestablish a new brand name. Getting the proper professional services will reduce the level of risk associated with a new trademark.
    Registration is often sought because registered trademarks provide stronger rights and are easier to enforce. A number of different forms of registration are available, each with different costs and benefits. Individual states provide state trademark registrations.
    The United States Patent and Trademark Office administers the well-known federal trademark registration denoted by the symbol. United States trademark owners may file international trademark registration applications based on their United States applications. We always recommend to discuss your trademark case with a competent trademark Attorney in your state.
  2. Bloggings: Immigration and diversity - some international comparisons, by Roger Algase, Esq.

    America is not the only English-speaking country that is wrestling with questions of immigration and diversity. UK Prime Minister David Cameron recently announced that multiculturalism in his country was "bankrupt". This not only delighted the British right wing, but put him in the uncomfortable position of being praised by none other than the daughter and political successor of Jean-Marie Le Pen, the notorious French far right nationalist, who has often been accused of anti-Semitism and bigotry toward all minorities.
    In 2004, a British journalist, David Goodhart, published an article in The Guardian called "Discomfort of Strangers", in which he made clear that certain types of "strangers", namely Asian, African and Muslim immigrants, made him feel quite uncomfortable indeed.  Not content with attacking immigrants in Britain, Goodhart's article also took some gratuitous shots at Hispanics and African-Americans in the US. This past week,  he repeated some of thse same sentiments (minus the comments about America) in the Financial Times ("A cap on immigrants will fit business nicely", March 28).
    Goodhart's basic premise is that there is a distinction between societies based on "solidarity", (which in the case of Britain means the white population) and "diversity", which, of course, means a society that includes everyone else. For various reasons, he argued that a society based on "solidarity" functions better.
    This type of anti-immigration rhetoric based on ethnicity, or as some like to call it euphemistically, "culture", is hardly unknown in the US.  In the 1990's, Peter Brimelow, another Briton, but one based in the US, wrote essentially the same thing in his book "Alien Nation".  In 2003, Samuel Huntington, better known for his book "Clash of Civilizations",  published an anti-immigrant polemic: "Who Are We"? That book argued that "We" are essentially white and Protestant, and emphatically not Hispanic. Former third party presidential candidate Patrick J. Buchanan has been writing something similar (except for being more friendly to white Catholics) for many years.
    When a country adopts this kind of xenophobic (and I am trying to be polite here) ideology as its official immigration policy, this is not without its consequences. Recently, the UK has reduced its cap on permanent immigration and has also adopted procedures for immigrant  visa applications that have discouraged many non-Europeans, including both skilled professional workers and affluent visitors, from China and other countries, from coming to or trying to remain in the UK.
    This has brought a furious backlash from some of the people which any country in its collective right mind would regard as among its most desirable immigrants. For example, a young Chinese chemical engineer who studied in the UK,  has been working there (with authorization) and has paid substantial amounts in UK taxes, posted a furious comment on the Financial Times website claiming that her fellow Chinese professional workers were being treated like "pigs" by the British immigration authorities. One can only imagine what the effect will be on attitudes toward British businesses, products and individuals seeking to develop trade or contacts with the next generation of educated and influential leaders in China.
    In contrast, Canada has now gained such a reputation for acceptance of diversity, that, according to another Financial Times article, politicians in all political parties are campaigning heavily in ethnic neighborhoods ("Canada's parties target big ethnic vote", April 1).  The article also points out that attitudes toward immigration have hardened south of the border.
    The choice ahead for America is clear. Will we, in violation of all of America's ideals and traditions, move in the direction of Britain and become a country heading toward narrowness, exclusion and isolation, or will we follow the example of Canada and reach out to the diverse world around us with the spirit of welcome and acceptance for the most qualified immigrants, wherever they may come from?
    There is no doubt about which direction the Obama administration is taking us in now. We need to change course if we wish to recover not only what is best in America, but is in our best interests in the globalized world of the 21st Century.
     
     
     
  3. Options for Canadians to apply for the TN Visa at the Mexican Border Crossing


    As many of our readers know, Chapter 16 of NAFTA (Temporary Entry of Business Persons) provides for the simplified and expeditious temporary entry of businesspersons who are citizens of one country to go into the territory of another. It contains the reciprocal commitments of the United States, Mexico, and Canada to facilitate the temporary entry of businesspersons from one of the three countries. It grants temporary entry to four categories of businesspersons: (1) business visitors (admitted as B-1s); (2) traders and investors (admitted as E-1s and E-2s); (3) intracompany transferees (admitted as L-1s); and (4) professionals (admitted as TNs).
    It is important to note that although businesspersons who are citizens of Mexico are entitled to the benefits of NAFTA, they do not have the ease of access to the United States as do citizens of Canada. Canadians can apply for the TN work visa directly at the port of entry from Canada to the USA. Many Canadians are not aware that they can apply for the TN visa on at any Mexican-American port of entry as well.
    So how does it work, key requirements?
    Canadian Citizenship
    Present evidence of Canadian citizenship: birth certificate or passport. Even an expired passport is sufficient to establish citizenship, but an admission stamp will not be placed in an expired passport. Note that Canadian citizens are visa-exempt (with the exception of E-l/E-2) and are likewise passport-exempt for the time being.
    The Applicant Must Not Be Otherwise Inadmissible
    It is essential to ascertain in advance that you are not subject to any grounds of inadmissibility. It should be emphasized that Canadian pardons do not relieve Canadians of the U.S. immigration consequences of Canadian criminal convictions. Advance prep work regarding any prior criminal history is imperative to avoid embarrassment at the time of application and to allow time to submit a nonimmigrant waiver application (Form I-192) when required.
    Past arrest and criminal court records are much more accessible these days. We have encountered many Canadian professionals who have been left stunned at the border after being questioned about a conviction that may have occurred more than 20 years ago and has never come up in the applications process before. In addition to any criminal issues, it is also imperative to determine whether you have previously violated U.S. immigration laws. For example, unlawful presence or past fraudulent behavior may trigger a bar to admissibility.
    The Correct Filing Fee
    The fee for a Trade NAFTA (TN) visa at the POE is $50, There is no formal filing fee for dependents, but there is a $6 fee for each I-94 issued at a POE/PFI.
    Who Will Adjudicate your at the Border?
    At one time, POE/PFIs had designated free trade officers (FTOs) to exclusively adjudicate free trade applications. However, since 1999, immigration inspectors have had the authority to adjudicate applications.
    It is key, especially in complicated cases, to check in advance with the FTO or the most experienced inspector to find out his or her schedule. FTOs are generally more knowledgeable about category requirements and the acceptable evidence for each category than a non-specialist inspector. Your lawyer can sometimes call the POE/PFI in advance for this information. Many immigration inspectors will speak to your lawyer over the phone to provide helpful information that applies to your case. While the inspectors will never provide advance adjudication, it never hurts to check with them to help identify issues that may raise concerns or problems before presenting the application.
    Example from the San Ysidro port of Entry, Tijuana Border Crossing
    Take Highway 5 South to San Ysidro. San Ysidro is a community in the city of San Diego, California. It is located in the southernmost part of San Diego County, California, immediately north of the Border Crossing. Make sure you exit the Freeway at the last U.S.A. stop!!! Then make a left turn, and then a right turn to find parking.
    It is best to park near the Trolley Stop, at the parking lot just North of the "Jack In the Box". Next, Walk across the Border. Once you arrive on the mexican side in Mexico, near the taxis, you need to go across the bridge to your left. Get in line to cross back through the gates, which is the U.S. side.
    You must show your Canadian passport and other I.D. (like H1b) to cross back to the U.S.side. Once inside go to the building on the right which is for Permits. You need to wait in line there before being allowed to enter the building. Once inside the building you need to check in at the counter with the immigration officer. Then you will be asked to wait, until they have time to review the TN documents. Next they will go over the paper work with you.
    Once your TN is approved, you will go to the cashier window, pay $50 for the TN and $6 for the I-94. Keep your receipt!
    After departing the permit building, get into the line on your right heading back into the U.S. Once, you get to the front of the line, you will be asked by an immigration officer to show your entry documents (passport and TN), and your receipt that you paid.
    Lastly, proceed to the outside (any bags, or backpacks, purses, need to go through the x-ray machine). After, you are outside, proceed to your car, and take highway 5 north."
    Do you need an attorney with you?
    Attorney presence at the port of entry with you is very important. No attorney at application process can lead to dire consequences, especially when a less experienced officer is involved. The attorney can find out when the FTO or most experienced officers are on duty and, if there is a denial assist in the withdrawal or refiling process promptly. We have established a very successful interview escort process for our clients and feel that this service has become a important factor in case approval for Canadians applying at the Mexican Border. Email me for further info.
  4. Hospitality Immigration - Birth Tourism, is it really happening?


    Birth Tourism is a hot topic right now. How do I know? Reporters keep calling me as well as other prominent Immigration Lawyers, asking about this topic with great interest.
    The latest story was covered by the daily. The Daily is new type of media exclusively created for the ipad and provides cutting edge news with amazing content delivery. You have to try it to appreciate.
    The latest story that I was part of is about Mothers coming to America to give birth. Millions of foreign tourists visit the United States every year, and a growing number return home with a brand new U.S. citizen in tow.

    Every year millions of foreign tourists visit the United States, and a growing number return home, after having given birth to a new baby. Eight percent of all babies born in the U.S. in 2008 were to illegal immigrant parents, according to a groundbreaking analysis of U.S. Census Bureau data by the Pew Hispanic Center. All of those children are U.S. citizens while their parents remain undocumented.
    Thousands of legal immigrants, who do not permanently reside in the United States but give birth here, have given their children the gift of citizenship, which the U.S. grants to anyone born on its soil.
    The number of U.S. births to non-resident mothers rose 53 percent between 2000 and 2010, according to the most recent data from the National Center for Health Statistics. Total births rose 5 percent in the same period. Among the foreigners who have given birth here, including international travelers passing through and foreign students studying at U.S. universities, are "birth tourists," women who travel to the United States with the explicit purpose of obtaining citizenship for their child.
    Catering to the women is a nascent industry of travel agencies and hotel chains seeking to profit from the business.
    Is this just a trend or a growing reality, share your thoughts with us.
    Read our commentary at the daily.com
  5. Your best friend calls you and tells you he/she's really sick? How do you show you care?



    A former client of mine returned to Japan a couple of years ago after having spent a relatively brief time in immigration detention in the US. The person began a new life by getting married in Japan, and the couple started a successful business. Everything seemed to be going well.



    The only problem was that the city where they had chosen to live happened to be located near the center of the March 11 earthquake. The city was not seriously damaged by the tsunami, but there was widespread devastation from the quake.



    Fortunately, the person was able to contact me by email soon after the quake. It turned out that the couple were unhurt and there was only minor damage to their home, but there was widespread death and destruction all around them, with little or no food, water or electricity.



    The only experience worse than the earthquake, the former client also mentioned, was the experience of having been in immigration detention.


    TypePad Conversations » Answer this question!
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: