Broker verbal trademark
Must a firm create an order ticket record when a customer purchases mutual funds or variable annuities? The amended rule states that a memorandum does not need to be made regarding a purchase, sale or redemption of a security on a "subscription-way basis" directly from or to the issuer such as mutual funds or variable annuities , if the member, broker or dealer maintains a copy of the subscription agreement regarding a purchase, or a copy of any other document required by the issuer regarding a sale or redemption, instead of making a separate record as to transactions.
These documents generally include information that is important for, and specific to, a particular type of transaction. When an associated person responsible for the account is identified on the order ticket, must the associated person be identified by name?
If a firm chooses this option, it must, if requested by a representative of a securities regulatory authority, provide the actual identity of the person who entered the order. This requirement may be satisfied by a companion record to the order ticket. What records must a firm maintain concerning its associated persons?
Rule 17a-3 a 12 requires a firm to make records concerning its associated persons, including information regarding their employment and disciplinary histories. The amendment to a 12 , requires that firms create a record listing all of their associated persons that shows, for each associated person, every office where the associated person regularly conducts a securities business, and listing all internal identification numbers or codes and the CRD number assigned to each associated person.
The current or pre-amendment Rule 17a-3 a 12 ii , defined "associated person" for purposes of a 12 as: The new definition is much broader. It has been modified to incorporate the definitions set forth in Exchange Act Sections 3 a 18 and 3 a The required information includes: The Adopting Release notes that several commenters suggested that unauthorized access to such information could facilitate the perpetration of fraud against the customer.
What kind of information must be maintained if an account has more than one owner? If an account has more than one owner, the record must include personal information for each owner of the account who is a natural person. However, as the Adopting Release explains, it is acceptable for firms to combine joint owners' financial information rather than obtaining and maintaining such information separately for each owner.
The Adopting Release also notes that the record should reflect the investment objectives for the account and not the individual investment objectives for each joint owner named on the account. What information must a firm obtain from a customer with a discretionary account?
In addition to the aforementioned required information listed in Question 9 , for discretionary accounts, firms must obtain the dated signature of each customer granting the discretionary authority and the dated signature of each natural person to whom discretionary authority was granted.
What other information must be contained in the customer account records? The account record must indicate whether it has been signed by the associated person responsible for the account, if any, and approved or accepted by a principal of the firm. In the Adopting Release, the SEC recognized that firms do not always assign an associated person to each account.
Accordingly, the SEC added the phrase "if any" to the requirement that the account record state whether it had been signed by an associated person. Even if no associated person is assigned to an account, the account record must indicate whether a principal has approved it.
Does the amended rule require firms to furnish customers with account record information? The rule also requires that the firm include with the account record or alternate document an explanation of any terms regarding investment objectives.
The following events require the firm to provide the account record information to the customer:. Is a firm required to make a separate mailing when providing customers with the account record information? The new rule does not require a separate mailing. In its Adopting Release, the Commission notes that this mailing may be combined with other mailings.
In addition, a firm may mail the customer a copy of the customer's complete account record reflecting any change of other account record information on or before the 30th day after the date the firm received notice of any change. The firm may also choose to send this notification with the next statement scheduled to be mailed to the customer.
Is there an exemption from the account record information requirements? The Adopting Release notes that many firms argued for an exemption contending that the rule was intended to allow examiners to review for suitability, but that firms are not subject to SRO suitability requirements for all of their accounts.
The SEC decided to create an exemption for certain accounts. The rule states that the account record and furnishing requirements of Rule 17a-3 a 17 will only apply to accounts for which a firm is, or has within the past 36 months been, required to make a suitability determination under the federal securities laws or under the requirements of a self-regulatory organization of which it is a member.
The Adopting Release emphasizes, however, that the obligation to collect and record suitability information may arise under SRO rules and interpretations. If, after the account is opened, the firm or its associated persons engage in conduct that would subject the firm to suitability requirements, the firm must obtain the information before making such a recommendation.
The firm would also have to comply thereafter with the requirement to furnish customers with a copy of their account records for verification, under the Rule, but the account could re-qualify for the exemption if suitability determinations were no longer required of the firm. Firms should look at FINRA Rule and NASD b 16 B , which deal with, respectively, making recommendations to customers and member's suitability obligations, and with diligence in opening customer accounts for options trading, where due diligence must be exercised in ascertaining essential facts about a customer, his or her financial status and investment objectives.
In addition, it is important to note that the term "suitability determination" in this context should be interpreted broadly. A firm may have an obligation to perform a suitability determination under the Exchange Act like in Sections 10 b and 15 c , Commission Rules such as Rules 10b-5 and 15c, 15gg-9 , SRO Rules or common law. Must firms create account records under Rule 17a-3 a 17 for all accounts? Rule 17a-3 a 17 requires firms to create an account record for both new and existing accounts.
For accounts opened on or after May 2, , the firm must obtain the account record information required under Rule 17a-3 a 17 i A when the account is opened.
For accounts existing before May 2, , firms will have 36 months to obtain the required information for the account record. A new month furnishing cycle under Rule 17a-3 a 17 will begin when the firm obtains the account record information within the initial month grace period. Must firms provide customers with copies of written agreements? This will enable customers to review the terms of agreements to which they are subject, and to better understand their rights and responsibilities under these agreements.
Firms should also be aware, however, that this provision is limited to the a 17 account record requirement and does not apply to any other federal or SRO rules requiring the collection of information. Must a firm create a record of customer complaints it receives concerning associated persons? New Rule 17a-3 a 18 i requires firms to make a record of every written customer complaint they receive about an associated person. This requirement extends to complaints received electronically from customers.
The record must include the following information:. Because firms are already required to keep originals of incoming written complaints, firms have the option to comply with this rule by keeping the original complaint along with a record of the disposition of the complaint, if kept by name of the associated person. What kind of record is a firm required to create regarding notification to customers of where to file complaints?
Under 17a-3 a 18 ii , firms are required to make a record indicating that each customer has been provided with a notice of the address and telephone number of the department of the firm to which complaints may be directed. Must firms maintain records regarding an associated person's compensation?
If you use the below techniques for picking names, it will also reduce the likelihood you will unintentionally pick a name too similar to another name already in use. Conduct search engine searches, look in public source code repositories, and check domain names to see whether others are using the same letter string.
The whohas tool will give you results for exact matches. Many countries provide public access to searchable trademark databases. Without training in trademark law you won't be able to say whether your name is available, but you can "knock out" names that are definitely not available.
After choosing a name it may not make sense for you to hire someone to do a formal trademark clearance. However, if approached by someone who claims you are infringing their trademark, be prepared to change your name. Below are a handful of techniques you may find useful for creating a unique name for your project. Trademark rights are territorial, with over national trademark registries and a few multi-jurisdictional systems, like the pan-European Union system called the Community Trademark.
There are several different databases and techniques for "clearance," which refers to determining whether a name can be used with a low likelihood of infringing the trademark rights of others.
Because trademark infringement involves so many ambiguities no clearance can provide certainty, so instead the goal is to reduce the risk of infringement to a tolerable level. A trademark lawyer can do a clearance for you. At some point it would be difficult to change the name throughout your entire project if you receive a complaint from someone claiming you are infringing.
With a growing user and contributor base, it makes sense to have more assurance you can use your name into the foreseeable future. This is probably the time to consider a more formal legal clearance process for your name.
You also should consider whether it is the right time for registration of your trademark to formally establish and document your trademark rights. Before you apply to register your trademark, the first and most important question to answer is who will own it.
Ownership of copyright in the code and ownership of trademark rights in the name and logo won't necessarily be the same. Unlike copyright in the code, community members are not co-owners of the trademark rights in the name or logo; rather, the trademark rights will be owned by a person or entity capable of owning property. Only the owner of the name may file for registration, so this question must be answered before applying.
There is further complexity if you have a logo. In that case, the person who designed the logo may own the copyright rights in the logo but not the trademark rights. Here, to avoid problems that might arise, the owner of the copyright in the logo should assign the copyright to the owner of the trademark rights.
Starting with the assumption that a member of the project creates the trademark, one can find the following approaches: The person who created the name remains the owner of the trademark Linus Torvalds, for instance or transfers the rights to another the QGIS project for instance ; A group of people, acting as partners or an unincorporated association, owns the trademark; The person who created the name transfers rights to to the community, embodied by an umbrella organization, society or non-profit corporation; The person who created the name does not bother with this issue—as it was and is the case in the Arduino project , but the consequences of such an approach are probably not going to turn out well.
If you transfer your rights to another person or entity, you will need to meet the legal conditions for the form of transfer in the respective jurisdiction—a written document is always best. Trademark registration and renewal fees are not cheap, so if you use an umbrella organization, society or non-profit you will have to decide who will cover the costs.
Why it is best to outline an approach in this area? Because potential clashes, like Hudson and Jenkins , might be avoided. The owner of a trademark can revoke the right of the project to use the trademark if the project no longer represents what the owner intended the project to be, as happened to the Jenkins project.
Trademarks are referred to as "unregistered" and "registered. A trademark can also be registered, which is done jurisdiction by jurisdiction.
Most trademark registrations are for a specific country, although a few registration schemes cover multiple countries. The Community Trademark, which is a single trademark registration for all of the EU, is the most well-known and useful example. Registration is a formal procedure in which the government grants you rights or officially recognizes your rights in the trademark.
This does not mean that without registration you have no rights in your trademark; however, rights in unregistered trademarks are more difficult—and in some countries impossible—to enforce than a registered trademark. You may also register at any time, before or after using your trademark with your project. However, the symbol is accurate only for the country of registration.
If you decide to move forward with registering your trademark, it may be more practical and efficient to engage a knowledgeable attorney to assist you with registration, even if it is possible in some countries to file without one. The process, even with instructions, can be complicated, especially if you seek protection in several jurisdictions.
There are common requirements for registering your mark. The trademark office will need a copy of the trademark, whether a word, logo or both, along with the identification of what goods and services the trademark identifies.
Whether to register or not is sometimes a difficult question, but it will save time and costs when combating infringement. It will also help to prove ownership , which can be ambiguous in the collaborative world of free and open source software.
The Python trademark dispute is a good example, where the absence of registration by the Python project almost allowed a company to register this important trademark, which would have been detrimental to the project. Finally, after the trademark is registered, the owner must to pay renewal fees, generally every ten years, and the trademark must be used.
If the trademark isn't used by the owner for an extended period usually over three to five years—depending on the jurisdiction , it is treated as abandoned or may be revoked. Your project has grown beyond a small circle of users and contributors, and companies have found your project and are using it as part of their own products or internal operations. They may be approaching you about providing support or additional features, or want to contribute resources.
You are devoting significant time to the project, and maybe you even quit your job to work on the project full time. It is probably time for a formal legal entity.
Likely there is an umbrella organization like the Linux Foundation , the Apache Foundation or The Software Freedom Conservancy that can provide a more formalized administrative structure for your project.
They may take over ownership and registration of the trademark for your project's benefit. Whether you join an existing umbrella organization or start a new legal entity, it is time to complete legal clearance and registration if you have not already done so. You may have business partners that demand registration, so they will have assurances they won't infringe anyone else's rights as they extend the geographic footprint of the project.
Also understand what enforcement strategy you will have and post a trademark policy, explaining to your users and the community how they may use the trademarks. You can find great guidance on modeltrademarkguidelines. Browsing through those will show you the key aspects you want to include in your own Trademark Policy.
When you write your policy, always remember most people reading your policy won't be trademark experts. So keep the language simple, and use lots of practical examples. This is what we are trying to do in this guide, too, and we hope it works for you.
If not, please tell us what we can improve. You may enter into business relationships for hosting or sponsoring conferences, or that provide training in the software. You may have companies that want to provide professional services relating to the software, like installation, support and customization. These relationships should all be licensed, with an agreement that covers elements such as the deliverables, standards for the partner's performance, payment terms, and termination.
Because of the complexity of these relationships, have legal advice before entering into them. Despite the openness of your software, you will still want to protect the name of your project, and the names of your individual software programs.
You don't want others to claim their software is the official software or that they offer official services when they aren't associated with you. In the worst case scenario, if a bad actor takes your software, designs malware around it and distributes it under the same name, users will blame you for the infection of their computers and this isn't at all hypothetical.
You first must be clear about what you can legally do. Second, you need to determine what you want to do, how you want to use your resources and how forceful your enforcement should be.
Under trademark law, you can prohibit anyone from using your trademarks for products and services that are not your own where such use is likely to create confusion about the true commercial origin of those products and services. This confusion can arise if those products or services are similar enough to your own project and software and use a name identical with, or similar to, your name, or that suggest a relationship with your software that doesn't exist. If that happens, there is a legal risk that users might erroneously believe that the third party product or service is yours or associated with you.
As a general rule, you are legally entitled to object to confusing use of your trademark. Conversely, there are some forms of use that you cannot stop, because they are not considered confusing in the legal sense. Given you are a free software project, you probably will be more permissive with your trademarks than other right owners. Typically, you will want to encourage free and open dissemination of your original software under its name. So, even though sometimes you may have the legal right to stop others from making copies of your software and distributing them, in a commercial setting you will probably not want to stop that use.
There may also be a point where enforcement of trademark rights will be a breach of the FOSS license, but we do not know where that line might be. Projects don't always agree about the extent to which they want others to use the project's trademark. Because opinions differ, a trademark policy will help others respect the choices you have made.
If you have identified an activity that might infringe your rights, you will want to seek legal advice. Speak to a trademark law expert and discuss your options. If you are a lawyer who would like to be listed here, contact us. She counsels creative communities on open source, brand, marketing and copyright matters. Prior to returning to private practice, she held in-house positions at footwear, apparel, and high technology companies and was an adjunct law professor teaching a course on trademark law and unfair competition.
She is a frequent author of scholarly articles, and her blog, Property, Intangible, analyzes current intellectual property case law. His second specialization is shipping law, where he deals also with IT systems onboard. Rafal studied law in Poland and Germany, where he did his LL. Anthonia protects her clients' brands and products against all forms of online and offline misuse and advises on all aspects of trademark law and unfair competition. Her client base spans software and online services, consumer electronics and entertainment, and beauty care and healthcare.
A focus of Anthonia's work is on the integrated online enforcement of her client's IP rights, and she works with colleagues in many jurisdictions daily. Anthonia regularly publishes on current trademark, online and unfair competition topics.
In her articles, she recently explored the legal implications of adblocking and effective protection against online scams. She is a member of the Marques "Class 46" team of trademark lawyers and writes for her firm's LimeGreen IP knowledge site and for external legal publications.
Anthonia studied law with a strong international focus. Based in Raleigh, North Carolina, USA, Weston has always been passionate about all things at the intersection of technology and policy. After receiving his business degree at Tulane University, Weston obtained his J. Since graduating, Weston has worked for two open source software companies. Weston enjoys soccer, skiing, mountain biking, fly-fishing, the occasional video game, and teaching himself to code.