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      Thought Leadership

      Devil’s Kiss: Burying brands under the garb of Bargain
      Satyaki Legal

      The problem isn’t the abuse of power, it’s the power to abuse- Mike Cloud 

      Introduction: Placing the Bet over Brand. 

      In the cutthroat competition prevailing in the business world, the concept of David versus Goliath isn't confined to ancient tales; it often plays out in modern boardrooms and courtrooms. The acquisition of a smaller firm by the comparatively larger one is not uncommon, however, most recently we have also come across one of the most insidious practices within this realm. That is acquiring or appropriating smaller firms' trademarks by corporate behemoths. This manoeuvre not only stifles competition but also undermines the very essence of entrepreneurship and innovation.

      Consider this scenario: a budding startup creates a unique product or service, building its brand and reputation from scratch. Then, seemingly out of nowhere, a larger corporation swoops in, and either places an offer to the smaller firm, for buying the brand outright or engages in legal battles to wrest control of its trademark.[1] This predatory tactic has far-reaching implications, not only for the affected companies but also for consumers and the market at large.

      What is Trademark Law?[2]: Exercising Exclusivity.

      Trademark law, universally recognized, safeguards distinctive signs such as symbols, words, or logos that distinguish the origin of goods or services in commerce. The registration process typically involves application submission, examination for compliance with legal standards and provisions, publication for opposition, and eventual registration. Upon registration, trademark owners gain exclusive rights to use the mark in connection with specified goods or services, enabling them to prevent others from using similar marks that could confuse consumers. Grounds for refusal of registration include lack of distinctiveness, descriptiveness, or similarity to existing trademarks. Enforcement mechanisms encompass civil litigation for infringement, seeking remedies like injunctions and damages, alongside criminal penalties for counterfeiting. International treaties like the Paris Convention and TRIPS facilitate harmonisation and reciprocal protection among signatory countries, ensuring the integrity of trademarks and promoting fair competition in global markets.

      The Motives Behind the Machinations[3]

      So while the so- called big brands have a brand portfolio of their own, the question arises, “why do large firms engage in the dubious practice of acquiring other’s trademarks?” 

      One primary motivation is to eliminate competition and consolidate market control. By acquiring smaller firms' trademarks, larger companies can suppress potential rivals and expand their market share without the inconvenience of genuine innovation or competition.

      Moreover, dragging small firms into protracted legal battles over trademark disputes serves as a strategic deterrent against challengers. The mere threat of litigation can intimidate smaller businesses into capitulation, sparing larger companies the expense and effort of genuine competition.

      Illustrations: All for One!?! 

      1. Instagram vs. Littergram[4]: In 2016, a UK-based startup called Littergram, which aimed to encourage users to share photos of littered areas to promote environmental awareness, faced legal action from Instagram. Instagram claimed that Littergram's name infringed upon its trademark. Despite Littergram's argument that it operated in a different sector and had a distinct brand identity, it ultimately changed its name to "TrashTag" to avoid further legal battles.

      2. Monster Energy vs. Thunder Beast[5]: In 2017, a small brewery in Vermont named Rock Art Brewery faced a trademark dispute with Monster Energy over its beer named "Vermonster." Monster Energy claimed that the name was too similar to its brand and could cause confusion among consumers. Despite Rock Art Brewery's argument that "Vermonster" had been in use for years and was associated with its beer, it ultimately settled the dispute by agreeing to limit the distribution of its beer outside of Vermont.

      3. Red Bull vs. Bullseye BBQ Sauce: Bullseye BBQ Sauce, a small Australian company, faced a legal battle with Red Bull over its logo, which featured a charging bull. Red Bull argued that the logo infringed upon its trademark, which also featured a charging bull. Despite Bullseye BBQ Sauce's argument that it operated in a different industry and had been using its logo for years without issue, it ultimately changed its logo to avoid further legal action from Red Bull.

      4. Disney vs. Deadmau5[6]: In 2014, electronic music artist Deadmau5 (Joel Zimmerman) faced a trademark dispute with entertainment giant Disney over his iconic mouse-shaped headgear. Disney, which owns the trademark for Mickey Mouse, opposed Deadmau5's trademark application for his logo, arguing that it resembled Mickey Mouse and could cause confusion among consumers. Despite Deadmau5's argument that his logo was a distinct part of his brand identity and had been in use for years, he ultimately withdrew his trademark application to avoid a prolonged legal battle with Disney.

      5. Tesla vs. Tesla Motors Club: In 2020, Tesla, the electric car manufacturer, sent a cease-and-desist letter to Tesla Motors Club, an online community for Tesla enthusiasts, demanding that they stop using the name "Tesla" and hand over their domain name. Despite Tesla Motors Club's argument that they were not engaged in commercial activities and were simply providing a platform for Tesla owners to connect and share information, they ultimately acquiesced to Tesla's demands to avoid costly legal proceedings.

      6. Deckers Outdoor Corporation vs. Australian Ugg Manufacturers[7]: The trademark dispute surrounding the term "ugg'' has been a long-standing battle between Deckers Outdoor Corporation, the parent company of UGG Australia, and Australian Ugg boot manufacturers. Despite "ugg'' being a generic term in Australia to describe sheepskin boots, Deckers successfully trademarked the term in the United States and other countries. This led to legal battles with Australian manufacturers who had been producing Ugg boots for decades before Deckers' trademark registration. Many Australian manufacturers faced cease-and-desist letters and lawsuits from Deckers, challenging their right to use the term "ugg." Despite arguments that "ugg" was a generic term in Australia and had been used for decades by local manufacturers, Deckers prevailed in the courts, solidifying its control over the UGG trademark and impacting the traditional Australian ugg boot industry. This case highlights the power dynamics in trademark disputes and the challenges faced by small businesses against well-funded corporations in protecting their brand identities.

      7. Budweiser vs. Budweiser Budvar[8]: An ongoing trademark dispute between Anheuser-Busch InBev (AB InBev) and Czech brewery Budweiser Budvar has spanned over a century. Both companies claim rights to the "Budweiser" name, with AB InBev arguing that it has exclusive rights to the name in most countries, while Budweiser Budvar asserts its historical claim to the name based on its origins in the Czech city of České Budějovice (German: Budweis). The legal battle has involved multiple lawsuits and international arbitration proceedings, highlighting the complexities of trademark disputes in the global marketplace.

      These examples further illustrate how larger companies often wield their trademark rights aggressively to protect their brands and assert dominance over smaller entities, sometimes at the expense of legitimate businesses with their own established identities and goodwill.

      Seeking Protection: The Strategy of “Protect to Promote.”

      Most often, it’s the popularity of the innovation/business models and not the mere existence of the smaller firms that pose a potential threat to the larger firms- as they are already into the practice of outrageously protecting, promoting their brands and preventing others from subsisting even if there is a minutest similarity between them and the others.  

      Despite the formidable challenges presented by predatory practices, small firms can deploy a range of strategies to safeguard themselves. One pivotal step involves securing robust legal protection through trademark registration early in the company's trajectory. This ensures official recognition and legal safeguards for their brand assets, making it harder for larger entities to appropriate or exploit their trademarks.

      Additionally, building a resilient online presence and cultivating a devoted customer base can prove invaluable in defending against trademark disputes[9]. A strong digital footprint not only enhances brand visibility and recognition but also establishes a loyal following that can rally behind the small firm in times of contention. Engaging with customers through social media, personalised interactions, and community events fosters a sense of loyalty and solidarity, which can sway public opinion and legal outcomes in favour of the smaller entity.

      Furthermore, forging strategic partnerships and alliances within the industry empowers small firms to amplify their voices and collectively advocate for fair competition and regulatory protections[10]. By collaborating with like-minded businesses and industry associations, smaller players can pool resources, share knowledge, and exert collective pressure on larger competitors and regulatory bodies to uphold ethical standards and prevent exploitation.

      Moreover, investing in proactive trademark monitoring and enforcement mechanisms can help small firms detect and address potential infringements early on, minimising the risk of losing control over their brand identity. Regularly monitoring trademark databases, online marketplaces, and industry publications allows small businesses to identify unauthorised use of their trademarks and take timely legal action to protect their rights.[11]

      Additionally, seeking legal counsel from experienced intellectual property attorneys can provide small firms with expert guidance and representation in navigating trademark disputes and enforcing their rights.[12] Legal professionals can offer valuable insights into trademark law, assist in drafting robust licensing agreements, and represent small firms in negotiations and litigation, bolstering their defences against larger adversaries.

      Finally, maintaining meticulous records of branding activities, including logo designs, marketing materials, and product packaging, can serve as crucial evidence in trademark disputes.[13] Comprehensive documentation strengthens the small firm's case in proving ownership and distinctiveness of their trademarks, making it harder for larger entities to challenge their rights.

      In essence, a multifaceted approach encompassing proactive trademark registration, strategic branding, community engagement, legal advocacy, and diligent monitoring is key to protecting small firms against the predatory tactics of larger competitors. By fortifying their defences and leveraging collective strength, small businesses can assert their rights, preserve their brand integrity, and thrive in the face of adversity.

      Conclusion: Prevention is better than Cure. 

      The Devil’s Kiss, characterised by the appropriation of smaller firms' trademarks by larger corporations, poses a significant threat to the integrity of entrepreneurship and innovation. However, small firms are not defenceless against such predatory practices. By proactively registering trademarks, cultivating strong customer relationships, forming strategic alliances, and investing in legal counsel and enforcement mechanisms, small businesses can fortify their defences and assert their rights in the marketplace. Through collective action and resilience, small firms can navigate trademark disputes, preserve their brand identities, and emerge victorious in the face of corporate hegemony. Ultimately, the battle against the Devil’s Kiss is a testament to the resilience and ingenuity of small businesses in preserving the spirit of entrepreneurship and fair competition.













      [12] Ibid.


      Seeking Inspiration from the Internet: Understanding Digital Piracy, and its Complications
      Satyaki Legal

      “Good artists copy, great artists steal.”- Pablo Picasso

      Diving into the world of Free Information: An introduction. 

      In today's digital age, where information flows freely and access to content is just a click away, digital piracy has emerged as a significant challenge for content creators, distributors, and consumers. The unauthorised distribution and reproduction of digital content poses complex ethical, legal, and economic issues. From movies and music to software and ebooks, no sector is immune from the impact of piracy. This article delves into digital piracy's complications, explores real-world examples, and discusses strategies to mitigate its effects.

      Click to Copy: What is Digital Piracy?

      Digital piracy refers to the unauthorised copying, distribution, or use of digital content such as movies, music, software, games, and e-books. It encompasses a range of activities, including (but not limited to) downloading or streaming copyrighted material without permission, sharing files through peer-to-peer networks, and selling counterfeit goods online[1]. While the Internet has democratised access to information and entertainment, it has also facilitated the proliferation of piracy through file-sharing websites, torrent platforms, and streaming services.

      Diving into Digital Piracy: Assessing the Impact of Digital Piracy. 

      Digital piracy manifests differently in various regions, reflecting a complex interplay of socioeconomic factors, technological infrastructure, and cultural attitudes. In emerging markets, where access to affordable content may be limited, piracy often democratises access to culture and knowledge. However, rampant piracy can also undermine efforts to foster innovation and economic growth, stifling investment in creative industries and eroding confidence in intellectual property rights. In contrast, developed economies grapple with more sophisticated enforcement mechanisms and greater awareness of copyright laws. Yet, piracy persists, driven by factors such as convenience, price sensitivity, and shifting consumer preferences[2]. Understanding these regional nuances is essential in devising tailored anti-piracy strategies that balance the need for access with the protection of intellectual property rights.

      At the heart of the piracy dilemma lies the enigmatic realm of consumer behaviour. What drives individuals to engage in piracy, and how do these motivations vary across different demographics and cultural contexts? Perceived value, convenience, social norms, and demographic trends all influence piracy rates and patterns. In some cases, consumers may resort to piracy due to affordability constraints or dissatisfaction with existing distribution channels. Others may view piracy as a form of protest against restrictive copyright laws or as a means of accessing content unavailable through legitimate channels. By gaining insights into these underlying dynamics, policymakers, content creators, and distributors can develop strategies to incentivize legal consumption while addressing the root causes of piracy in our digital society.

      While digital piracy often dominates headlines with tales of blockbuster films and chart-topping hits, its effects on small-scale creators are equally significant. Independent artists, musicians, writers, and developers face unique challenges in protecting their work from piracy and securing fair compensation for their efforts. Piracy not only deprives creators of revenue but also undermines their ability to sustain their livelihoods and invest in future projects. Grassroots movements and advocacy groups play a vital role in supporting these unsung heroes, championing their cause, and advocating for policies that safeguard their rights in the digital marketplace[3]. By fostering a culture of respect for intellectual property and supporting initiatives that empower small-scale creators, we can create a more equitable and sustainable ecosystem for creativity and innovation.

      The impact of digital piracy on the world is multifaceted, encompassing economic, social, and cultural dimensions. By understanding regional variations, unravelling the complexities of consumer behaviour, and supporting small-scale creators, we can navigate the choppy waters of digital piracy with integrity and empathy, striking a balance between access and protection in the digital age.

      Challenges of  Digital Piracy

      Digital piracy poses several challenges to its stakeholders, which are  as follows::

      1.Loss of Revenue: Content creators and distributors lose significant revenue due to pirated copies of their work being circulated freely[4]. This loss undermines their ability to invest in future projects and stifles innovation in the creative industries.

      2.Copyright Infringement: Piracy violates the intellectual property rights of content creators, depriving them of recognition and compensation for their work. Copyright infringement not only undermines the incentive to create but also undermines the integrity of the creative process[5].

      3.Quality Control: Pirated copies of digital content often lack quality control measures, resulting in inferior versions that may contain malware, viruses, or other security threats. Consumers who unwittingly download pirated material put themselves at risk of cyberattacks and identity theft[6].

      4.Erosion of Trust: Piracy undermines the trust between content creators and consumers, leading to a culture of entitlement where individuals expect access to content without paying for it. This erosion of trust can have far-reaching implications for the sustainability of creative industries and the broader economy.

      Examples of Digital Piracy

      Several high-profile cases illustrate the prevalence and impact of digital piracy:

      1. Movie Piracy: The unauthorised distribution of movies through torrent sites and streaming platforms has plagued the film industry for years. Blockbuster films are often leaked online before their official release, resulting in millions of dollars in lost revenue for studios and production companies[7].

      2. Music Piracy: Illegal downloading and sharing of music files have decimated the profits of musicians and record labels. Despite efforts to combat piracy through digital rights management (DRM) and streaming services, piracy remains a pervasive problem in the music industry.

      3. Software Piracy: Counterfeit software copies are widely available online, posing serious security risks for businesses and individuals. Pirated software often lacks critical updates and support, making users vulnerable to cyber threats and system vulnerabilities.

      4.  E-book Piracy: The proliferation of e-readers and digital libraries has led to a surge in e-book piracy[8]. Authors and publishers struggle to protect their works from unauthorised distribution, leading to lost sales and diminished returns on their investments.

      Rapid like wind and Compact like Forest: Strategies to Combat Digital Piracy.

      While eradicating piracy may be unrealistic, there are several strategies that content creators and consumers can employ to mitigate its effects:

      1. Collaborative Initiatives: In the fight against digital piracy, collaboration is key. Industry stakeholders, government agencies, and law enforcement bodies must join forces to disrupt piracy networks, prosecute key players, and recover stolen intellectual property[9]. Success stories abound, from the shutdown of major piracy operations to the prosecution of notorious pirates. By pooling resources and expertise, we can amplify our impact and send a clear message that piracy will not be tolerated in our digital ecosystem.[10]

      2.  Legal Enforcement: In the murky waters of digital piracy, navigating the legal and ethical terrain requires a steady hand and a clear moral compass. Debates rage over copyright law, fair use, and the balance between protecting intellectual property rights and promoting access to knowledge and culture. From proponents of stricter enforcement measures to advocates of greater flexibility and openness, diverse perspectives shape the contours of this ongoing discourse. By engaging in thoughtful dialogue and grappling with the complexities of these issues, we can chart a course towards a more equitable and sustainable digital future.

      3. Education and Awareness: As we confront the complexities of digital piracy, education emerges as a powerful tool for change. From schools and universities to community organisations and industry groups, educational initiatives play a vital role in raising awareness about the consequences of piracy and promoting digital literacy among consumers[11]. By teaching students about copyright law, creative attribution, and responsible consumption of digital content, we can empower the next generation to navigate the digital seas with integrity and respect for intellectual property rights.

      4. Offering Value-added Services: Providing value-added services such as exclusive content, bonus features, and personalised experiences can incentivize consumers to purchase legitimate copies of digital content. By enhancing the overall value proposition, content creators can attract paying customers and reduce the appeal of pirated alternatives[12].

      5. Alternative Business Models: In the face of piracy, traditional business models are being challenged like never before. Subscription-based services, crowdfunding platforms, and direct-to-consumer models offer alternative pathways for creators to monetize their work and engage with their audience. By embracing innovation and exploring new revenue streams, creators can adapt to the shifting landscape of digital consumption and reduce their reliance on restrictive DRM measures[13]. By offering value-added services and personalised experiences, they can attract paying customers and foster a culture of support for legitimate content.

      6.  Emerging Technologies: As digital pirates grow more sophisticated, so too must our arsenal of anti-piracy technologies. Blockchain, with its immutable ledger and smart contract capabilities, holds promise as a tool for tracking digital rights and preventing unauthorised copying[14]. Artificial intelligence, meanwhile, powers content recognition systems that scour the internet for pirated material, enabling swift takedowns and enforcement actions. By harnessing these emerging technologies, we can stay one step ahead of digital pirates and safeguard intellectual property rights in the digital age.

      Conclusion: Don’t be a Dinosaur, Evolve. 

      Navigating the complexities of digital piracy requires a multifaceted approach that addresses its economic, legal, and cultural dimensions. While piracy continues to pose significant challenges for content creators, distributors, and consumers, understanding its root causes and regional variations is crucial for developing effective strategies to combat it. From high-profile cases in the film, music, software, and e-book industries to the unique struggles of small-scale creators, the impact of digital piracy is profound and far-reaching.

      Combating digital piracy necessitates collaborative efforts among industry stakeholders, governments, and law enforcement to disrupt piracy networks and enforce intellectual property rights. Education and awareness campaigns play a pivotal role in fostering a culture of respect for intellectual property, while value-added services and alternative business models can incentivize legal consumption. Moreover, emerging technologies like blockchain and artificial intelligence offer innovative solutions to stay ahead of digital pirates.

      Ultimately, the goal is to strike a balance between accessibility and protection in the digital age. By fostering collaboration, embracing innovation, and promoting ethical consumption, we can create a more sustainable and equitable digital ecosystem that supports the creative industries and respects the rights of content creators. The fight against digital piracy is ongoing, but with a comprehensive and adaptive strategy, it is possible to mitigate its effects and uphold the integrity of intellectual property in our interconnected world.















      How To Draft An Employment Contract
      Sana Virani

      Employees cater to the smooth functioning of any organisation. Employees have some obligations that are needed to be fulfilled in return they also expect a few rights reserved in favor of their interest. To set both the employee and the employer on the same page, it is very important to agree on the obligations and rights together. An employment contract helps the organisation build a strong foundation for work obligations but also contributes to employee welfare at the start itself. 

      Significance of employment contract: 

      Apart from protecting the rights of employees and communicating employers' expectations in writing, there are many things that should be clear to the employees for the goodwill of the company. Employee contracts put forward the terms and conditions that specify the termination, job responsibilities, compensation, benefits, etc. This provides a sense of security from both ends. These employment contracts can also be utilized to protect trade secrets, Intellectual property, and business strategies that are discussed with employees in several instances. However, Employment contracts may differ from place to place, majorly due to the implications of the labor law of that particular country. 

      Role of labor laws in the employment contract:

      Labour law plays a huge role in shaping the obligations of employees expected by organisations. Some countries have minimum wage provisions for employees whereas some labor laws have provisions for maternal and paternity leave. 

      Austria which is a central European country has 43 paid days off work per year. In Italy, the maximum working week is set at 40 hours and overtime must not exceed 48. So before drafting an employment contract that is valid in the eyes of law, it is crucial to dive into the technicalities of relevant laws and understand the rights and obligations of the employees and organizations. Relevant laws in India that govern various aspects related to employment are Factories Act.1948, The Maternity Benefit Act, 1961, The Payment of Gratuity Act, 1972, etc.

      There are two stages that are essential to be kept in mind before drafting the employment contract: 

      1. Creation of contract-

      The creation of a contract is the first and foremost step which involves framing clauses as per the labor law and the needs of the organization. It should include all the points keeping in mind the employment period and other crucial aspects. 

      The building blocks for the creation of an employment contract are the following: 

      • Introductory and Description clause

      When a story starts, the characters and their state is mentioned in the first paragraph itself. In the same way, the description of the parties in detail makes it clear for both parties that the purpose of legally validating is a very crucial part of the contract. The title of the contract which will either be “contract of employment” or “employment contract” is to be mentioned at the top followed by the statement of parties. Apart from the name of parties/organization, Pan number/ CIN, and address are important after which background story or recitals are to be stated. Most employment contracts do not add a list of meanings and abbreviations in the employment contract but just to be sure and avoid any confusion, it is safe to give interpretations in the contract itself.  

      • Intensive operative clauses

      Intensive operative clauses can be termed as the main body of the contract. The purpose of the employment contract is to ensure that the obligations are communicated and legally acknowledged. When two people join hands, there is something that both parties owe each other. 

      Clauses that state the obligations of the employee towards the organization are: 

      • Appointment and duties: It is very clear that an employee is hired as per his or her expertise to get certain things done which will benefit the organisation. Under the appointment and duties clause, the complete job profile of the employee and 
      • Non-competition/Non-solicitation: A non-solicit clause in the employment contract restricts the employee to solicit with clients and other employees of the employer after the course of his employment. Whereas a non-compete clause bars the employee from working with companies that are in direct competition with their employer. Non-solicitation comes into picture after the course of employment whereas the non-compete clause is enforced during the period of employment and after the termination of employment.
      •  Confidentiality clause: Companies that have excelled on the basis of their trade secrets, work ethics, and business techniques should make a deliberate attempt of adding this clause. The clause of confidentiality is important to prevent the spillage of trade secrets and plans for the near future.
      • Probation period clause: Most organizations have a probation period for their employees to assess their performance before they are employed on a permanent basis. In the employment contract, the period of probation should be mentioned clearly and precisely to avoid any confusion between employees and employers. 
      • Code of conduct and principles: Every organization has its own set of rules and disciplines that are framed by the management. New employees might not be aware of it since the code of conduct needs to learn about it in advance, so it is better to make it clear beforehand in the employment contract itself. 
      • Intellectual property:  To reserve the creative innovations of the company, the intellectual property rights clause will cater the best. In the employment contract, the company shall mention that all the intellectual property conceived in the term of employment shall belong to the company. 
      • Employees duty to return the company's property: Upon entering the organization, the employee gets access to things like a laptop, email, and card– upon the termination of the contract it is the employee's duty to return everything. This clause ensures that the employee follows this rule.
      •  Benefits of employees clause

      Since a contract is to make both parties secure, employees in the term of their employment are entitled to consideration in return for their services also benefits.  

      • Remuneration: Under the remuneration clause, the organization must mention the CTC or the gross salary that is being offered to the employee with the method and date for the payment of remuneration. It should also disclose the taxes and insurance deductions that will be made to the salary. 
      • Leave policy: Each and every employee is entitled to a certain number of paid leaves as per the organization's rules. Leavy policy clause should expressly define all the festival and sick leaves. 
      • Term and Termination clause- The term clause simply defines the start date and the period for which the contract shall have legal effect whereas the termination clause states the provisions to end the contract by either the company or the employee. 
      • Miscellaneous 

      Each and every employment contract has certain standardized clauses which complete the objective of signing a contract. These clauses are often known as boilerplate clauses and irrespective of the type or jurisdiction of the contract, they are a part of it. 

      A few miscellaneous clauses that suit employment contract are: Amendment, Successors, Third-party, No-waiver, Severability, Enforcement, Governing Law, Arbitration, and Notice. 

      1. Perfection of a Contract

      This is the final stage where the contract is actually made effective through execution.The formalities that are necessary for the perfection of the contract are:

      • To signify the consent of both parties on each and every part of the contract, it is important for both parties to sign the contract. This also makes it clear that both have read and this contract shall be legally enforceable. 
      • An Employment Agreement need not be registered for it to contain evidentiary value but stamp duty has to be paid.  Stamp duty rates can be checked in the schedule of the applicable Stamp Act as it differs from state to state. 

      In times when the contribution of employees can make or break the vision of an organisation, it is very necessary to have an employment contract. It should be tailored as per the needs of the organization as well as keeping laws that affect employees in balance. This article covers all the aspects and steps required to draft an employment contract. The above information gives you a sufficient knowledge boost as a business owner but it is always preferable to hire a professional that can take care of the legalities of your business.