Questions to Ask a Trademark Attorney

Hiring a trademark attorney is a smart move when you’re ready to protect your brand name, logo, slogan, or product line. But before you dive into working with just any lawyer, it’s important to know the right questions to ask. Choosing a trademark attorney is more than just finding someone who can file paperwork—you want a partner who understands your business goals and can protect your brand for the long haul.

Whether you're meeting in person or having a virtual consultation, asking the right questions can help you find an attorney who’s a good fit. Here’s a list of key questions to ask a trademark attorney before you get started.

1. Do You Specialize in Trademark Law?

Not all attorneys are trademark attorneys. Make sure you're speaking with someone who has real experience in this area of law. Trademark law is highly specific, and working with a general business or contract attorney could lead to costly mistakes.

Follow-up:

• How many trademark applications have you filed?
  
  

• Do you regularly deal with the USPTO?
  
  

2. What Is Your Trademark Search Process Like?

Before filing an application, a comprehensive trademark search is essential. This search goes beyond a quick look on Google—it should include the USPTO database and potentially even common-law trademarks (those not formally registered but still protected under the law).

Ask the attorney:

• What databases do you search?
  
  

• Will you give me a written opinion on the likelihood of my trademark being approved?
  
  

3. What’s Included in Your Trademark Filing Fee?

Trademark attorneys often offer flat-fee packages, but not all packages include the same services. Some might only cover the application itself, while others include the search, monitoring, and responses to office actions.

Clarify:

• What does your fee include?
  
  

• Are government filing fees included or separate?
  
  

• Will I have to pay extra if we receive an office action?
  
  

4. How Do You Handle Office Actions or Refusals?

Office actions are responses from the USPTO when there’s a problem with your application. These could be minor (like needing clarification) or more serious (like a likelihood of confusion with another mark). It’s important to know how the attorney will help if that happens.

Ask:

• Have you responded to office actions before?
  
  

• Is that service included in your flat fee, or is it billed separately?
  
  

5. What Happens After My Trademark Is Registered?

Filing and registration are just the beginning. Once your trademark is approved, it’s up to you to maintain and enforce it. Your attorney should help with these post-registration tasks.

Ask:

• Do you offer monitoring services to watch for infringement?
  
  

• Will you help me enforce my trademark if someone uses it without permission?
  
  

• Do you help with renewals?
  
  

6. How Long Will the Process Take?

The trademark process isn’t instant—it often takes 8 to 12 months from application to registration. An experienced attorney can explain what to expect and keep things moving smoothly.

Follow-up Questions:

• How long does it usually take for your clients to get their trademarks?
  
  

• Will you keep me updated throughout the process?
  
  

7. Can You Help with International Trademarks?

If you plan to do business outside the U.S., ask whether the attorney can help file trademarks internationally. This involves different legal systems and may require coordination with foreign counsel.

Ask:

• Do you assist with international trademark filings?
  
  

• Can you explain how the Madrid Protocol works?
  
  

8. Can You Share Testimonials or Case Studies?

A reputable trademark attorney should be able to share client success stories or offer references. This can give you insight into their experience, professionalism, and communication style.

9. What’s Your Communication Style?

Clear and timely communication is key. You want an attorney who will keep you in the loop and answer your questions without delays.

Ask:

• How do you prefer to communicate—email, phone, virtual meetings?
  
  

• How quickly do you usually respond to client questions?
  
  

10. Are You the Person Who Will Be Handling My Case?

In some firms, the person you consult with isn’t the one who ends up handling your case. Clarify this early so you know who to expect updates from.

Looking for a Trademark Attorney in Orlando?

If you're ready to protect your brand and want trusted legal guidance, consider working with an experienced trademark attorney in Orlando. Braslow Legal helps businesses navigate the trademark process from start to finish—with clear communication, upfront pricing, and the personalized service you deserve.

Final Thoughts

Choosing a trademark attorney is an important decision, and asking the right questions can help ensure you find someone who understands your business, communicates clearly, and knows how to protect your brand. Whether you're filing your first trademark or building a growing portfolio, a knowledgeable attorney can be a valuable partner every step of the way.

How Much Is a Trademark Attorney?

If you're launching a business, product, or brand, securing your trademark is a smart step to protect your identity in the marketplace. While it’s possible to file a trademark on your own, many entrepreneurs and business owners choose to work with a trademark attorney for peace of mind and stronger legal protection.

Naturally, one of the most common questions people ask is: How much does a trademark attorney cost? The answer depends on several factors, including the complexity of your application, the scope of services you need, and the attorney's experience.

Let’s explore what goes into the cost of hiring a trademark attorney—and why it’s often worth the investment.

The Basics of Trademark Attorney Fees

Trademark attorneys typically charge in one of three ways:

1. Flat Fees
   
   

2. Hourly Rates
   
   

3. Retainers (for ongoing work)
   
   

For most standard trademark applications, many attorneys offer flat-fee packages that cover the core services involved in filing. This gives clients clarity and predictability, which is especially helpful for startups and small businesses working with tight budgets.

Typical Flat-Fee Trademark Services

Here’s a general idea of what flat-fee trademark services might include:

• Comprehensive trademark search: $300 – $600
  This includes a deep search of the USPTO database and other public records to identify any potentially conflicting marks.
  
  

• Trademark application preparation and filing: $500 – $1,500
  This covers drafting and submitting the application with the correct classifications and legal language, ensuring it's properly filed with the USPTO.
  
  

• Responding to office actions (if needed): $200 – $1,000+
  If the USPTO raises any issues, such as a likelihood of confusion or a technical mistake, the attorney can draft a legal response on your behalf. Some firms bundle this into their original fee, while others charge separately.
  
  

In total, you might expect to pay anywhere from $1,000 to $2,500 for complete trademark services, not including the USPTO’s government filing fee (which typically ranges from $250 to $350 per class of goods or services).

Hourly Rates for Trademark Attorneys

In some cases—especially with complex trademark issues, international filings, or disputes—attorneys may bill by the hour. Rates vary based on location and experience but generally fall in the range of:

• $200 to $500 per hour
  
  

This may apply if you’re seeking legal advice on enforcement, opposition proceedings, or infringement matters rather than just filing a new application.

Why Costs Can Vary

The cost of hiring a trademark attorney isn’t one-size-fits-all. Here are a few factors that can influence pricing:

• The uniqueness of your trademark: Common or descriptive trademarks may face more obstacles, requiring more legal work.
  
  

• Number of trademark classes: The more categories of goods/services you want to protect, the more time and filing fees are involved.
  
  

• Previous filings or office actions: If you're hiring an attorney to fix a previously rejected or poorly filed application, additional work is needed.
  
  

• Attorney experience and location: A seasoned trademark attorney in a major metro area may charge more than someone newer to the field or based in a smaller town.
  
  

Is a Trademark Attorney Worth the Cost?

It’s understandable to want to keep costs down when starting a business. But filing a trademark incorrectly can end up costing you much more in the long run. If your application is denied due to an avoidable error, you may lose your filing fee, waste valuable time, and risk your brand being vulnerable to infringement.

A qualified trademark attorney helps you:

• Avoid conflicts with existing marks
  
  

• File your application correctly the first time
  
  

• Respond effectively to USPTO office actions
  
  

• Enforce your rights if someone tries to use your brand
  
  

In many cases, the cost of a trademark attorney is a small price to pay for long-term brand protection.

Looking for a Trademark Attorney in Orlando?

If you're searching for an experienced trademark attorney in Orlando, Braslow Legal offers clear, affordable pricing and personalized service. Whether you’re just starting your brand or managing a growing trademark portfolio, our team can help you protect what matters most with confidence.

Final Thoughts

So, how much is a trademark attorney? While the cost can range from a few hundred to a few thousand dollars, the value they bring to the table—legal strategy, peace of mind, and protection from future problems—often far outweighs the upfront expense.

If your brand is important to your business (and it almost always is), working with a trademark attorney isn’t just a cost—it’s an investment in your future success.

Understanding Sports Gambling Laws

What is Sports Gambling?

Sports gambling, also known as sports betting, involves predicting the outcome of sporting events and placing wagers on those predictions. The industry has seen rapid expansion, particularly with the rise of online platforms, making it easier for bettors to participate across multiple jurisdictions.

However, sports gambling is subject to strict legal regulations that vary by state. Understanding these laws is essential for both individual bettors and businesses operating in the gaming industry.

The Legal Landscape of Sports Betting in New Jersey and Florida

Sports betting laws differ across the U.S., with each state setting its own regulations. Braslow Legal operates in New Jersey and Florida, two states with distinct approaches to sports gambling:

• New Jersey – A leader in legalized sports betting, New Jersey has allowed online and in-person wagering since 2018. The state hosts numerous licensed sportsbooks, making it one of the most competitive sports betting markets in the country.

• Florida – As of December 2023, online sports betting is legal in Florida exclusively through the Seminole Tribe’s Hard Rock Bet app, following a series of legal challenges. Florida’s sports betting market remains limited compared to New Jersey but continues to evolve.

Understanding the legality of online sports betting in your state is crucial before placing any wagers.

Key Considerations for Sports Betting Participants

For individuals and businesses involved in sports gambling, there are several important legal and strategic factors to consider:

• State Regulations – Each state has different licensing requirements and restrictions on sports betting. Bettors and businesses must comply with their respective state's laws to avoid legal issues.

• Tax Implications – Winnings from sports betting are considered taxable income. Proper reporting and compliance with IRS regulations are necessary to avoid penalties.

• Consumer Protections – Licensed sportsbooks must adhere to responsible gaming practices, including deposit limits and self-exclusion programs to protect consumers.

• Emerging Trends – The sports betting industry is constantly evolving, with new laws, technologies, and market expansions. Staying informed about these developments is crucial for both bettors and operators.

Why You Need a Sports Gambling Attorney

Sports betting regulations are complex and frequently changing. Whether you are an individual bettor, a gaming business, or a sports betting operator, having an experienced sports gambling attorney is essential for compliance and risk management.

At Braslow Legal, we specialize in sports gambling and gaming law, providing comprehensive legal services, including:

• Compliance with state and federal gambling laws

• Licensing and regulatory approvals for gaming businesses

• Defense against gaming-related legal disputes

• Contract negotiation for gaming operators and partnerships

With licenses to practice in New Jersey and Florida, our firm offers tailored legal solutions to help clients navigate the intricacies of gaming law and ensure full compliance with all applicable regulations.

Contact Braslow Legal for SKILLED Gambling Law Counsel

If you are involved in the gaming industry or need legal guidance regarding sports betting regulations in New Jersey or Florida, Braslow Legal is here to assist. Our attorneys have the experience and knowledge to help you stay compliant and protect your interests in this evolving legal landscape.

Contact us today to schedule a consultation with a sports gambling attorney and ensure your legal compliance in the gaming industry.

Disclaimer: This blog post provides general legal information and should not be considered legal advice. Laws and regulations are subject to change. Please consult a qualified attorney for specific legal guidance.

Do You Need an Attorney to File a Trademark?

If you’re looking to protect your brand, securing a trademark is one of the most effective ways to establish ownership of your business name, logo, or slogan. But as you begin the process, you might wonder: Do you need an attorney to file a trademark? While you are not legally required to hire an attorney to file a trademark with the United States Patent and Trademark Office (USPTO), working with a professional can significantly improve your chances of a successful registration and long-term brand protection.

Understanding the Trademark Process

A trademark is a unique symbol, phrase, or design that distinguishes your goods or services from competitors. Registering a trademark with the USPTO grants you exclusive rights to use that mark in commerce and helps prevent others from infringing on your brand identity.

The application process involves several steps:

1. Conducting a Trademark Search – Before filing, it’s essential to ensure your desired trademark isn’t already in use. A comprehensive search helps you avoid conflicts and potential legal disputes.

2. Filing the Application – You’ll need to submit detailed information about your trademark, including its design, usage, and classification.

3. Responding to Office Actions – The USPTO may issue an Office Action if there are concerns about your application, requiring a legal response.

4. Maintaining Your Trademark – After registration, you must periodically renew and monitor your trademark to maintain its legal protection.

While these steps might seem straightforward, many business owners face unexpected challenges that can delay or jeopardize their trademark application. This is where hiring an attorney can make a big difference.

The Benefits of Hiring a Trademark Attorney

Even though you can file a trademark application on your own, hiring an experienced attorney offers several advantages that can save you time, money, and potential legal headaches.

1. Comprehensive Trademark Search

A skilled attorney will conduct an in-depth search to ensure your desired trademark is unique and unlikely to be challenged. DIY searches often miss similar marks that could lead to rejections or legal conflicts down the road.

2. Avoiding Costly Mistakes

Filing a trademark application involves complex legal language and strict requirements. Mistakes in classification, description, or documentation can lead to refusals or unnecessary delays. An attorney ensures your application is accurate and complete.

3. Handling USPTO Office Actions

If the USPTO identifies issues with your application, they will issue an Office Action, which requires a response. Trademark attorneys understand how to craft persuasive legal arguments to overcome refusals and secure your registration.

4. Protecting Your Trademark Rights

Once your trademark is registered, enforcement becomes crucial. An attorney can help you monitor for potential infringements, send cease-and-desist letters, and take legal action if necessary to protect your brand.

5. International Trademark Protection

If you plan to expand your business globally, trademark laws vary by country. A trademark attorney can guide you through international trademark applications, ensuring your brand is protected beyond U.S. borders.

When Is Hiring a Trademark Attorney Required?

While it’s generally optional for U.S. applicants, hiring an attorney is mandatory for foreign-domiciled individuals or businesses seeking a U.S. trademark. The USPTO requires non-U.S. applicants to work with a licensed U.S. attorney for trademark filings, responses, and legal proceedings.

Additionally, if you face opposition from another company or need to defend your trademark in court, having an attorney is crucial to navigating these legal battles effectively.

Can You File a Trademark on Your Own?

Yes, the USPTO allows individuals and businesses to file trademarks without an attorney. Many entrepreneurs and small business owners opt for a DIY approach using the USPTO’s online application system. While this can work for simple filings, it carries significant risks, especially if:

• Your trademark is similar to an existing mark.

• You’re unsure which classification best fits your product or service.

• Your application is rejected or faces legal opposition.

Even minor errors can lead to refusals, requiring costly re-filings or legal proceedings to correct mistakes. Investing in professional assistance upfront can prevent these complications.

How to Choose the Right Trademark Attorney

If you decide to hire a trademark attorney, look for someone with:

• Experience in intellectual property law and trademark filings.

• A successful track record of securing trademarks for clients.

• Knowledge of your specific industry or business sector.

• Clear communication and transparent pricing.

An experienced trademark attorney in Orlando can provide personalized guidance and legal expertise to ensure your trademark is properly registered and protected.

Final Thoughts

While you are not legally required to hire an attorney to file a trademark, doing so can greatly increase your chances of a smooth and successful registration process. Trademark law is complex, and mistakes can be costly. Whether you’re launching a new brand or protecting an established business, a skilled trademark attorney can help safeguard your intellectual property and ensure long-term brand security.

If you’re considering filing a trademark, consulting with a professional can provide peace of mind and help you avoid potential legal pitfalls.

Copyrights: A Brief Overview

What is Copyright?

Copyright is a type of protection provided to authors of intellectual property such as movies, art, literary, and musical creations. A copyright acknowledges that a person is the originator of a work and gives them full discretion to allow or deny someone the use of their work. In the event a person or company uses the intellectual property without permission, a copyright can be helpful in pursuing legal action against the infringer.   

What is not Protected by Copyright?

While the term “intellectual property” may seem broad, the U.S. Copyright Office is very clear that the following are not protected by copyright: 

• Ideas, procedures, methods, systems, processes, concepts, principles or discoveries; 

• Works that are not in tangible form {i.e. a poem you recite to yourself but do not put on paper, or a play you produce but do not record); 

• Titles, names, short phrases and slogans; 

• Familiar symbols and designs; or

• A list of ingredients or contents, or slight variations of typographical lettering or coloring. 

Why Should I Copyright my Work?

In the United States, it is not required to file a copyright registration for an original work – technically, the minute an original work is created, copyright exists. However, there are several business law benefits to the author if he/she chooses to file a copyright; some include:

• The right to reproduce the work, whether in print or audio/visual records.

• Create imitations of the original work. 

• Distribute copies of the work by offering it for free to the public, selling it, renting or leasing it, and lending it. 

• Perform or display the work publicly without needing to obtain permission from an original author. 

• Transfer ownership of copyrighted material to another person or enterprise. 

The Copyright Application Process

The process to file a copyright registration can be confusing, and if not done correctly, expensive. There are several factors to consider when registering a copyright, and each factor will have different requirements. Our intellectual property attorneys begin by determining whether or not your work is unpublished or published – that is, whether or not your work is ready for commercial distribution. From there, the application process will vary depending on the type of work you wish to copyright. Some applications can be filed electronically, while others must be completed on paper and mailed to the U.S. Copyright Office. Regardless of the work type, all applications are accompanied by a registration fee and must include a quality deposit of the work itself. For example, if you wish to copyright a film you produced, then you will need to deposit a quality copy of the film. If you wish to copyright a series of poems you wrote, then you will need to deposit a quality copy of the poems. The average waiting period for a copyright application to proceed to registration is 5-7 months, so it is important to properly complete the application and submit adequate deposits of your work. 

Why Should I Hire an Intellectual Property Attorney?

Filing a copyright application may seem like a daunting task. How do you know which application to file? Can you file online or do you have to mail a paper application? Which deposit formats will the Copyright Office accept? What do you do if your application is rejected? Our intellectual property attorneys have the experience and knowledge in business law necessary to assist you in the application process and get your work the protection it needs and deserves.  

Trademarks: A Brief Overview

What is a Trademark?

A trademark identifies intellectual property belonging to a person or company and provides them with exclusive rights to that work. A trademark is typically a symbol, design, word, or phrase (or a combination of these things), that differentiates one good from another. A trademark sets your business apart from other companies that might offer the same or similar goods, and can help you protect your brand if another person or company attempts to use your intellectual property without your permission. A trademark attorney can help protect your intellectual property by helping to secure a trademark on your work.

Can I Trademark Anything?

In short, the answer is no. First, let’s cover what you cannot trademark:

• Generic terms and/or phrases

• Government symbols or insignia 

• Proper names or likeness without obtaining consent from that person

• Vulgar and/or disparaging words or symbols 

• Immoral, scandalous, or deceptive words or symbols

Next, let’s cover a few important factors to consider when fabricating a trademark:

• The mark is unlikely to be confused with other, existing marks

• The mark is not similar to other, existing marks 

• The mark is not relative to other, existing marks

• The mark is strong and easily distinguishable to consumers 

You might be wondering how to ensure your desired trademark meets all of these requirements, and that is why it is important to hire an experienced intellectual property and trademark attorney to assist you with the trademark application process.  

The Trademark Application Process

Filing a trademark application can be a long and complicated process if you fail to prepare accordingly. Typically, our intellectual property attorneys begin by requesting a Trademark Research Report; this report analyzes thousands of existing trademarks for those that are similar, nearly identical, or identical to your desired mark. Once we receive the report, we review it for marks that may prevent you from filing a trademark application, or those we think might raise a red flag with the United States Patent and Trademark Office (USPTO). While this report is not a mandatory requirement in the application process, it can save our clients time and money in the long run by highlighting issues with their desired mark that would prevent or make it challenging for the mark to proceed to registration. It is important to note that when applying for a trademark, there is no “pre-approval” process – once the application is submitted, a client will not find out whether or not it has been accepted for several months. After our trademark attorneys review the report and advise the client of any potential issues, and if the situation warrants, the trademark application is filed with the USPTO. It typically takes several months for the application to process through the USPTO’s database due to the high volume of trademarks filed in the United States. Ideally, the application is accepted and the trademark proceeds to registration. However, there are occasions where an examining trademark attorney might find a correctable issue with the mark or the application itself, and they will send correspondence saying as much - this is known as an Office Action. Typically, these issues can be addressed in a response to the Office Action and the mark can then potentially proceed to registration thereafter depending on the issue raised in the Office Action.  

Why should I hire an Intellectual Property Attorney? 

As you can see above, the process to file a trademark application can be somewhat complicated. Even if your trademark application were to proceed to registration without issue, there are still various forms and fees that the USPTO requires you to file every so often in order to keep your trademark registration alive, such as trademark renewals. Our intellectual property attorneys routinely assist clients with trademark applications and the miscellaneous forms and fees required to maintain trademark registration. 

What are Website Documents and Why Do You Need Them?

Do you own or operate an internet business or mobile application? If so, defining proper guidelines for visitors to your website or app is crucial to your legal protection. While there are various ways to protect your business, implementing Website Documents such as User Terms of Service and a Privacy Policy can minimize your exposure to legal risks. By retaining a business lawyer Orlando area businesses trust, the appropriate documents can be written in order to protect your business. 

User Terms of Service 

User Terms of Service, also known as Terms of Use or Terms and Conditions, is an agreement between you, the website or application owner, and the users of your site or app.  The terms of the Agreement outline the rights and responsibilities of each party, so it is important that this document be correctly prepared and legally enforceable. Your User Terms of Service should clearly explain what a consumer can expect when using your website or app, and will vary from site to site depending on the services or products offered. These Terms typically cover a multitude of issues such as steps for terminating an account, refund policies (if you charge a fee), and the county and state that will govern a legal dispute in the unfortunate event one should occur.  

Privacy Policy

A Privacy Policy is a statement to the users of your website or application that explains how their personal information is collected, and what it will be used for. If your website or mobile app collects information such as name, birthdate, email address, username, or address, etc. from consumers when they use your site or app, you will need to state as much in a Privacy Policy posted to your site or app. It may be true that your site or app does not collect any personal information, but you should still have a Privacy Policy reflecting that as the case. Either way, there are various laws in place to protect consumers and their personal information, and one of the best ways to protect your business is to clearly explain your practices in a Privacy Policy.

Can I just use another website’s policies? 

While it may seem like a way to save time and money, copying another website or application’s User Terms and Privacy Policy can lead to several potential issues. Using documents from another website as your own could be copyright infringement and make you vulnerable to lawsuits brought by intellectual property owner(s). Moreover, the laws and regulations governing consumer privacy are always evolving, meaning you run the risk of using outdated and potentially illegal information. The stakes are even higher for mobile application owners as they risk having their application removed from or denied access to the marketplace for lack of appropriate policies. 

If you currently operate a website or mobile application, our internet law attorneys can review your User Terms of Service and Privacy Policy for validity, and advise you of any necessary changes. If your site or app lacks these documents, or you are a new startup, the business lawyer Orlando area companies count on can work with you to prepare these necessary terms and policies. 

Protect Your Business Now and in the Future

Are you an entrepreneur? Do you have a strong legal team helping you make vital business decisions? There are many unique legal issues associated with operating a business, so it is important that you hire a competent employment lawyer to help you navigate the process. Employment lawyers can provide you with a wide range of services including preparing independent contractor and non-disclosure agreements (NDA), helping you manage legal issues related to your staff, and ensuring your business is protected against legal actions involving your employees.

Why Should You Hire an Employment Lawyer?

Employment lawyers are knowledgeable and experienced in matters regarding legal issues related to onboarding new hires, managing existing staff, and the negotiation and preparation of employment contracts and independent contractor agreements. They can also advise you on policies and procedures in your workplace and make suggestions for change as necessary. Are you concerned about an employee leaving your company and taking your business with them? An employment lawyer can prepare a noncompete agreement to protect your biggest asset – customers. Do you have trade secrets that are imperative to the services or products you offer? An employment lawyer can draw up a nondisclosure agreement to safeguard against employees sharing protected information with competitors.

Understanding Employment Law

There are various laws and regulations, both at the state and federal level, that govern employment issues and hiring practices. These laws will affect your hiring process in different ways, especially if you intend to hire both traditional W-2 employees and independent contractors. A significant part of employment law is essentially manages the relationship between you and the people you employ, and outlines the rights and responsibilities of each party. Together with these laws and your business practices, an employment lawyer can help you clearly define what you expect from your employees and what they can expect from you in return.

If you intend to hire independent contractors it is important that the terms of the employment agreement be clearly defined. Will you provide benefits? Do you offer reimbursement for expenses such as travel or home office supplies? Is the contractor required to give a certain amount of notice to resign? A clear and concise agreement should cover these issues as well as all of the responsibilities you have to the contractor, and they have to you.

Are Employment Lawyers Expensive to Hire? 

Cash flow is a vital aspect of business operations. As entrepreneurs, we understand and sympathize with the stress you might feel about hiring a firm to assist you with employment law issues. You have likely invested many resources, both financially and personally, into your business to ensure its success. The reality of business ownership is that you are vulnerable to various legal issues, especially involving your employees and employment law regulations. By allocating resources to hire a competent and experienced firm you are mitigating your legal risk and taking steps to protect yourself and the future of your company.

Who do We Work With?

Our firm assists businesses both new and established, large and small. Whether you are a new start-up seeking input on hiring new employees or a long-standing company wishing to improve your business operations, we can help. Contact our office today to schedule a free consultation. 

A Legal Guide to Skill Gaming

This Guide is intended to provide an overview of the various legal issues associated with Skill Gaming, and is not offered as a legal opinion on a particular business model or specific state laws. Contact reputable sports and entertainment law firms if you have additional questions.

What is Skill Gaming?

A game of skill is a game or contest in which the outcome is determined by mental or physical skill, rather than chance. It is paramount for gaming operators to understand the distinction between skill and chance in order to mitigate their exposure to significant legal repercussions. Jurisdictions vary on their interpretations of the distinction, so it is important to learn how these activities are defined in the marketplace. Sports and entertainment law firms can provide additional clarification.

The Element of Skill

Every state prohibits unlicensed gambling. However, gambling laws only apply to games that involve the elements of prize, chance, and consideration (i.e., payment or reward). In order to avoid being labeled as gambling, the outcome of a game must be governed by skill, not chance. 

The question is: How much skill? Courts across the nation differ in how to weigh the element of skill in comparison to chance. In evaluating whether the degree of skill involved in affecting the outcome of a game is sufficient to avoid violation of a state's gambling laws, courts typically use three approaches: (i) whether skill or chance is the dominant factor in the outcome ("Dominant Factor Test"); (ii) whether chance is a material element in the outcome ("Material Element Test"); or (iii) whether any chance at all is involved ("Any Chance Test"). The test used could determine whether your game is a legal game of skill, or illegal gambling.

A. Dominant Factor Test

The Dominant Factor test asks whether the outcome of the game is determined more by the participants' skill rather than by chance (i.e. events like dice rolls or random number generators should have little impact on the outcome of the game). The primary question is whether skill or chance is the dominant or controlling factor in determining the winner of the contest or game.

B. Material Element Test

The Material Element test focuses on whether chance plays any meaningful role in determining the outcome of the game. Under this test, it does not matter whether skill plays a significant, or even dominant, role in determining the outcome. The game will be deemed gambling if chance plays a meaningful role. 

C. Any Chance Test

The Any Chance test evaluates whether chance plays any role whatsoever in determining outcome. Under this test, if any element of chance affects the outcome, then the game is considered one of chance. For example, the game of blackjack involves chance card flips and the skill of the player in deciding whether to "hit" or "stand." Since this game involves at least some chance (the card flips), it likely would not pass the Any Chance test and would be considered gambling. The Any Chance test is the strictest test for classifying skill games, and can render wagering on most any game illegal gambling.

Entry Fees

It gets complicated when entry fees are charged to participate in a game of skill. Some courts have recognized that paying an entry fee to participate in a game of skill, in the hopes of winning a prize, is a traditional part of American social life. However, other courts have held that if the entry fees are linked to the prize amount, and used to pay the prizes, the game involves a "wager" which can be illegal. Federal law exempts certain fantasy sports and other contests, but only if the prize is announced in advance, and the amount of entry fees does not impact the prize. Therefore, the handling of entry fees can be a critical element of risk mitigation in skill gaming.

Regulation

Skill Gaming is essentially unregulated in most of the United States. Federal law does not prohibit skill gaming, but, as noted above, does provide a safe harbor exemption for certain contests of skill that meet the statutory criteria. Most states do not expressly prohibit skill games by statute, but instead, focus restrictions on traditional gambling. States like Florida represent the exception, where wagering on skill games is prohibited by statute, along with games of chance. Even there, the courts struggle to permit participation in some Skill Gaming activity, such as midway fair games or golf tournaments. Instead of imposing a blanket prohibition on Skill Gaming, the courts often distinguish between illegal wagering on games of skill, and legal participation in contests involving skill. This can lead to inconsistent and unpredictable results. Often the "look and feel" of the game can be an important factor if its legality is tested in court.                                                           

Certification

The actual functioning of a skill game can be tested and "certified" by various game testing laboratories. The lab will independently evaluate the functionality of the game, and render a report confirming its actual operation. Any operator looking to offer a skill game should consider obtaining a certification from a reputable lab, describing how the game works, and how the element of skill plays out during gameplay. Such certifications can be important evidence in the event of a court challenge.

If you are interested in offering legal skill games on the Internet, via mobile apps, or in retail locations, you would benefit from a consultation with our gaming attorneys. Working with experienced sports and entertainment law firms can help you avoid unintentionally violating gambling laws which can carry serious consequences.  

What are Business Lawyers and How Can They Help?

Business Lawyers focus their practice on assisting businesses, both large and small, with the various functions of operating a business, including compliance with the many laws and regulations governing your jurisdiction. In addition to these services, some Business Lawyers have additional knowledge and experience in Intellectual Property matters, which can help you protect your ideas and inventions.

Every year, countless Trademark applications are filed in the United States. Unfortunately, some of them are never registered or face many hurdles in the process to registration. The United States Patent and Trademark Office, which oversees Trademark applications, can be a minefield to navigate on your own. Business Lawyers with experience in the application process can assist you and help circumvent common problems like Office Actions and Refusals. Business Lawyers can also with help with branding and creating strong personality profiles.

In addition to Intellectual Property matters, Business Lawyers can assist you with affairs such as starting a new company, hiring employees, preparing vendor agreements and negotiating terms, and providing insight regarding Board decisions. They can also help prepare you in the event someone seeks legal action against your business, or should you need to seek legal action against another company or individual. In the unfortunate event your business needs to cease operations or you need to dissolve a partnership, experienced Business Lawyers can assist you in the process so you come out of the other side with as little harm as possible.

Finding the Right Business Lawyer for Your Business

Operating a legal and profitable business is no small feat. It is imperative to your success that you have an experienced legal team comprised of knowledgeable Business Lawyers you can trust. When searching for Business Lawyers, take the time to schedule a Consultation and ask important questions. How long have they been in practice? Do they have experience working with your type of business? If it is relative to your operations, do they have adequate Intellectual Property experience? Review their status with the Bar in your state to ensure their license is active and they do not have a history of disciplinary issues. Any reputable lawyer should be more than happy to provide you with answers to these questions.

Your business and ideas are invaluable. Make sure your legal team and the Business Lawyers you hire put your best interests first. For more information on how our firm can help your business thrive, please contact us today.