This week’s small business news roundup discusses what small business owners had to say about President Obama’s State of the Union address, how campaign spending affect small businesses, a guide to small business survival, the growing appreciation of technology and apps by small business owners, and how to choose a mobile carrier for your small business. Let’s go!

First two other great roundups:

• This Week in Small Business: Gross National Happiness: The New York Times recaps Obama’s rejection of the Keystone pipeline, a rise in builder confidence, SOPA/PIPA backlash, why some major brands are embracing Instagram, and much more.

• 3 Things You Should Know About Small Business: Jan. 26: The Street talks about the success of fast food restaurants in a struggling economy, the FTC’s new Business Opportunity Rule, and how to be a part-time entrepreneur.

And now the rest:

• Small business leaders offer mixed reviews of State of the Union: The Washington Post reports on various opinions of small business leaders on what the President did and did not say in the State of the Union address this past week.

• Why campaign spending rules hurt small business: This article at CNN.com by David Brodwin discusses the ramifications of the Supreme Court’s Citizens United decision, finding that money is speech and that such “speech” by corporations and other groups can’t be limited by restrictions on spending during elections.

• A Guide to Small Business Survival: Small Business Trends has a great list of links that covers basic resources, marketing tools, soul searching and decision making, and networking and branding. To be bookmarked!

• Survey Finds Small Businesses Warming Up to Technology, Apps: Fox Small Business reports that a recent survey found 38% of small business decision makers are using smartphones or tablets, and 41% are interested in using apps. Has your small business embraced technology?

• How to Choose a Mobile Carrier for Your Small Business: PC Advisor shares tips on how you can get the best plan for your enterprise. The article is geared toward UK readers, but much of the advice can be applied Stateside as well.

As always, you can keep up with the latest small business news by following @LegalZoom on Twitter and LegalZoom on Facebook.

What’s new in your small business world this week?

Sign up for the LegalZoom newsletter!

On Tuesdays and Fridays, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss the last Free Joe? Don’t worry. We’ve got it all right here.

Karin: My mother is elderly and has been revising her will. What should she do about her property? Some advise to sign it over to the children in order not to pay estate taxes, is this good idea or not? Also, how long should it take to probate a will?

Joe Escalante: I can’t give you tax advice, but I can tell you that if you place the property in a living trust, that property will not go through probate at all and that saves you a ton of money and time. Probate can take months and months depending on the county’s back log, etc. Click the living trust link below and get some info before it’s too late.

LegalZoom: Here you go, Karin: http://www.legalzoom.com/living-trusts/living-trusts-overview.html?cm_mmc=social-_-fb-_-freejoe-_-na

Cheryl: can I get a visitation order modified on my own in MO????? I can’t afford a lawyer and need to get it done for the safety of my children, already proven him abusive and not mentally able to take care of children

Joe Escalante: You can petition the court on your own without an attorney, but of course you are at a certain disadvantage. However, people do it all the time. You are called a “pro se” litigant. That will help you when searching for help with this on line. The father will of course have to be served with notice of any proceeding that will affect his rights.

Trish: How do you fight CPS and their misconduct and criminal actions in child abuse cases when they continue to lie, ignore, and dismiss abuse of a child due and keeping a child or children with an alchoholic, abuser, pedaphile, or a obvious neglectful parent?

Joe Escalante: Each state has their own “complaint” process. of course, you should start there. If that doesn’t work, you could sue the state in civil court for negligence. You could harness the power of the Attorney General to file criminal charges. However, both those options are problematic and almost impossible.
Government workers have a qualified immunity with respect to carrying out their government duties, so that makes it tougher. You need a fancy lawyer to get any results with this kind of trouble. The most important thing to do right now is to gather all your evidence and witnesses. You will need that.

Barbara: question for Joe Escalante. We are getting a Durable power of attorney for my 92 year old mother. Can she still write some checks and used her credit card if it take affect immediately. We don’t want her to feel useless and that she can’t do anything. Please help. We already received the paper from Legal zoom.

Joe Escalante: A POA does not take away a principal’s rights to make decisions. An agent just gains the power to act along with the principal, in accordance with the authorization in the written document. Only a court, through a guardianship and / or conservatorship proceeding, can take away a principal’s rights to govern his or her own self.

Janice: Joe, I have a sister who took over my brothers estate (no will) when he died Aug 9th 2008. She and my other brother split his assets. Then on Nov 9th 2008 my mother died. She was executor of her estate. She is dispursing assets the way she wants without regard for my mothers wishes. Also not providing paperwork required by law of an executor. The estate is not finalized as of today. What state agency in Idaho is in charge of enforcing executors to legally do their duty as executor? Any direction would be helpful.

Joe Escalante: You need to talk to the probate lawyer, or that equivalent, in your county to begin to get this cleared up. Each county is different but in my county there is a guy who is the “lawyer” for the county in terms of probate issues like this. It sounds like your brother and sister may be committing fraud against you and creditors of the estates that are not being legally probated.

Tati: so if they rent a truck with problems and you get into a minor accident due to the truck not being up to par and they tell you oh yea there is something wrong with the truck can you still sue them.

Joe Escalante: If there is evidence that the damages were caused by negligence of the rental company, they will be liable for the damages. If they deny it, the court will need substantial evidence to decide if you have proved that it was their fault. If they told you there was something wrong with the truck, make sure you get it in writing.

Elli: My daughter is giving us the deed to a property that we have been paying off while living there. We have also been paying the taxes on it each year. What other taxes would we be charged in the transaction? Someone said to have her sell it to us for $1.

Joe Escalante: Someone’s an idiot, and it may be that person. Don’t take tax advice from anyone but a professional. I am not one, but I am a believer in trusts. That property could be in a trust that effectively awards the property to you when you have done all these things you are describing, like paying mortgage, and property taxes, etc. An estate lawyer is best to talk this over with since it is somewhat complicated, but at least check into the trust info on legalzoom to see if that will suit your needs. Click below.

LegalZoom: Here’s the link, Elli: http://www.legalzoom.com/living-trusts/living-trusts-overview.html?cm_mmc=social-_-fb-_-freejoe-_-na

Steven: I was found guilty of DWI did my time and now bazoria county claims I still have huge fines but the DA says I don’t who do I talk to?

Joe Escalante: This unfortunately involves a local county mess that I couldn’t really help with. If you were represented by an attorney, he should clear this up for you. If you weren’t, this may be the reason you are in this spot. Talk to a DWI attorney in your county and get his take on it. There are some fees that may go to the county, some to the DMV, and some to the court.

Michael: If a state has violated your United States Constitutional rights to “Equal Protection of law” and “Due Process of Law” by failing to properly served to with a child support withholding order and then start garnishing your wages are you entitled to recover those illegally garnished wages?

Joe Escalante: Yes. There are attorneys that do that all the time. You might be able to find one on a contingency deal. Try Attorney Connect below to start looking for one.

LegalZoom: Here’s the link, Michael: http://attorneyconnect.legalzoom.com/?cm_mmc=social-_-fb-_-freejoe-_-na

Susanna: I gave some money to an adoption agency toward one boy’s adoption to help him find his forever family. They took the money and worked on finding him a family. After some months, they told me he was already adopted (through another agency) and wanted the money to help another child, so I agreed to let them keep the money and put it toward another adoption. (Since adoption is expensive, children who are harder to place have an easier time getting a family if some of the cost of a family’s adoption is already paid for. In other words, my money was to help a family afford an adoption not pay the agency for any service.) I’ve since found out that the boy wasn’t adopted after all, meaning my money was misdirected because of this falsehood. To be clear, I do not know if the agency was aware they were not being honest with me. During the search for a family, the boy’s file was sent to another agency from which he was supposedly adopted. What are my options for getting my money back so I can help the boy directly or having the agency put an amount equal to my original donation toward the boy I was originally trying to help?

Joe Escalante: You can sue them for breach of contract. If it was an amount small enough to qualify for small claims court this would be simple. If not, you might spend more litigating than you recover. A stern letter from an attorney threatening legal action if they don’t return your funds might be the best way to begin. I would go with another agency next time.

Linda: Is a will the same as a living trust. If not which is better?

Joe Escalante: No. A will just says where stuff goes when you die. Then when you die, the court puts all your property through a probate process to basically announce to all potential creditors that they should “come and have at it.” This process takes time. Only after probate can property be distributed, if it wasn’t used to pay debts.
People place their property in a trust so that it can stay in there when they die, and be “controlled” by whoever they pick when they die. This way the property avoids probate but it could have the same effect as passing it through a will..

However, if the property is held jointly, it would avoid probate anyway. It’s not as simple as it seems.

Andrej: If I have a bubble insurance policy on everything, including personal and real estate investment properties, should I still put my personal residence in a type of trust? My personal residence is also a duplex.

Joe Escalante: I don’t know what a bubble insurance property is, but a trust is valuable for many things, but the thing I am most familiar with is avoiding probate when you die. If you are trying to avoid liability, then whether or not the trust is revocable or irrevocable would be an important issue. For stuff this complicated, you should see a trusts and estate lawyer.

LegalZoom: We can help you find an estate planning attorney, Andrej: http://zoo.mn/LegalPlans

LegalZoom: That’s it for Free Joe Tuesday! Come join us on Friday for more free legal advice from Barely Legal Radio w/ Joe Escalante! http://zoo.mn/FreeJoe

Image by canadianfamiliy on Flickr

Sometimes trademark cases in other countries are just too entertaining not to mention here, and the controversy over Nuckin Futs in Australia certainly fits that description.

When the company that produces Nuckin Futs, a nut-based snack, tried to trademark the name in Australia, the Trade Mark Examiner rejected the application. The phrase was judged to be an “obvious spoonerism” (of “f***ing nuts”) that could not be trademarked because it was scandalous under section 42 of Australia’s Trade Marks Act, which prohibits registrations of such marks (similar to Section 2(a) of the 1946 Lanham Act (also called The Trademark Act) in the United States). (Note the space between “trade” and “mark” that Australia inserts, versus the one-word version used in the US).

But the lawyer for the company argued that the words “f***” and “f***ing” are “now part of the universal discourse of the ordinary Australian” and, therefore, not offensive. (Interesting then that the lawyer chose to make both permutations elliptical, rather than say the words.)

The company’s  filing stated, “We submit that whilst there may be a mere sentimental objection or mere distaste to NUCKIN FUTS, this is not a sufficient ground for rejection of the Trade Mark, particularly since a substantial number of people would not find the words shocking.”

The Examiner apparently credited this and reversed direction, approving the registration on the condition that Nuckin Futs wouldn’t be marketed to children. The company agreed that the product would only be available in adult venues such as pubs and nightclubs.

American readers may recognize the phrase as the catchphrase of the protagonist in the 2003 film Dickie Roberts: Former Child Star, starring David Spade, as an Adobe Flash-based animation by JibJab, or even as a hot sauce popular in the south.

Can you guess which of these holds the trademark for Nuckin’ Futs in the United States?

If you chose the hot sauce, you’re correct! Porky’s Gourmet, Inc. of Gallatin, Tennessee registered this trademark in 2002 with apparently less controversy.

Would you find Nuckin’ Futs offensive?

Sign up for the LegalZoom newsletter!

On Tuesdays and Fridays, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss the last Free Joe? Don’t worry. We’ve got it all right here.

Danette: Can text messages be used as proof of a loan agreement?

Joe Escalante: A text message could be used as “evidence” of something but whether it “proves” the existence would be up to a trier of fact in the courtroom.
The problem with electronic messages is that they often require expensive expert testimony to establish their veracity. In small claims cases, however, a judge might just look at it like “that looks good to me” and accept it.

However, if there is a written agreement about the loan in the first place, it could have language in it excluding any writings or deals outside the contract as written.

Sharonda: Are there different child support standards if u have sole custody vs joint custody? I live in Fl and my ex lives in VA I had sole custody but because he wanted to lower his payments he filed for joint custody and was awarded it, 2 years ago, I thought this would benefit the children, but he never see his kids, and as a result my child support was decreased. What exactly is “joint” custody and can I go back to have the decision reversed seeing that he is not jointly involved in their lives?

Joe Escalante: You need to keep records of how little baby daddy visits. Then do what he did, petition the court for a change in the custody order based on the fact that you and the kid are not benefiting from the scam he pulled, because it is a scam.

Obby: If you loan money to someone and you HAVE a contract in place with payment due date but they can’t pay because they don’t have the funds, will taking them to small claims court do any good? Can a judge make a wage garnishment type of decision?

Joe Escalante: If it qualifies, $7,500 in damages or less, for an individual’s claim, a victory in small claims court will result in a judgment. That judgment can be used quite easily to obtain a wage garnishment.

Denise: where do i go to find out about a title to a car? & how can i take someones name off of the title??

Joe Escalante: If the title says “and / or,” then you can remove the other person yourself without permission at the DMV. If it just says “and” then you need the other party to sign the back of the title over to you. Then you take that to the DMV. If the other person refuses, maybe they like owning the car so they have a right to refuse signing it over to you. If you can’t find them, you could have them declared legally dead. But if that’s too drastic, perhaps a filing for declaratory relief or some other of judgment from a court would be necessary, which is just as drastic in many ways. Anyone out there have any experience with an “unlocatable” person on a title?

Brenda: Grandparent rights in NC ? Daughter has given up custody to the father of the child and paternal grandparents. Now daughter has married father of child and fighting custody with paternal grandparents. Maternal grandparents and extended family are not allowed contact with grandchild for reasons that it will disrupt the child more than it already is. Our concern is that we feel we can provide more family and support for the child but are not allowed a chance to speak in court because both parents and paternal grandparents are ‘protecting’ the child. Is there any way the maternal side of the family can intervene and get our chance to request visitation rights ?

Joe Escalante: According to § 50‑13.5. of the N.C. code, a grandparent can’t initiate a petition for visitation, but if the case reopens for some other reason, I think you can sneak in your two cents at that time. Without the father’s permission, everything is going to be tough. That is probably what the court is talking about when they say this could be disruptive.

Marti Ann: Can I purchase life insurance on someone without the person I am insuring knowing it & can I change a beneficiary on an existing policy without the person’s knowledge?

Joe Escalante: You can’t insure people without their cooperation, but you can change your beneficiaries without the beneficiaries’ knowledge. Also, you sell this story to the Discovery I.D. Channel if it gets interesting.

Tyrone: Hey Joe my question is why would someone get an llc as opossed to a C corp does one have a greater benefit for certain business models than others?

Joe Escalante: Generally, an LLC is easier to administer. There are rules about meetings and minutes, etc. Your tax pro will tell you any differences for you tax-wise.

Edy: Hi, my question is about short sales. My client’s ex-wife owns the condo but they are both on the mortgage. She is trying to short sale it and he needs to fill out papers. If they short sale it (40K under appraised value) will he be liable for the tax on that 40K with the IRS? What about if the lien holder reposesses the condo, would he still be liable for taxes on the “gain” ?

Joe Escalante: This is a question you need to ask your tax professional. It’s not really a legal question. Sorry.

Zahra: Hi. I’m operating my consulting services in one city and would like to offer my services across state lines? Do I need to apply for any foreign legal fees? [DC going into MD, VA, PA, FL, etc}

Joe Escalante: Not that I’m aware of. If you establish an office in any of these places, or contract employees, you might need a business license or to pay local taxes but it is legal to do business outside of your domicile across state lines.

Marvin: I will be fighting a ticket for the “Move Over Law” in Alabama next week. Is it smart to bring in copies of others State’s Photo’s of their Campaigns to alert the public when Alabama has done NOTHING to alert the public of the new law. Other State’s have had large & flashing sign’s etc etc & I have pics from the Web……any advice I did not know it was the law….Signed Dumb***

Joe Escalante: Actually, judges appreciate when you bring in evidence to a trial like that. Your defense is that a reasonable person would not know that the law existed. There’s nothing wrong with some evidence showing that other states agree with you, since they put out so much warning to alert their citizens. If the goal of the law is safety, the state has a duty to encourage compliance.
Otherwise, what is the goal? To bilk unwary citizens of fines and penalties?

Shannon: Q: My ex-husband co-signed an auto loan for our 18 yr old son, who paid $5000 of his own money as down payment. They had a falling out, son moved back with me, forbidden to take the car. Ex recently shipped the car to minor daughter living with me as a gift (I’m listed on shipping invoice), which I disapprove on several levels. Does son have any legal recourse for the down payment? The car sits at my house with no one driving it, as ex says only daughter has permission. Can I legally have it removed from my property?

Joe Escalante: This all depends on who is on the title, not who co-signed. I can’t see any reason why a co-signer could dictate who drives it. However, the title owner could. If your kid has insurance and he’s on the title, let him drive the car. And yes, if your kid paid $5,000. He has that much interest in the car. No one can just take that away because he’s a bad boy or anything like that.

Guy: my wife died 6 years ago , I never probated her will that left everything to me, she was sick with me as her caretaker during those years before – I paid all her bill that were left.- I never found a title to the mobile home that was hers, I now found the purchase order and the bank statement that she had paid for it and the state of penna SAYS THAT A TITLE WAS NOT NEEDED IN 1971 so no record – can I get a title in my name now or must I probate her will to do that.???

Joe Escalante: I don’t know about Pennsylvania’s 1971 rules, but in general, this estate needs to be probated to make any transfers legit. If the property was held jointly it can avoid probate, or if it was held in trust. But you can’t just wait it out and avoid probate. That will get messy for somebody at some point.

Abigail: Q: A rep from a company calls me with telemarketing. I ask them to put me on their “do not call” list and to stop calling me. They continue to call me. Can I sue the company for harassment?

Joe Escalante: Actually, if you can figure out who they are, and if your state has a remedy for this, you can. The Telephone Consumer Protection Act provides certain protections in this regard, and states have other various statutes covering it. You don’t really sue for “harassment” necessarily. You are reporting them for violating a statute and the statute should provide some fines or penalties, some of which would go to the victim.

Stacy: What can a grandmother do to see her g _child here in Fl?

Joe Escalante: Many states have made laws allowing grandparents visitation rights, but courts are not necessarily going along with it. I believe Florida is one of the states where the courts declared these laws unconstitutional. So, unless there is certain and provable harm you can establish before the court that the kid will suffer without your visits, you are out of luck. Sorry.

Ashlea: Ex landlord is going after a Bogus rent on the last month we lived there, and they kept the deposit. They say we owe for things done to the property that they never fixed(reseeding due to a garden).. we drove by there and saw it rented an the garden was still there.

Joe Escalante: This sounds like a case for small claims court. Each state has different rules about deposits and such. Show pictures of the garden. After you file, the landlord might come to his senses and make an offer. Good luck.

LegalZoom: That’s it for Free Joe Friday! Come join us next week for more free legal advice and have a great weekend! Check out Joe’s radio shows too–you can get the full schedule on the Free Joe tab: http://zoo.mn/FreeJoe

This week’s small business news roundup discusses what small business owners can learn from some of the best companies around, types of insurance you should consider, small biz owner confidence for 2012, and dealing with disgruntled customers and changing postal services.

First two other great roundups:

• This Week in Small Business: Destroying the Internet: The New York Times recaps this week’s events related to the Stop Online Piracy Act (SOPA) and discusses the clout of the Small Business Administration and the Consumers Electronics Show as well as the Federal Reserve’s profit and social media case studies — and much more.

• 3 Things You Should Know About Small Business: Jan. 19: The Street talks about B corps, SOPA and Protect IP Act (PIPA), and the “Give Your Small Business the Push It Needs” contest from Staples, which will give “five businesses up to $50,000 each in free TV advertising in their home markets.”

And now the rest:

• What Small Business Can Learn from Fortune’s ‘Best Companies’ List: You don’t have to be in charge of one of Fortune’s “best companies” to runs your like one. CNBC reports on how small business owners can “create a satisfying work environment.”

• 13 Types of Insurance a Small Business Owner Should Have: Forbes shares this comprehensive list of types of insurance you should think about having for your business from general liability and property insurance to data breach and personal umbrella insurance.

• Over 70 Percent of Small Business Owners Predict a Healthier 2012, Attributing an Advisory Board to Success: At Market Watch, a press release by The Alternative Board reports that “[s]eventy one percent of small business owners, specifically those polled who are part of an advisory board, are predicting an increase of up to 10 percent in profits over the next 12 months.”

• How to Turn Fuming Customers Into Lifelong Fans: The Washington Post offers advice to small business owners on how to handle disgruntled clients — hint, it does not involve “screaming and hollering.”

• How Your Small Business Can Use Technology to Replace the Post Office: Business Insider offers great tips on how your business can survive fewer physical post offices and the deletion of next-day first class mail service. These suggestions are still using postal services, of course, just more conveniently for your business.

As always, you can keep up with the latest small business news by following @LegalZoom on Twitter and LegalZoom on Facebook.

What’s new in your small business world this week? And how is 2012 treating your small business so far?

Sign up for the LegalZoom newsletter!

On Tuesdays and Fridays, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss the last Free Joe? Don’t worry. We’ve got it all right here.

Robbyn: Is there a “package deal” for a couple that needs elder estate planning? Which documents would be needed? How is a trust better than a will if they own a residence and an out of state vacation home in addition to their vehicles and personal properties/bank & investment accounts? Estate value less than $500k total

Joe Escalante: A trust for someone in your situation is going to do basically one thing. It’s going to keep your property out of probate so you can pass it directly to your heirs when you check out. That doesn’t help you a ton, but it’s a huge deal to whoever has to handle your estate. Probate sucks. It takes forever and you have to pay lawyers to deal with it.

Robbyn: Thank you for the speedy reply. How do I know which legal documents to get? There are a LOT of different things. Also is there some kind of package plan to get them. That would make it simple enough for me to get the usual ones.

Joe Escalante: My advice is to get a Living Trust with legalzoom. It comes with what is called a pour over will that will cover everything not mentioned in the trust, like stuff purchased after the trust was made, but before you get a chance to modify it.
LZ will also help with the transfer of the property into the trust. That gets complicated, but no need to pay 10 grand to an estate attorney. Check it out. Click the link below, read the stuff, you’ll be an expert helping your friends get their trusts in no time.

LegalZoom: Here you go, Robbyn: http://www.legalzoom.com/living-trusts/living-trusts-overview.html?cm_mmc=social-_-fb-_-freejoe-_-na And check out the Guides and Education tab on our Facebook page. You can download a guide to help with estate planning questions.

CPS: Having been coersed by a Child Protective Case Worker whom instead of investigating my husband’s abuse towards myself and our 6yrs old She dicided to blackmale me into dropping the PTO which would keep our attacker away from us. She deligated to me on his belhalf and I have 4 witnesses of her abuse including a police sargeant, a battered woman’s shelter administrator and my oldest son. What do I do to keep us away from her retaliation, power games and abuse?Please help me

Joe Escalante: Sorry but that’s not the kind of thing I can help you with. The facts are just too sketchy for this kind of format. However, I can give you this advice. If you don’t document something, it didn’t happen. Document everything in writing with follow up letters.

Tamala: I am keeping track of when I call my kids and keeping my emails I send to my soon to be ex husband. What else can I do to show to the judge when we go to court that I am trying to be in their lives and i didn’t adpanted them like he says I did?

Joe Escalante: This is all about getting the judge to like you and believe you. Make sure you are requesting to see them when you are writing those emails. That might help.

Obby: If you just applied for a Corporation License in CA & are registered but realized the business/partnership etc will not work, can you cancel the License without paying any Tax/fees or any other over the top Taxes from the State of CA?

Joe Escalante: The term license is throwing me off. If you mean it’s been filed and you changed your mind, the most you should be on the hook would be for the filing fees and a pro-rated minimum tax which is basically 365 days divided into $800 or some kind of math like that. Talk to your tax pro about the details and call the California secretary of state and ask about your buyer’s remorse on the Corp and see if they’ll refund any fees. I’ve never heard of them doing that, but you can always ask.

Gerry: A friend of mine got arrested back in 2003 because of lies told by her ex-employer. The lies were eventually exposed and the charge dropped before she had to go to court. She got her record expunged, but still has problems getting jobs because a lot of these small-time “background check” companies had downloaded the ORIGINAL arrest back in 2003, but never updated THEIR records to account for the purge. To this day, my friend has trouble finding work because when companies do a background check, they sometimes use one of these companies and then they think she has an arrest record.

What can be done about that? Are these background companies regulated in any way? Don’t they have any responsibility to make sure their records are accurate? What can my friend do so she can get work other than telemarketing or washing dishes?

Joe Escalante: Sounds like a nightmare. The regulation of these companies varies from state to state. It is in their interest to give accurate info of course, but I’m sure it’s tempting to cut corners as well. Without certain and provable damages, there’s no real lawsuit here, but I would at least write an accurate review on these companies on yelp.com so that others are warned about the apparent laziness. If I was going to use one of those companies, I would check out the reviews on yelp. I wouldn’t go by it alone, but I would check it out at least.

Angela: Im wanting get supervise vistiton against my ex, he has a cps case open on him how can i go about getting info from cps about it or do i have to have a lawyer do it?

Joe Escalante: You can file an petition to modify the custody order with the court. If there are issues that will affect the best interest of the child, there are processes to make them come out in court. You can subpoena people and agencies for information. And dead beat baby daddy may also have to testify about this stuff you are trying to discover in court, under oath.

Also, the CPS people are supposed to be protecting your kid. If there’s something that’s potentially harmful that they know about, they could liable if they keep it from you and that act leads to harm to you or the kid. Good luck.

Meredith: I’ve worked for a tax preparation service for 12 years. I missed their certification classes by 4 hrs. after an email for clarification to my Supervisor. I still came up 4 hrs. short. Due to a non-compete clause in my contract, they said I couldn’t work for them nor anyone else preparing taxes for 2 years. This is my livelyhood. Is this enforceable? I’m in Indiana.

Joe Escalante: It is probably not enforceable. You can either wait for them to sue you if you go somewhere else, OR, there’s something called Declaratory Relief. It’s like filing a lawsuit to just figure out if the contract is valid. You are not suing them, you are just petitioning the court for declaratory relief. Also, an Indiana employment attorney could help you figure out how enforceable it is by looking at local case law.

Heather: In family court a judge ordered paternity for my sons father it came back positive but on my sons birth certificate is not the real father just a paper father how do i get the paper father removed and do i have to put the real father on cause all he is a dead beat and wants nothing to do with my son

Joe Escalante: If you were married when the kid was born. He’s the real father, legally. You have to get him to relinquish his paternal rights. That’s not easy. You need to sit down with a family lawyer to sort out your options. This stuff varies by state.

Heather: I’m in Florida was never married to the paper father does this make it easier being we were not married nor i was never married to the real father as i said i was pregnant the real father said to aboard it and left us at the same time hes never seen his son

Joe Escalante: file a petition with the court for termination of his rights, or have him sign them away. He has to be involved, or at least served.

Larue: IF IN NYSTATE,YOU HAVE LIVED WITH SOME ONE FOR 19 YEARS DO YOU HAVE ANY LEGAL RIGHTS TO ANY THING IN PROPERTY THAT IS NOT IN YOUR NAME ?

Joe Escalante: This varies from state to state but in general you have rights similar to what you would have if you were married through the doctrine of implied contract. If you give up a career to support your live in stud, there’s an implied contract that you are not going to get screwed by something unfair like, if he leaves for a younger woman as soon as you pay his last medical school tuition payment. That’s how the famous California Court in Marvin v Marvin rationalized their decision to award a bunch of money to Lee Marvin’s live in girl friend. He was blindsided. But it changed the ground rules far beyond the California border.

LegalZoom: That’s a wrap for Free Joe Tuesday! Joe has a case to work on, so we’re going to let him get out of here for today. He’ll be back on Friday with more free legal advice, so come join us then with your questions. http://zoo.mn/FreeJoe

Lego Bricks by Benjamin Esham on Flickr

In a legal battle over plastic, interconnecting construction blocks, Mega Brands Inc. is asking a federal court in California to invalidate Lego’s trademark.

The most recent incarnation of this ongoing dispute between the two companies arose because of an announcement by U.S. Customs and Border Protection that it is clamping down on toy imports. In an effort to keep its “Mega Bloks” in the United States marketplace, Montreal-based Mega Brands has filed a lawsuit in the U.S. District Court of the Central District of California asking the court to cancel Lego Juris A/S and Lego Group’s 1999 trademark as well as issue an injunction that would stop any adverse action against Mega Brands imports.

The two products are remarkably similar in appearance and, in fact, can be used interchangeably with one another. But don’t tell that to either of them.

To date, Lego’s attempts to enforce its trademark against Mega Brands have failed in several countries including the United States, France, Germany, Italy, and Canada. The European Court of Justice has specifically ruled that the physical components of Legos that allow them to connect with one another cannot be trademarked; Lego’s patents for the design expired more than two decades ago in 1988.

Lego, based in Denmark, has not commented on the lawsuit.

This case is a great example of the intersection between patent and trademark law and how different types of intellectual property rights protect different aspects of a business.

Patents protect designs of inventions, and according to the U.S. Patent & Trademark Office (USPTO), come in three varieties:

1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;

2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and

3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

Trademarks, on the other hand, are used, or intended to be used, to identify the goods of one manufacturer from the goods of others — brand names and logos, essentially.

And as we can see from the Lego/Mega Brand battle, there are real differences in the protections afforded by different forms of intellectual property, as well as differences in how different countries think of those protections.

For further information on patents and trademarks, including information if you need help filing them, see LegalZoom.com.

Sign up for the LegalZoom newsletter!

Copyright symbol by MikBlogs on Flickr

According to one UK judge, the answer is yes, a UK citizen can be extradited to the United States for alleged copyright infringement.

Richard O’Dwyer, 23, ran TVShack, which listed links to locations of files that users could illegally download. United States authorities reportedly shut down TVShack.net in the summer of 2010, but O’Dwyer reopened shop as TVShack.cc; the latter domain was seized in November 2010, and O’Dwyer’s mum says her son shut down the site when the UK police got in touch.

In O’Dwyer’s defense, his lawyer Ben Cooper compared the TVShack site to popular search engines like Yahoo and Google, insisting that O’Dwyer just pointed users to where they were already looking to go. Moreover, Cooper argued, the alleged copyright violations aren’t even against UK law.

Still, District Judge Quentin Purdy ruled that “[t]here are said to be direct consequences of criminal activity by Richard O’Dwyer in the USA albeit by him never leaving the north of England” and that, since UK authorities would not act, a trial in the US was permissible.

Does allowing the extradition of O’Dwyer to the United States on copyright infringement charges sound like a bit of a stretch of the extradition treaty between the US and the UK to you? If so, you’re not alone. Former Liberal Democrat leader Sir Menzies Campbell (UK) contends the treaty was “never intended” for use in such circumstances — especially since O’Dwyer is not alleged to have broken UK law.

There will likely be an appeal of the extradition decision, so we will just have to wait and see whether O’Dwyer will truly become a “guinea pig” for United States copyright law as his lawyer has suggested. This case will also be interesting to watch as the Stop Online Piracy Act (SOPA) has just been shelved by the House Majority Leader Eric Cantor, though the PROTECT IP Act (PIPA) in the Senate lives on.

How do you think copyright and the Internet should intersect? What about across country lines? How would you feel if you were airlifted to Jolly Old England for doing something that’s completely legal here in the US?

Sign up for the LegalZoom newsletter!

On Tuesdays and Fridays, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss the last Free Joe? Don’t worry. We’ve got it all right here.

Raymond: As the owner and founder of an LLC product development company, should I patent my designs/concepts under my personal name & ownership, or under ownership of the company itself?

Joe Escalante: There are two considerations; liability and taxes. For tax reasons, ask this question to your tax pro. For reasons of liability, LLC’s shield you somewhat. I can’t see any reason not to take advantage of this and keep the stuff owned by your LLC.

Bailey: I thought a Warranty deed meant everything was checked out throughly with the mortgage and all and there was no problem with my name being on the deed to the house even though it is not on the mortgage. But I just heard that if the person who owes the mortgage stops paying or anything they can still take the house even with my name on it. So, I really have no security even with a warranty deed, right?

Joe Escalante: A warranty deed makes the claim that the title to the land is clear and available for a complete transfer of all interests in that property. This is in contrast to a quit claim deed which transfers the interest that the grantor may have, but makes no warranty that someone (or something) other than the grantor may come out of the woods and claim some interest. I hope that helps.

Debra: Can a collection agency force you to pay your bill off using a charge card?I pay 50.00 dollars a month and now they won,t take it .they say i have 5000 available on my charge card so they won’t take my fifty and keep calling me.

Joe Escalante: They are just thugs trying to bully you. Nothing they say has the force of law and often is actually against the law. My favorite source for this kind of info comes from Dave Ramsey at daveramsey.com. Check him out.

Mark: MAYBE SOMEONE COULD ANSWER A QUESTION MY WIFE AND I LIVE IN AZ AND CURRENTLY OUR GRAND CHILDREN ARE LIVING WITH US AND THERE MOTHER IS TRYING TO FORCE THE CHILDREN TO LIVE WITH HER AND THEY DO NOT WANT TO LIVE WITH HER DO THE CHILDREN HAVE THE RIGHT TO DECIDE WHERE THEY WANT TO LIVE ?, SHE HAS TOLD THE CHILDREN THAT IF THEY DON’T LIVE WITH HER SHE WILL PUT THEM IN CPS CUSTODY, WE DON’T WANT THIS TO HAPPEN. WE DON’T HAVE THE MONEY FOR A ATTORNEY AS WE ARE BOTH ON SOCIAL SECURITY HOW DO WE PROTECT THE KIDS FROM BEING FORCED TO LIVE WHERE THEY DONT WANT TO ? IS THERE A CHILD ADVOCACY GROUP THAT COULD HELP ? WE HAVE HAD THE KIDS MORE THAN SHE HAS AS SHE HAS NEVER HAD THE KIDS LIVE WITH HER AS THE FATHER HAS CUSTODY AND WE HAVE BEEN TAKING CARE OF THE KIDS, WHERE DO I GO FROM HERE AS SHE HAS FILED FOR SOLE CUSTODY AND SAID WE HAVE NO RIGHTS BECAUSE MY WIFES PARENTS ADOPTED HER SON ISN’T SHE STILL THE BIOLOGICAL GRANDMOTHER ? OH BTW THE BOY’S ARE 11 AND 13
HELP PLEASE WE NEED A ATTORNEY THAT IS WILLING TO FIGHT TO KEEP THE KIDS HAPPY….. THANKS

Joe Escalante: You cannot get legal custody of the kid unless the rights of the biological parents are legally terminated. You can petition the court to terminate these parental rights. It helps if you have an attorney of course but you do have the right to file this petition yourself without an attorney. Cite the following Arizona law. Read it. If it applies to your situation, you can petition the court based on it. http://www.azleg.gov/FormatDocument.asp?inDoc=%2Fars%2F8%2F00533.htm&Title=8&DocType=ARS

Denise: Joe, what is the statue of limitations in PA for unemployment compensation funds still owed ? My business got into some back payroll tax trouble because of my ex back in 2004 thru first quarter of 2007. He was my accountant and he wasn’t paying payroll taxes behind my back during those years. I have been trying to pay them off ever since but have fallen behind. I am a sole proprietor so he is not responsible. I have been making $100 payments every other month since 2/09. I have paid of total of $1,500 so far. They have me owing a total of 2,500 which includes penalties and interest of $1,037.58. It would take me till 4/2013 to pay off if paid timely. I have not made a payment since 2/2011 and by 6/2011 the amount owed without penalties and interest would have been paid off. I have not gotten any calls or letters since my last payment on 2/20/2011? Should I worry?

Joe Escalante: If you are talking about the I.R.S., they will never forget. You’ve got to get them on the phone and start working out a program to deal with it so you don’t get more penalties, interest, or worse.

Danette: What can be done to a person who stashes stolen items on your property?

Joe Escalante: That person could get a strongly worded letter sent to them admonishing their inconsiderate behavior. Or they could end up in jail. However, if you smoke it all, they will cap your ass. My advice is to think of the victims of these thefts. Report it to the police. Then watch your back.

Greg: the person I work for is the contractor is it legal for him 2 1099 me as an hourly employee??? I no longer work for him and I’m trying to get unemployment am I eligible???

Joe Escalante: If you are an independent contractor, I don’t see why he can’t 1099 you. Unemployment benefits are not generally available to the self employed and independent contractors. You would have to be reclassified through a complaint with the Labor Commission. That’s a can of worms you could open, if you think you were really an employee and not an i.c.

Tom: Hi Joe,
I’m a 50/50 partner in an IT/ web design firm with 3 offices in MA. Trademarks and copyrights were approved to the company towards the end of 2011, and we expect many more to be in 2012. We do a lot of computer services, but have been breaking into the app market lately. Right now we’re legally a partnership. I’m wondering if we should keep it that way or file for llc or corporation status. My two main concerns are taxes and liability.

Joe Escalante: The tax reasons should be discussed with your tax pro, but in terms of liability, you are OK as a partnership if you have plenty of insurance. So if you’ve got the insurance part covered, the rest of the decision is up to your tax pro. Good luck.

John: my wife had knee cap surgery, the dr told us it would be 3 days in hospital and then 3 days in rehab, after 5 weeks in rehab( no one seeing her) he took xrays and said the knee cap moved up, he did not wire the knee cap, now she is in a Hard Cast for 6 more weeks, is it time to get an attorney to get this dr. for malpractice?

Joe Escalante: I don’t know if wiring the knee cap is what you are supposed to do in that situation. However, this would be a great conversation to have with an experienced med malpractice attorney. Click below for a head start in finding one fit for a King.

LegalZoom: Here you go, John: http://attorneyconnect.legalzoom.com/?cm_mmc=social-_-fb-_-freejoe-_-na

Deb: I turn my computer over to a private company to get it audited regarding a civil lawsuit till this date I have not gotten it back, court records stated they should have it for only 7 days, now they are claiming that they are going to seize it, without a court order I do not have a lawyer regarding this matter, how do I get it back. Thank you

Joe Escalante: Theoretically, the government cannot seize property from you without due process. The problem is whether the process they are making you go through would be determined by a court as “due.” But, that is your argument, “due process.” If private attorneys are taking it from you and not giving it back, that’s another matter. You would have civil remedies against them for conversion of goods. It’s one of those things that people threaten to sue over. Without an attorney, they probably will not take you seriously. If you really want that stuff, you should get an attorney to at least write a letter demanding it.

Patricia: Hello my husband moved out oct took 90% of our thing and put in storage we were in the middle of a move to new home wont give me access to things and i have a child at home also we installed a new ac/heating system 6000.00 on loan he was not approved for loan agreed to pay together. now will not pay anything. I am collecting unemployment he makes 700.00 a week do i have any rights we have been married 10 years

Joe Escalante: This varies from state to state, but you really need to consult with a divorce attorney, or at least read this book http://www.amazon.com/Nolos-Essential-Divorce-Doskow-Attorney/dp/1413304524. Whether or not you are legally separated now makes a difference. What’s legally separated in your state? You need to find that out and more.

Chris: I am a PA resident looking to set up a LLC for my side business (just myself no employees). I am considering setting up the LLC in Delaware because of the attractive tax laws. Can you please explain what I should be aware of from a legal standpoint if I set up a LLC in a separate state than I reside in?

Joe Escalante: My advice is not to worry about what Delaware offers unless you already make tons of money. You will still have to pay whatever minimum tax is charged to foreign corps in your home state. Delaware only makes a lot of difference for companies with thousands of employees. That is my opinion.

Blair: I own a small advertising agency. Starting a couple of years ago, my business began declining due to the recession. Because I was trying to get new clients, I failed to submit an invoice to a County Fair client in a timely manner. It was almost a year before I realized that I hadn’t invoiced them. When I did, I received a letter from their attorney saying that, because so much time had passed, the county had an ordinance that said they didn’t have to pay me the $8,000 they owed me. Is this legal? What recourse do I have? I’ve already paid the media, printers, etc….and need to get reimbursed…at least for those expenses. HELP!

Joe Escalante: Unless I saw the citation for such a law, I would stick with my gut instinct that counties don’t decide that stuff. It’s state law. Sue them in small claims court for the maximum allowed in your jurisdiction. You wont get it all, but you should get some.

Lacey: I receive Child Support for our daughter. I receive ex. 100.00 child support 100.00 daycare expenses. Now my daughter is on scholarship for day care so all the expenses are covered. she is going to speech theropy twice a week. so i have been using the day care expenses for vehicle maintance and gas and paying the speech bill. Can I get in trouble for not using the 100.00 for daycare like it says its for? I don’t have money to go to court, i am unemployed and all i receive is child support for income.

Joe Escalante: Usually it’s the person who pays the support that complains about this and then he files a petition with the court to change the support order since your expenses have theoretically gone down. If you try to change the order, the court may reduce your amount because they knew you had vehicle maintenance, etc. when the original support order was made and they evidently awarded you nothing for it. Technically you could petition to modify the order to add speech therapy, but you might get dinged if they find out about the reduced day care costs.

Michelle: Beyond a Seller’s Permit, what is required to sell product in California that is made overseas? I have an LLC formed already.

Joe Escalante: That depends. Is it food? Endangered yak antler dust? Panda pelts? Unborn pony skins? There are lots of regulations in California. You might need a business license from your city as well.

Jeff: About two years ago, I submitted a claim to the VA for compensation from service connect injuries. Yesterday I finally received my decision packet. Come to find out that I was denied. I have read other websites suggesting to find a lawyer to represent me in a appeal to the VA. Does LegalZoom help with issues like this?

Joe Escalante: No, however with Attorney Connect, you might be able to find a good attorney specializing in the denial of claims. In other words, those web sites are probably right. Look around the web for a vets rights group but be careful, some of them are just law firms in disguise.

LegalZoom: Here’s the Attorney Connect link, Jeff: http://attorneyconnect.legalzoom.com/?cm_mmc=social-_-fb-_-freejoe-_-na

Layne: My mother in Tennessee is 87. Father is 96 & repeatedly tells me not to get some of her meds, also cancels her Dr appts. He has had several strokes since 1994. He has lost most of his life savings to a con artist that we know, so is afraid of the cost of everything. Is this a legal or criminal matter, as I know my mother is being abused, not being beaten, but being threatened & denied food & meds & medical treatments. I have tried for 8 yrs to get help from police & state human services. Police wont take a report from me, they say I have no standing. Tried to get dad declared incompetent, but his lawyer called me crazy & lots of other things in court & the judge threw case out in August, but said I could re-open case if I get a new atty. Mom did make me her power of atty 2 months ago, since she has been forced to sign powers of atty all over the place, did what dad told her to do, & doesnt know what she has signed or to whom. Can I file charges against dad for being a danger to himself & other family members? Is this criminal or civil issue, as far as dad goes? The con artist issue is embezzlement, but police wont take a report from me, altho I havent tried to report again since I became power of atty, dont know if that fact would now give me “standing” to report it.

Joe Escalante: I think power of attorney would allow you to file on her behalf, but the police will probably still make you go away and stop bothering their secret doughnut rituals. There is something in many states, including Tennessee, Adult Protective Services. That is who you should be talking to about your dad. He may have Munchhausen By Proxy Syndrome or something. Here’s a link for the Tenn. agency you need: http://www.tn.gov/humanserv/adfam/afs_aps.html. I found out about them while watching Hoarders.

LegalZoom: That’s a wrap for Free Joe–thanks for joining us! We’ll be back next week with more free legal advice. Have a great weekend!

This week’s small business news roundup is heavy on social media, blogging, and e-book tips, but there’s also talk of new, free webinars to help your business grow and much more. Here we go!

• This Week in Small Business: For the Win!: The New York Times discusses why we shouldn’t worry about the national debt, an invisible force saving the economy, why small businesses should be on Google Plus, and lots more.

• 6 No-Cost Ways Small Businesses Can Grow, from Ventureneer: SFGate shares news of six classes available through Ventureneer that will teach you “six ways to lower costs, increase sales or make technology work for you.” And yes, they’re free!

• 3 Reasons LinkedIn Makes Sense for Small Business: At Boston.com, Jason Keith discusses how a company page at LinkedIn can help your business.

• Six Ways Small Businesses Can Use Facebook Tabs to Generate Sales, Followers: Fox Business shares the six tabs every business should have on its Facebook page, including a welcome screen, menu tab, coupons, and more.

• Small Business Blogging: 6 Tips to Improve Your Blog in 2012: Who couldn’t improve their small business blog? Some solid advice here, and yes, sharing your content via social media is one of the tips.

• Small Businesses Use E-Books to Build Their Brands: E-books can be great for your business, but an important caveat: “With free content-based giveaways such as white papers and e-books popping up on websites that sell everything from jewelry to overseas junkets, experts say it’s very important for a small business to think carefully about why and how to add e-books and other forms of online content to its marketing mix.” Great info here.

As always, you can keep up with the latest small business news by following @LegalZoom on Twitter and LegalZoom on Facebook.

What’s new in your small business world this week? And how is 2012 treating your small business so far?

Sign up for the LegalZoom newsletter!