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Trademark Ownership, Collecting Damages from Squatters and More – Free Joe Friday 3/18/11

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

Kellie: Hi Joe – Happy Friday! Any information you can offer with the following trademark question would be greatly appreciated: If I have been using a business name (services, consulting and planning/development of products for future production/distribution) with the TM symbol since 2003 and I just found out that someone registered the mark… with the US…PTO in 2008 for three specific “goods”, what is my best course of action as I continue to grow and develop my tradename and business, including both services and products? Do I have rights to ask this person to cease operations, as well as the production and distribution of products? Who actually has rights to the words and punctuation used in my business name (registered with the state of Colorado in 2003 and all legal documents to prove registration exist)? I appreciate your input, information and advice!

Joe Escalante: Trademark law is governed by usage. If you are using the mark, and someone registers it later, you can challenge their registration and if you can prove that you were using it first, you will win. They will have to cease. But you have to have been using it in interstate commerce to qualify for a federal registration. I would register asap in the category of your product and if the competing registration is in the same category I would challenge it. Use LegalZoom for the registration and it will be easier. You can talk to the trademark examiners on the phone. they are very helpful.

Loren: Hi Joe, hopefully you remember me from Entravision Radio. Anyway, have a question about a Traffic Ticket. I got a ticket for an alleged stop sign roll. I have taken pictures and video taped a re-enactment to present as evidence. My question is if i go to trial and lose, can I still request traffic school in court to the judge?

Joe Escalante: Hi Loren. Good to hear from you. A re-enactment will not establish much in the way of proof, but it may illustrate your defense theory in a different way. You are there to prove that you did stop before the line, wait, then proceed. A re-enactment cannot prove that one way or another. However, sounds like a good time.

Loren: So will I be able to request traffic school from the judge in the event that I lose the case?

Joe Escalante: With respect to traffic school. Most judges in L.A. Superior court will only let you have it if you change your plea before the trial. The concept is that you have a opportunity to get this privilege of traffic school in exchange for reliev…ing the court of the burden of a trial. If you go through the trial, it’s too late to get the bonus of traffic school. However, if you re-enactment is Oscar worthy, you might get some sympathy from the judge and get traffic school anyway. The judge does have the power to grant it, if you are eligible.

Hattie: As an incorporated, tax-exempt non-profit organization, can you charge your clients for services and products? Would your clients purchases or fees be tax-exempt? For example, if you are a member of a non-profit organization, would your membership fee be tax-exempt on your federal income tax? Thank you, I appreciate your time!

Joe Escalante: Hi Hattie. I don’t get involved in tax questions, but I can tell you that it is possible for a non-profit organization to charge for many things. The non-profit moniker really refers to what you do with the profits from the sales. If you distribute them to shareholders, that’s not a non-profit. If you keep those profits in the corp for the benefit of the purpose of the corp only, you may still be a non-profit. but check with your tax lady.

Biehler-Poe Enterprises, llc: OK… Here’s a, in my opinion, business ethics question:

I invite a contractor in to provide me a quote on a home improvement project. He comes, takes measurements, discusses my ideas and plans, etc. He then leaves, saying… “I’ll have a proposal and quote back to you in the next week”. -All is fine. I like the guy, seems personable, …capable, etc. etc.

Week later: He contacts me; setting an appointment to review his proposal and quote that he’ll bring along… We do just that and discuss relevant enhancements, additional pricing, etc. I like what I see and hear; but decide to ask him for a day-or-two to “think about it”. He says, “of course!”…

Next day: I contact my potential contractor and ask a few questions related to the project. Before I say, “yes or no”, he says… “Do you know what Mr.?!~ You could really help me out if you’d be interested” “I’d be willing to bring down the estimate and overall price to ‘x’ if you’d consider and do the following~”

(Potential contractor again:) “If you would contact two or three other local and/or regional competitors of mine, get a quote from them and then let me know exactly how I compare” I’d really appreciate it!

Quandary: Is that A.) Ethical B.) Reasonable C.) “Out of line” and bordering on unethical D.) Acceptable E.) “other” -Whatty’a you think

Joe Escalante: This would be perfectly fine unless the potential contractor was doing this to create a price fixing scheme. It’s against anti-trust laws to meet with competitors and fix pricing. I suppose your potential contractor’s actions could be interpreted as a way for this guy to get the info he needs without an organized cabal. Very interesting. E. other

Sean: Hi Joe i am designing a collectible card game. What Do I need to do to protect it? Trademarks, copyrights?

Joe Escalante: Sports or non sports? or like pokemon? In anycase, if you are designing original cards, copyright all the original images. You should also make sure your artists are working under “work for hire” agreements so your company can control all the images. You don’t have to © each des…ign individually, you can do them as a group to save a ton of money and work.

Your company can benefit from trademark protection. This will prevent other companies from creating the same product with the same or similar name.

Remember, just an idea for a game is not protectable through copyright law. If the game is elaborate, it could qualify for patent protection. LegalZoom can help you with all this stuff. Good luck Sean!!

Kenneth: Hi Joe,

I’m expanding on something I asked you last week. In my divorce mediation agreement, there was a 2nd mortgage on our residence which my ex was to refinance and have me taken out. That was never done. The 2nd has since charged off the debt but has liened the property. I am pursuing a contempt judgment on the mediation agreement…. It had a “hold harmless” clause for the debt. Can I sue to have her pay this debt since it affected my credit? Or do you think it will be included in the contempt judgment that she rectify this situation? Thanks in advance.

Joe Escalante: I gotta be honest Kenneth, this goes beyond what I can do here on Facebook. I’d have to study the documents. Hopefully you have an attorney that is doing this for you. Thanks.

Michael: Hi Joe…

Are the wills done on LegalZoom transfer from state to state ?

Joe Escalante: According to Legalzoom’s experts, and I agree:

“If a last will was validly made while you were living in another state, it is probably valid in your new state. However, if your last will was not “self-proved,” it may not be accepted by cert…ain courts until the witnesses sign an oath swearing that they saw you sign your last will. Because of the expense involved in finding your witnesses, it is probably best to rewrite your last will after moving to another state.

“Most states allow a last will to be self-proved. The LegalZoom Last Will and Testament includes a self-proving affidavit in states where that is permitted. This means that if you move to another state, your last will would likely be valid without the expense of tracking down witnesses.”

Diana: Hi Joe, I am the POA for my father who has dementia. Can I, as his POA, select an alternate person to be his POA in the event something were to happen to me? Or would that person have to petition the court for guadianship? We live in Ohio. Thanks!

Joe Escalante: I’m not exactly sure how the courts would do this in Ohio, but in general, any limits on the POA have to be specified by the original grantor. In your case, I can’t see any harm in appointing a successor if you are not limited in the scope of the original POA from doing so. If it gets challenged, the court can use your wishes as evidence along with other testimony from anyone challenging it.

Reginald: Is it difficult or expensive to dissolve a corporation in GA? This question is for Free Joe.

Joe Escalante: It’s not difficult nor expensive in California and Legalzoom has documents for corporate dissolutions in all 50 states so check out the link below. It’s a very common procedure.

LegalZoom: Here’s the link, Reginald: http://www.legalzoom.com/additional-business-services/articles-of-dissolution-corporation-llc.html

Laraleigh Forester: I want to start a non-profit organization to raise money for children affected by autism to purchase service animals. We would like to hold a benefit this fall. What is the best way to start? Do I form the non-profit first or do I get it off the ground first and then start the non-profit? Thanks!!!

Joe Escalante:

You can raise funds for any cause at any time, usually. However, if you want your potential donors to get a tax deduction from their donations you should get the non-profit organization sorted before hand. Otherwise, they may not be able to… deduct them and it will be super sketchy for you to tell them that the donations are tax deductible.

However, if you think people will contribute anyway, just be upfront and get started. When you get your official non-profit status, that can apply to donations after that occurs.

Also, a good place to start is with the bank you intend to use. What do they require to open a bank account for this kind of activity.

Christopher: Joe – I’ve recently had some trouble with non-paying tenants. We sent them the “Notice to Pay Rent or Quit” that came in our LegalZoom package, giving them 10 days. We think they’ve already moved out, but the 10-day notice doesn’t expire for a few more days. If we have reason to believe they’ve vacated, can we enter the unit or should we wait until after the notice expires?`

Joe Escalante: Your tenant’s rights to keep you out are probably governed by the lease agreement. Read what that says. Most of my leases said they could enter under an emergency if they did some sort of best efforts to contact me. Like what if a pipe was burst in there? Check the language in the lease.

Lesia: In Feb 2009 my husband was the only person laid-off, on the day he gave them the date of his upcoming open heart surgery. They knew 2 wks before that he was going to have this. My husband was at high risk of heart attack for those 2 wks. He was very close to having one on the day they laid him off. Is there anything we can do? Can we prove that he was laid off because of his heart surgery?

Joe Escalante: I would contact the labor board in your state. This sounds pretty serious. I would also advise a consultation with an employment attorney. If you need a referral, check the link that will appear below.

LegalZoom: Here you go, Lesia: http://attorneyconnect.legalzoom.com/

Jeanette: What is this difference between resaler who doesn’t pay or charge sales tax and someone who does charge sales tax?

Joe Escalante: Let me see if I got your question right.
Retailers have the option of paying the tax for you and not adding it onto the price of goods. That’s kind of a “tax included” thing. But if there is a state sales tax, they have to pay it one way or …another.

However, if you are a reseller, then the state would theoretically collect the tax from the final consumer, and not on every transaction down the chain, so that’s why resellers don’t pay taxes on things they buy to resell, but eventually someone has to. Does that answer the question?

Paula: I am now on soc sec. disability due to a neurologic illness. I am only 56 yrs. old. My question: Am I able to collect any of my “retirement” pay from the different jobs I held for long periods of time. One place it is $240.00 and some change per month but that was to be paid at my normal retirement age. Other places I have a 401K and a 403B. Just wondering if I am entitled to a payout early now that I am disabled. Thanks

Joe Escalante: Wow Paula. I would really have to look at the terms of the plans to answer that one. Call your representatives from each plan. It’s their job to tell you this kind of stuff.

Chamanda: Questions for free Joe Friday…our neighbor is having trouble with her HOA…long story short they were sending the HOA bill to her daughter in another state, when she finally got the overdue bills she reached out to them many times but did not get a call back. Now they have 3 (I believe) leans on their home and are facing attorney fees…is this 100% legal? Thanks for the advice!!

Joe Escalante: If the HOA reasonably believed that the address they had was correct, I think they are acting within the law. If it says in the HOA agreement that they can seek attorney fees for non payment, then they can probably due so without problems. …

If you believe that they were purposely avoiding the mother to get her to not pay the fees so they could put liens on her property and sue her for attorney fees, etc. you would need some really good proof. Testimony that “I called them many times but did not get a call back” would not be enough I’m afraid.

Robin: Question for Joe – 2 people are planning to marry and are getting a prenup. The groom’s family is wealthy. Right before the wedding the groom’s grandfather passes away and is leaving the groom a substantial inheritance. The groom says the wedding must be postponed until the estate is settled because of the prenup. Is this true? Can a provision be placed in the prenup regarding the inheritance prior to settlement?

Joe Escalante: I don’t follow the groom’s logic exactly. Off hand I can’t see a problem with modifying the pre-nup to allow the bride to contract out of eligibility to receive any of this specific inheritance. However, she should check with a family law attorney in her state to be sure. I see red flags. none of my business, but I see them.

Becki: If your mom suddenly dies on the day of your meeting with the crediitors is the bankruptcy trustie entitled to your life ins money you will be getting?

Joe Escalante: If you are declaring bankruptcy, and you are the beneficiary of her life insurance, I can’t see any reason for your new assets not to be included in the money the trustee uses to pay your creditors because the new money is just that, assets. However, it’s a tricky one, so you really need to talk to a BK lawyer in your state to be sure. Sorry about your loss.

Caryn: Hello Joe, (I tried this last Friday…) My husband and I have an LLC where we share 50/50 ownership. We file our personal income taxes from our dayjobs jointly; is it okay to file out business taxes as a single owner or do we have to keep ourselves separate since, technically it is owned by both of us. One is just more c…omplicated… and of course I don’t want to get in trouble with the IRS…
Thanks in advance for your time.

Joe Escalante: Thanks Caryn. This is a pure tax question that I cannot answer. You need to talk to a tax professional.

Chris: Hey Joe. Thanks for taking time to answer questions. My neighbor has a tree that is on the other side of our fence. It is dying and dropping very large limbs in our yard. I had an arborist come look at it and write a report that it is dying and needs to come down. I am afraid of a limb coming down on our son or one of our dogs when they are in the backyard. Is there a way I can make them take the tree down? Thanks

Joe Escalante: Yes. but you might have to take them to court. I’m assuming you tried all the kind neighborly stuff first. If they refuse to act, you can take them to court to force them to do it. It’s not pretty but it can be done. If they don’t do it after a court order, they are in contempt of court and can be thrown in jail. Fun times.

Ann: I have a judgement from the courts awarding me over $4,000 in damages against a squatter who had to be evicted. How do I collect and how can I garnish his wages? Is it a process that I can do myself?

Joe Escalante: In my area, the Marshals handle this. Generally, you first obtain a Writ of Execution or writ of Attachment or Writ of Garnishment from the court first. Then you take that document to the county clerk’s office and fill out the proper form f…or your state. Then visit the Marshall, or the sheriff for help in seizing assets. Visit the bank where the squatter keeps all his money too, and his employer for a wage garnishment. But the Marshall will help you with this stuff so you don’t get beat up.
Nolo Press’ website has some good info on collecting judgments. Check them out too, and good luck!

Rich: Hi Joe…Is a collection attorney a good way to go to resolve bad debt?

Joe Escalante: Yes, if it is a lot. It’s worth a consultation at least. I have no experience with them, and frankly have never met one, but it’s worth a meetng.

Rich: @Joe: Good morning! Here’s a true story. In PA, adult citizens are allowed to carry a handgun on their person (e.g. in a holster on their hip) without a “permit”, as long as it’s “exposed.” This is known as “open carry” across the country. It’s a very uncommon practice in most places though.

If a person (or group of persons) are in a… public restaurant with those handguns, legally exposed (with the restaurant manager’s permission as well) and just enjoying dinner with their spouses, children, and other handgun carrying friends peacefully, can they legally be charged or arrested for anything (e.g. disorderly conduct) if a couple other patrons people called “911″ on them – just because they didn’t know any better? And a big group of police officers show up, causing a scene for the other patrons, arresting a few of those individuals for “disorderly conduct.”

If they later released those individuals from arrest, after being finger printed (for the first time, ever) and put into the computer system… Is that dropped charge “removed” (along with the fingerprint data) or does that person have to g…o through the expungement procedure to get that and the fingerprint data erased?

Please help me understand this better. Thanks!

Joe Escalante: I don’t know how to get fingerprint data erased. The state loves to collect that stuff and I can’t see them giving it up easily. You might want to work out a trade. You don’t sue for wrongful arrest if they delete your fingerprint info. Tha…t would take a lawyer to negotiate that but there are lawyers that specialize in CCW and open carry law.

So the answer is that legally, you cannot be arrested for acting within the law, but “disorderly conduct” is so subjective, it’s a tough thing to prevent if the cop really wants to haul you in.

I’m all for open carry and concealed carry, but open carry will probably always lead to this kind of panic, sadly.

Matt: Joe,
I need a non disclosure agreement. How can I obtain one and is there a way to do it for free?

Thanks

Joe Escalante: Although I have heard of many free NDA agreements on line, I would rather tell you about the solid one available from legalzoom.com. Better safe than sorry.

LegalZoom: Hi Matt. You can find several NDAs on our forms page: http://www.legalzoom.com/legalforms/home.html

Konstantin:Is it legal to have music in your video or recording from background noise(radio, TV, etc..)? Or every time I make a video or recording I have to turn of my radio, TV and go to my neighbors and ask them to turn of their music, otherwise my video or recording can be removed for playing copyrighted music on the background?

Joe Escalante: This is an excellent question for my radio show, which is on right now on http://www.indie1031.com/. This is all we talk about. Or the sunday night show on KTLK from 5 to 7 PM PST. go to http://www.barelylegalradio.com/ for more info. In fact,email this question to info@barelylegalradiocom and we’ll set you up with a long involved answer. because the short answer is, it depends….. the advice on Barely Legal Radio w/ Joe Escalante is always free Konstantin.

Jeanne: Hi Joe! :-) I was told by a school district that I would be teaching another grade in which I’ve never taught. Taught first grade for 14 years. After that said to me, the superintendent and principal said that I really should retire, because they thought that I most likely would not make it throught the year~ I would get sick. Can they say that? Is that legal? I have a pre exsisting condition, and show up on the job with good evals. I’ve been absent two days each year for the past five years. Thanks!

Joe Escalante: If they are expressing true concern for your health, and the welfare of the children, then I would call it protected speech. However, your union might call it something else, check with them.

Get more info and all the details and fine print about Free Joe Fridays. And join us on Facebook next Friday at 10am PT for more Free Joe!

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March 22nd, 2011 at 7:34 am