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2 Companies. 2 States. Same Name. Trademark Conflict? And More Free Legal Advice – Free Joe 12/13/11

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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.

Berneice: i have a question. how do you file your taxes if your husband is disabled, on disability, and resides in a nursing home?

Joe Escalante: I don’t see any problem with this. However, before you file your taxes, you need to get a tax pro and make sure he or she is very familiar with your situation.

Joie: If you share the same company name with a company from a different state, what would happen if that company tries to move into your state? Would there be a legal conflict?

Joe Escalante: It would depend on if the parties have registered their marks with the state and it federal authorities. Only one mark could be federally registered. That mark will control. If neither mark is registered federally, the mark that was used first will control in each territory. They both can be used simultaneously in different states if there is no federal registration on either.

Jason: I’m a drummer that performed for a band that recorded the show and will not give me a copy of the performance. The music played was their music and covers of other bands. I have emails saying they would make a copy but never make time. What can I do? Thanks Jason

Joe Escalante: This sounds like a “promise” to give you something that they weren’t legally obligated to give you. In that case, it’s not really a contract, it’s just an unenforceable promise. If you had made an agreement that a copy of the performance was part of your deal, then we’d have a contract. A contract requires something called “quid pro quo.” That means you have to give something, or give up something of value in exchange for what you are expecting to make a real contract that can be enforceable.

What can you do? Be patient, and maybe figure out something they want from you so you can hold it over them until you get your recording. When you get it, post a link to it so we can all hear it. I’ll bet it rocks.

Jeffrey: Intellectual Property question: Say someone made a 3D model of an item or a character and you have access to a 3D printer; can you 3D print part, or all, or a derivative work, of that 3D model and make a profit from it? Consider this: the individual who has made the 3D model most likely never considered it to be used in the real world (as a physical creation) and was only to be a computerized model.

And example would be a 3D model of a specific dragon being 3D printed into a small physical model or statuette and sold at a art fair.

Joe Escalante: The problem is that the creator of the original dragon owns a copyright in that image. When you make a derivative work from this, legally you cannot exploit it without the permission of the original dragon drawer. On the other hand, how many copyright lawyers are trolling around the art fair scene these days. My recommendation is to get someone to draw you a new dragon. Make it a work for hire. Legalzoom has a business form for that. Then it’s all yours.

LegalZoom: Here’s a link to the Work Made for Hire agreement Joe mentioned: https://www.legalzoom.com/legalforms/work-made-for-hire-agreement.html?cm_mmc=social-_-fb-_-freejoe-_-na

Jeffrey: Well I wasn’t concerned about employee retention of rights to ideas or anything of the sort… I was wondering about purchasing 3D designs/models off of sites and then using said designs in a real world concept be it a 3D print or even a sculpture made by myself.

Joe Escalante: Then your derivative rights would be determined by the terms of your purchase. If they are not supplying terms, you should write the terms to allow you to do what you are planning without paying any further royalties or granting any rights to your derivative work.

Rebecca: I own an LLC. Since my husband is now 66 there is no limit on how much outside money he can make (so that they don’t take away any s.s.). How hard will it be to get my business put in both of our names? I am 13 years younger than him but I don’t want him to go through a hassle if something should happen to me first. Thank you for any info.

Joe Escalante: You can sell some shares to your husband. You can basically do anything that is approved by the managers of the LLC. If you are the only manager, you can authorize practically anything. Check with the secretary of state to complete the process. And let your tax pro know what you’re up to. This is really a tax question.

Mutebe: i have a college who is a mechanic. a client brought to him a vehicle to repair and he left behind his keys. however in the process of the mechanics duties, the car keys were misplaced but the exclusion close on the receipt shields him from liability. does the car owner have any remedy for his loss

Joe Escalante: The thing the car owner signed is called a “contract of adhesion.” It’s only enforceable to the extent it is fair. If it was negligence that caused the keys to be lost, it doesn’t matter what the thing that was signed says, a court would likely find the mechanic liable for the damages caused by his negligence.
There is another legal principle at work here. That is, bailment, and the duty of care. When you give your car to a mechanic (bailee), they have a pretty high duty of care. Losing the keys is a breach of that required level of care in this kind of a bailment.

Heather: Hello. I am a Behavioral health counselor in private practice. Is it a good idea to make the business an LLC?

Joe Escalante: There are many good reasons to do this, but it basically comes down to a tax question. You should have a tax pro analyze your situation. Legally, you can limit your personal liability with an LLC, but you can also do this with insurance.

Ricardo: How can an ex- felon sue a business for discrimination dealing with a back ground check that is clean for the past ten years but there are some offenses from 96 that still haunt my job opportunities. The law prohibits them from going past 7 years. RIGHT?

Joe Escalante: If you are talking about the Fair Credit Reporting Act, that 7 year limitation only applies to arrests, not convictions. Convictions are fair game forever.

Kenny: if i don’t pay my rent will that terminate my one year lease and not be an issue in court. (if i don’t pay because i move out) will i get my deposit back.

Joe Escalante: the rent will be paid for the entire term of the lease, whether you move out or not. So you are on the hook for the remainder of the money owed on the lease for the whole year. However, the landlord has the duty to mitigate. They must try to find someone else to rent the place and make you pay only the amount they actually lost.

Adam: Does a person need a lawyer in pennsylvania to expunge a juvenile record?

Joe Escalante: That’s hard to do. You should at least consult with a good criminal law attorney.

LegalZoom: We can help you find a lawyer, Adam: https://attorneyconnect.legalzoom.com/?cm_mmc=social-_-fb-_-freejoe-_-na

Tian: Hi Joe, I’ve had a few situations from Roommates on Craigslist who make a sublet agreement for their apartment, make me pay the security deposit to them and then not issue it back to me when I move out. How do I get my money back without spending all of it on a lawyer?

Joe Escalante: This sounds like a good occasion to take advantage of small claims court. You don’t need a lawyer for this. In fact, neither party can be represented by a lawyer. You just collect your evidence that you are owed money, bring it to the trial and explain it to the judge. He will decide that day.

John: How important is and estate plan in NJ?

Joe Escalante: An estate plan is important in every state. The idea is to avoid probate. It is a nightmare. A good estate plan will put assets in a trust, or make bank accounts and other financial instruments payable upon death.

Kayla: How can you go about getting your child support that is owed to you when you were a kid and it was being sent to you grandmother who is now passed away and the child support card is expired in tennessee

Joe Escalante: If your grandmother stole money from you, you would sue her estate. If the estate has been finalized, you are out of luck. This is what probate is for, to allow all creditors the opportunity to come forward and make their claims.

Suemay: Hi, if a person starts a business just to get the ball rolling and use their home address as a business address until they found a location could that effect their first time home buyers credit even though the two years before Dec 31st? All cost is just the start up cost business will officially start in January 2012.

Joe Escalante: It’s a tax question that you need to go over with your tax pro. Sorry.

Meri Anne: for a dui charge that is in court, all toxic reports have been redone, and there was a video being taken of the whole arrest from sobority tests …. 1 sargent, 1 officer,1 female officer & a rookie being trained!! maybe even 1st dui suspect. anyway was never read miranda rights, was taken down to police station, gave urine, sat for about 1 hour, given a ticket to appear in court. 1 1/2mo.later & was released!!. never took CDL away,nor they didnt impound vehicle. so i walk out of p.d. and walk to my vehicle,& drove home! could this case be no good,because i was never read my rights?

Joe Escalante: Miranda rights are tricky. They prevent some evidence from being admitted to trial. However, there are many other things that they could convict you with. For example, when you signed stuff to get a driver’s license, you agreed to be tested for alcohol in your blood if you were ever pulled over for d.u.i. So that evidence could theoretically be used with or without the reading of Miranda warnings because you agreed to it a long time ago when supposedly you were quite sober.

Statements made prior to any Miranda warning might be excluded, but it’s the blood tests that will get you. You could talk to a good criminal law attorney in your area and see if they can do anything with this. Click below:

LegalZoom: Here’s a link to help you find an attorney, Meri Anne: https://attorneyconnect.legalzoom.com/?cm_mmc=social-_-fb-_-freejoe-_-na

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December 15th, 2011 at 5:49 am