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Can I Apply for an Abandoned Trademark? And More Free Legal Advice – Free Joe 5/8/12

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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.

Madison: My business name Arrow Travel is not trademarked however an application was abandoned a few years back by another business that still operates under that name. If
I applied for the trademark and got it since the old one was abandoned, would the old company be able to take the trademark from me?

Joe Escalante: Great question. Trademark protection is based more on use, rather than registration so you could have problems if they were using the name first, and continually. However, I would do it. With the registration, and a consistent stretch of time using the name without any “confusion in the marketplace,” which is really all you need to avoid, you would be in good shape if they eventually came after you.

Tamala: What would happen if I let my childern live with my ex once the divorce goes through? What would happen if I give up my rights? Would I ever see my childern again if I give up my rights?

Joe Escalante: There are several levels of “giving up rights.” Sole custody gives the custodial parent the kids 24/7, and a court order may or may not provide ex with visitation rights, supervised or unsupervised. On the other end of the spectrum, one could terminate their parental rights by written agreement (or by bad behavior, Courty Love style). If you did that, the creepy neighbor across the street that the kids call “Captain Open-Robe” would have as much rights to see your kids as you do.
In the middle, you have things like “joint custody” “shared custody,” and “no physical custody, but visitation rights.” It all depends on the language of the Support and Custody Order. You have the right to make your case to the court for any kind of custody arrangement you feel is in the best interest of the child. Good luck.

TS: Hi, I own a LLC in South Carolina. I am currently in the “brainstorming” phase of starting another LLC. Can the LLC I already own be the parent company to the second LLC?

Joe Escalante: Yes, generally, but talk to your tax lady. It might not be the best way to go. Normally people use a new D.B.A. that is owned by the LLC to start a new business.

Norma: If I have a different purpose for a product that is manufactured already (in China) and they make it for anyone who orders, do I or should I patent my item? Only the purpose is going to be different.

Joe Escalante: You cannot patent something that already exists. To qualify for patent protection, you invention must be novel and not obvious. It cannot even be described in someone’s prior art, let alone be mass produced by underpaid factory workers.

Geri: Aren’t the forms, say for a Will….the same as you would pay an attorney the big bucks for?

Joe Escalante: Perhaps they are. Perhaps you hire a lawyer and he buys a form and pretends he wrote it. Generally, you pay the attorney for advice in filling out the form, and/or creating a fancier document so that when you die, people think you are a big spender.
You pay legalzoom for sweet ass customer service and document preparation assistance, but no legal advice.


Joe Escalante: Please refine this question, it sounds like a good cause, but I’m not sure exactly what you’re asking. In the mean time check out my friends at


Joe Escalante: Some states recognize grand parent rights, some don’t. If yours does, petition the court for visitation rights the same way you would if your were the direct parent.

Desirai: I have a legit question for Joe Escalante. What kind of loopholes are available to the impoverished that we can legally take advantage of to pay less taxes and get back millions, just like our politicians?

Joe Escalante: First, make millions, then declare yourself a corporation. If it is a legit corporation, you only pay taxes on what’s left over after you made all your deductions like your fancy gas guzzling car and the guzzled gas (if these were legitimate expenses).
If they aren’t legit deductions, the IRS throws your rich butt in jail. So be careful what you wish for. I know that’s not much, but I can offer you the consolation that there are many former millionaires in prison.
The ones that aren’t, may have created a job that you have or someone that buys you stuff has. Again, I know it’s not much.

Nala: Ok I have a question. How long does a wife have to change her last name in the state of Arizona if she would like to finally take her husbands last name. Have been married for 8 months now and I didn’t take his last name and kept mine.Now I would like to go ahead and take it cause now well I kinda hate my last name.

Joe Escalante: You have until 5 PM today. If you don’t make it, you also have tomorrow, and the next day. Because you can change your name whenever you want if it is for a lawful purpose (e.g., avoiding valid debts). You’re in luck, I have a link:

LegalZoom: Here’s the link, Nala:

Carla: I am a repossession agent recently I was hit by the car of a debtor as he came out of his garage…he was backing up then put car in drive and hit me I am injured had to be taken by ambulance to the hospital. I was not there to recover the car just his business home based computers. Can I make a claim with his homeowners insurance. Thanks!

Joe Escalante: You can ask the debtor to file a claim, because usually only he can, not you. He will refuse and say he’s not liable.
Then you get a personal injury attorney, that pleasant person will file a lawsuit against the debtor. If you win, you will get a judgment. The judgment may or may not be paid by his insurance depending on what they cover, but the first step is to file a suit, or threaten to file and get a settlement.

LegalZoom: Here’s a link for Attorney Connect, Carla. You can use it to find an attorney:

Chrissy: I have a question for Joe. I am going to court tomorrow to finalize my divorce. And the attorney’s office called to confirm our court date and time. Then she proceeds to ask if I would like to change my name back to my maiden name. Well, I didn’t want to because I don’t want to be alienate from my kids. BUT, if I wanted to. Would I be able to change my last name completely? Like to one that has no association with my past? OR can I be just “Chrissy” with no last name? I really hate the thought of being “owned” or “branded” by a man’s name. So, out of curiosity can I legally change my name to a name of my choice?

Joe Escalante: You can change it to whatever you want, unless the court discovers you are trying to pull a scam of some sort with your new name. (see link below for more on this).
I like the whole single name of “Chrissy” idea. See if the court will go for it. However, you might be mistake for this lady too much and want to change it back.

LegalZoom: Here’s that link for name change info, Chrissy:

Chris: after a marriage in Philippines, how long typically does it take for paperwork (I-130 petition) to be completed and approved? When can they come to US?

Joe Escalante: I don’t think I could give you an accurate number. I hear anything from 5 months to several years depending on preference category, country and other factors.

Michael: Question: If one is being falsely billed for a utility such as water and the company is fully aware of the fraudulent nature of the billing and the scam is being actuated by sending the bills through the United States Postal Service, can the offending party be reported as conducting Mail Fraud? If so, what is the mechanism for reporting Mail Fraud?

Joe Escalante: You can report mail fraud to the Postal Inspector. You would have to prove that they intended to defraud you and that they are not just incompetent. It’s a long shot, but here’s the form.

Lori: How can a no fault divorce state award spousal maintainence on a 13 month marriage legally? The state is Washington?????

Joe Escalante: I would have to know the facts, but you can always appeal. But if two judges agree, you’re screwed.

Trinita: Hello! How do I register a charity drive name if I don’t have an organization to place it under?

Joe Escalante: It’s very complicated so the most efficient way is to find an existing tax exempt charity and use their entity. You can pay them a commission for their charity. Everybody wins, except Legalzoom. ooops. Consult your tax lady to make sure this is legit, but if done correctly, it can save you a lot of time and money.

Jennifer: Question: in my will can I leave custody of my minor child to whom I feel can give her the best upbringing (I have joint custody now however he hasn’t seen or taken part in her life since 2009 nor has she ever lived with him) or will she go to her abusive father?

Joe Escalante: You should try to get sole custody first. If your husband outlives you, he’s getting full custody. Actually you would need to terminate his parental rights to keep the kid from going to him after you die.

Jennifer: Does it matter if we were never married.

Joe Escalante: No. He’s still the father.

LegalZoom: Free legal advice Friday morning, 10am PT/1pm ET! Joe’s gone for today, but he’ll be back on Friday:

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May 10th, 2012 at 5:32 am