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Can I Name My Restaurant or Bar After a Movie? And More Free Legal Advice – Free Joe 12/21/12

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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.

Rob: What are the legal restrictions if any to opening up a business like a a restaurant or bar with the name of a Movie or TV show in NY/NJ. Say if if It’s Goodfellas Pizza, Sopranos Diner or Charlie’s Angels Bar

Joe Escalante: Great Question. It depends on the name and the effort you make to tie it to the film. If it was called “Chain Reaction” yet you had no pictures of Keanu Reeves and Morgan Freeman anywhere, not even in the bathroom above the urinals, you’d be fine. That name is not too protectable. It’s a common phrase. You could even call a restaurant “Avatar” if you stayed away from the blue.
On the other end of the spectrum would be a restaurant called “Spiderman.” Sounds like great food, but that name, even though it’s not trademarked for food services, would not fly because you would be at least guilty of state laws against unfair business practices for leaching off an established name.
People would assume Stan Lee owns it or something and that’s not fair to him.
Charlie’s Angels bar? Could be a problem. Soprano’s Diner? Also a problem. A Christmas Story Cafe? It depends on how you decorate it and if you try to use the original font associated with the film.
My advice, go with the Chain Reaction. But if you name so much as a salad after Reeves, you are asking for trouble.

Roxanne: Ok, Joe…this is mostly hypothetical….suppose I had a will, but that a natural disaster wipes out 2/3 of the population, and there’s nary a lawyer, judge or court in sight. is there any recourse for my heirs, or is it all just dust in the wind? :)

Joe Escalante: In a case like that, the guy holding the conch gets to make his case as to what should happen to all personal property, not just the stuff that used to belong to dead people. There would probably be a substantial redistribution of land and property rights before the “event” would matter little. My best advice is to run around with a club in your hand yelling “I AM The Law!!!!” and and intimidating. Also, if you smell fear on anyone, take them out immediately and start to build a power base for your clan.

Francisco: Joe, as an up-and-coming business, what would be the first trademark that you would apply for in order to get the potential business going?

Joe Escalante: Trademarks identify a business or service with a particular name or logo. They’re not like copyrights where you get a bunch of them. Pick out what you do, or make, and trademark the name of it.

Everett: Does HIPAA and/or loss of consortium allow someone to sue a Dr. for requiring a wife’s signature to have a vasectomy?

Joe Escalante: The Dr. is probably more worried about state laws against cutting people open without their permission than your loss of consortium theories.

Mike: We had a photographer do our wedding. We paid her the full amount and she fufilled her obligation at the wedding. Now that it is time to get prints done she is not responding except to say her computer is down. I also think the hard drive may have been wiped. Is there anuthing we can do?

Joe Escalante: This will all depend on the language in your contract with her. If she breached it, you bring an action for breach of contract. Small claims court might be the best way to go. A summons will get her attention right away.

Harold: Hi, I’m developing an Web application geared to the Internet Marketing Industry. My question for you is: Should I first get a patent or I should get customers?

Joe Escalante: Check into a provisional patent. That will act as a placeholder while you discern whether a full patent is warranted. You can do that on your own. Your real patent needs to involve a patent attorney or you will have problems. Click below.

LegalZoom: Here’s the link, Harold:

Nancy: If you complete a “will” on legalzoom and have it signed and notorized by 5 people – doe it still have a requirement to be notorized in state of

Joe Escalante: You have it witnessed by two people. You don’t have it notarized. I don’t know of any Florida law that requires a notary for a will. In fact, if the notary is the only witness, it would be an invalid will, in my opinion.

Dvine: Hello, I am a graphic designer and I created a logo for someone almost a year ago. I have made several attempt to collect with not a dime received yet. Ive been very patient and recently sent a cease and desist “letter” to stop using it or pay me for my work, but nothing physical because I lack any kind of address. So, my 1st question is: if there is something in writing even in a Facebook message is that a “written” form of agreement which can be seen as a legal binding contract? Also I had a physical meeting with this person and we also discussed the work but no contract was signed. I also informed her that if she cant pay that I will simply revise the unpaid logo for my own use. I sent the Original files in an attachment, which like an email can be retrieved even now in our previous messages. I be;live in this person and their overall purpose/cause and I was operating on a “verbal” and from messages what I considered a “written” agreement and I’d just like to be paid for what Ive done or retain the rights of “use”for the logo. Please tell me what are my legal right to collect and have the “cease and desist” enforced until payment is received? thank you!!!!

Joe Escalante: Your facebook messages would be decent evidence of a contract, or “meeting of the minds” required to enforce your rights. Try small claims court. You need a physical address though. If you don’t have that, no one can help you.

Jesse: Good morning Joe! I’m in need of establishing a 1-man business entity for use on a legal contract with a future client. I’ll be providing a service/product to them and would like to protect my personal assets from any negative fallout should anything like that ever occur. If I understand correctly, an LLC is the way to go for situations like this, even if it is a 1-man show.

Question: Is there any reason I should consider another form of business establishment (sole proprietorship, DBA) instead of LLC?

Joe Escalante: With an LLC you may have a giant minimum tax from your state. In my state it’s $800.00. So if this is the only deal you do in the calendar year, you have a problem. Talk to your tax pro about tax consequences but I can tell you that many people in your situation would just make sure they have good insurance. That can give you the same protection and you can operate as a sole proprietor.

Tyler: Joe, thank you for responding to my question last week about the rental home where the landlord has not returned our $550.00 deposit, and we now live in Colorado, but the home was in Oklahoma. My follow up question to that is, could I somehow give my dad the ability to take them to court on my behalf? He lives in the town it all happened in, and I know he would be totally willing to help if there was a way. Not sure if a Power of Attorney would give him that right (though power of attorney sounds like it would). Please let me know, and thank you for doing free legal questions! :)

Joe Escalante: He would have to have standing to sue them. He can’t sue them on your behalf or he would be acting as an attorney. P.O.A.? I don’t know about that. Ask the court clerk what they allow in that jurisdiction. I would say no if I was the judge.

Linda: I have a Trademark on a toy that will be an official registered mark on Jan.8. I got a phone call from a TOY company asking me to sign a letter not to sue because they have something very similar. They want me to sign the letter and they wont oppose the mark. What to do now?

Joe Escalante: You need to decide if you think their toy is going to hurt you. If it is, you have the right to not sign that, deal with their challenge, and go from there. However, this is going to be an expensive fight if that is an established toy company so you better meet with a trademark attorney in your area quick.

Ming: We are a full service Japanese cuisine and signed a lease contract with the landlord stating that we have exclusive rights for Shabu Shabu. A prior tenant, had shabu shabu on their menu but not as their main item. We have repeatedly asked the landlord of the shopping plaza to enforce the contract and have shabu shabu taken off the other tenant’s menu. We don’t even mind if shabu was changed to hotpot, as long as it isn’t called shabu shabu. It has been over a year and there has been no action. What would be the best way to get our landlord to enforce our contract?

Joe Escalante: That contract you signed might not be valid if it was something that he could not promise. If this came to court, the judge would ask you if you knew about the menu item at the other restaurant. The court might feel that you should have used due diligence to discover it.
It’s probably unreasonable, and maybe even a violation of the other restaurant’s rights to force them to take that off their menu.
Your remedy is probably to sue the landlord for the damages caused to you by having the competing shabu shabu. What is that? It’s too hard to establish in my opinion so you have an uphill battle in court. And the court might rule against you because you should have known, and you should have mentioned that restaurant specifically in your contract, and made sure that he could perform this part of the contract. So my advice is to make a better shabu shabu. That’s the solution that benefits society as a whole. That’s the purpose of contract law. You will have problems trying to enforce a provision that doesn’t really benefit the public, and has the other problems I discussed above.

Mark: i have a family member who supposedly received 3 million dollars after her dad past away. it will be one year in march 2013 when she had told us that she was going to share her money with us. buy us new cars buy parents a house. i feel we aint being told all the truth about where is the money or even if she has the money yet. she has went through lots of loop holes and different banks and so forth. i know she dont have to share the money with us and that i cant force her. but its caused a lot of stress in my family. what can we do to get the truth without causeing to much hassle. but its tearing my family apart. pls help

Joe Escalante: Go to the county where the estate was probated and if there is a will, it will be a public document. Search for the Order of Final Distribution to see what she ended up with. If it was placed in a trust for her benefit, you may never find out what’s in that trust, however.

Megan: If someone is laidoff in nj, collects unemployment, then is called back to work a few months later, but chooses not to go, can their unemployment be revoked?

Joe Escalante: If not, we’re all in trouble.

Stephanie: My husbands a felony. Can I have a firearm in home in a biometric safe thats bolted down; that I only can access through my only fingerprints in Florida?

Joe Escalante: That depends on the terms of his probation, or felony release terms. If there are none, speak with the attorney general’s office.

Tina: The probation warrant officer came to my house(Arizona)with an arrest warrant for my sister, During the whole thing my sister hid in my room and when they entered the house they saw her coming out of my room. they then searched my room and found illegal drugs and arrested my husband for them. They claim that there probable cause to search was because she came out of this room. He told them it was not her room and they didn’t believe him.He did tell them it was his room. Was this an improper search and if not why was she not charged with what they found? If that was there basis for searching my room.This was the only room they searched in the house.

Joe Escalante: You make a decent point. If the p.c. was that she was in there, charge her. However, they always want the big fish and want to stop you from harboring people with illegal drugs. My feeling is that a defense attorney could use this lame p.s. thing to get a favorable outcome for your husband.

Errol: I have a relative in another town who ‘borrowed’ money from me. She admits the ‘loan’ in email and on FB. She came to my home to secure the loan. There was no contract beyond verbal and a hug. Do I have grounds for filing? Would I file in small claims court in her town or in my own where the loan took place? Or should I treat it as a loss and a bad experience? This could end our relationship.

Joe Escalante: Small claims carries with it the problem with collection. If you win, which you may not because the court doesn’t like being the referee for badly handled transactions. Society has no interested in doing that for people. However, if you do win, you only get a judgment. With that, you could put a lien on her house or garnish her wages. It’s all a mess in other words.

Erik: I am in need of a divorce. My wife agrees. We are 8 years separated in two different states (Wife in Michigan, I’m in Georgia. Married in Michigan). We have two daughters and a child support order has given her legal custody but we are to work out visitation between us. Neither one of us has assets or the money to pay an attorney. How do I go about getting this divorce thing done on my own? Thanks.

Joe Escalante: Get this book, read it. Then use Legalzoom’s service. If your divorce is uncontested that’s a very cheap and thorough way to go.

LegalZoom: Here’s the link for our divorce service, Erik:

Yuri: Hey Joe, I was recently let go by an employer who made me an offer to leave a competitor. I was doing great, far ahead of the other new employees, and after only 2 weeks, I was told I had to be let go because they overhired. As I’m walking out their office, I see another new employee being trained. What options do I have, as I can’t collect unemployment because I quit my previous job and I didn’t earn a sufficient amount at that last job to qualify for those benefits?

Joe Escalante: I think you are still eligible for unemployment. I don’t think you have a legal claim against the current employer unless he violated a contract with you.

Clare: Can I will my Sub S Corp’s assets (VERY small company with 3 divisions: beekeeping / janitorial / tiny custom electronic manufacturing ) to my children through Legal Zoom? And can I and/or should I set it up as a Living Trust now?

Joe Escalante: A legalzoom will is like any other valid will, if you own an asset, you can leave it to anyone you want in your will. Consult with a tax pro familiar with your assets to determine if it is worth it to set up a trust.

LegalZoom: That’s a wrap on the last Free Joe of 2012! Joe will be back in 2013 with more free legal advice on Tuesdays and Fridays. Join us then and have a happy New Year!

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December 26th, 2012 at 6:34 am