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Do Copyright and Trademark Provide the Same Protection? And More Free Legal Advice – Free Joe 1/27/12

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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.

Shantay: Gm Joe. Is trademarking the same as copyrighting your logo, and if you go through your state to do so, will your logo be protected nationally or internationally?

Joe Escalante: State trademark and copyright would not protect you nationally. Always register with the U.S. agencies. And, these two are not the same. Let me explain the difference to you in a more intimate setting Shantay: http://www.youtube.com/watch?v=yjMJMx9AN1U

Sherry: HI, MY QUESTION IS ABOUT A FRAUD. I BOUGHT A LAPTOP AND WAS TOLD IT WAS BRAND NEW FROM A COMPANY. I HAVE PRINTED RECEITS STATING THAT IT IS NEW. BUT THEY DIDN’T ERASE THE HARD DRIVE AND I HAVE FOUND OTHER PEOPLES INFO AND I HAD CALLED DELL, (WHO DIDN’T SELL IT TO ME) TO KEEP THIS STRAIGHT. IT’S NOT DELL. OK WELL THE MAN I SPOKE TO AT DELL HAD TOLD ME THAT MY SOFTWEAR IS NOT COVERED UNDER A WARRANTY, BUT WHY NOT. SO WHAT ARE THE RULES/LAWS PERTAINING TO FRAUD.

Joe Escalante: There is an implied warranty in all transactions that you are getting what you bargained for. They breached this. You can either get your money back, or demand they perform as promised / implied. Or you have to take them to small claims court. That’s pretty ghetto.

Patricia: Hi, I know I’m early but I won’t be at my computer at the time this starts. My question is this – A company from whom I received IV supplies submitted duplicate and sometimes fraudulent claims to my health insurance carrier. This resulted in this company being overpaid by my insurance carrier in excess of $5,500. Insurance has sent letters demanding repayment but over a year later no repayments have been made. This same company continues to bill me for $3,000 and I am refusing to pay them because they’ve not returned any of my insurance carrier’s money and therefore have already been paid in full, and then some. Does this company have a legal right to pursue me for the $3,000?

Thanks for any advice you may give.

Joe Escalante: Without looking at all the paperwork, my gut feeling is that the insurance company and the vendor need to work out their issues between them. The $3,000 that they say you owe them should be submitted to the insurance carrier. It seems like they are the ones who determine if it’s valid or not. However, if your insurance company denies it, you are on the hook for it.
It’s the insurance company’s job to figure out if they’re being over billed. So what I’m saying is be careful and make the insurance company do their job so you don’t get in the middle more than you need to.

Patricia: Thank you. I’ve made the insurance company aware that they’ve grossly overpaid this IV company and they have demanded that this overpayment be repaid to the insurance company. After more than a year, the IV company has not repaid any of the money, and my insurance company indicated to me that they are not going to sue the IV company. The $3000 balance I’m being charged would be my portion of the bill after insurance payments, so for me to submit that to my insurance company would be a waste of time. However, due to the gross overpayment that my insurance company is apparently not going to sue for, the IV company has all they have billed for (including the $3000 they want from me) and then some. The IV company has been paid in full with an overage. No?

Joe Escalante: Yes, but the I.V. company has a contract with you. They can enforce that. Even if they settle up with the insurance company (which arguably they have), you would still owe the $3,000.

Eric: My daughter is now 22 and, hopefully, finishing college soon. My grandmother set up an educational trust for her, and the funds are now exhausted (me, too). How do I legally terminate the trust (it’s in Illinois, I’m not) so that I don’t have to deal with tax returns, etc. in the future?

Joe Escalante: This all varies by state, and their adoption (or not) of the Uniform Trust Code. It probably terminates automatically because it has fulfilled its purpose but whether a court proceeding is needed to officially terminate it in your state, I don’t know. Unfortunately, you need to talk to an estate lawyer in your state.

LegalZoom: We can help you find an attorney if you don’t have one, Eric: http://www.legalzoom.com/attorneys-lawyers/legal-plans/personal.html?cm_mmc=social-_-fb-_-freejoe-_-na

Meri: My husband recently purchase a new car. He requested cruise control to be installed so they included that in his loan and made his appointment for one week later. He drove the car Monday thru Friday and took the car back to the dealership Saturday. He was given a loaner car and was told the car will be ready on Wednesday. He called them Wednesday morning and asked if he could wait until Saturday b/c he had to work over everyday.( the dealership is an hour away) they said that was fine. Saturday he left about 9am to go get his car.at 10am the salesman called and told me his car wasn’t ready b/c whoever installed the cruiise control messed it up.to make a long story short he left the car there to be fixed. However, the dealership let one of the guys drive the car to the place(over 100 miles from the dealership to get the cruise control. my husband is not happy with any of this….he di not want anyone to drive his car anywhere! Especially someone he doesn’t know. He is very careful with his posessions and takes great care of things that are his.he doesn’t know how it was driven…too fast, grinding gears etc. Does he have any grounds to return the car or to request another car identical to this one?

Joe Escalante: He has a decent argument to rescind the contract for the original car and demand a new one. To fight these guys will be hard and expensive however. Without a consumer law attorney on your side, it will probably not be worth it.

Wayne: LLC or inc.? For a service business one owner and a staffing agency provides the workers. Already have general liability. Thanks — new York state

Joe Escalante: LLC is easier to manage and liability protection is similar to incorporating, but the tax implications for your specific situation need to be discussed with your tax pro before you make the final decision.

Garry: Hypothesis: copyrighted materials (movies, songs..) are uploaded from my own computer. Evidence such as watermark, fingerprint and IP-adress link the uploaded material to my computer.

If I do not dispute the fact that evidences are against me, and that I argue that it was not me who uploaded such files (i have been hacked, it was a friend, or my children who did so) , how can I be civily and criminaly charged/protected ? If known, what would be the answer under the French Hadopi Act ?

I thank you in advance for your help!

Best regards

Joe Escalante: I don’t now about this French Act, but in general, an expert witness would be called to testify to what certainty the plaintiffs can establish that is was you or not. Then it will be up to the trier of fact (e.g. the jury).

Darrell: We sell authentic products. US based company. Someone overseas took our logo and is using it on a site that sells replica products. The site is hosted on a server overseas in Europe with a known hosting company. What is the best way to get the site taken down as we do so overseas business and have had some customers form Europe email us regarding it. So it is harming our reputation. Thanks

Joe Escalante: Start with a take down notice. Here’s a good explanation of how it is supposed to work: http://rising.blackstar.com/how-to-send-a-dmca-takedown-notice.html
However, it’s never that simple. Next step is a trademark lawsuit. That’s expensive of course. You have to hire an attorney overseas.
International protection for U.S. registered marks is now available through the USPTO (Madrid System) http://www.uspto.gov/trademarks/resources/exam/madridguide.jsp#II

Christine: Is it legal for a company to use vacant buildings as addresses of their business so they can have many listing on Google? This tends to bump other companies of the first couple of pages. If it is legal it just doesn’t seem morally right.

Joe Escalante: There’s probably no specific law against it but they would be susceptible to consumer fraud lawsuits that are nasty profitable for the lawyers and plaintiffs who file them. Find a consumer fraud attorney in your area, tell him or her about this, and start shopping for mansions!

Maritza: I am a 61 year old handicapped lady that had a Stroke on 8-22-02 I am not receiving dissability because I was married for 23 and half years and we were self-employed but my ex did not paid Social Security for me but he paid it for him. Can I apply under his SS # ?

Joe Escalante: According to the government, it might be possible in some circumstances. Check it out: http://www.ssa.gov/pubs/10127.html

Dar: Does a corporation sole offer protection for a residence and/or commerical property and does LegalZoom offer this?

Joe Escalante: You could form a corporation and buy property with that corporation. Someone could slip on a banana peel on that property and sue you. However, theoretically they could only recover damages from the corporation, and not from you personally. If that’s what you’re talking about, yes LZ does offer this.

Tippy: If a person gets sued for defamation of character, does the Court decide if a person has character or do everybody have character?

Joe Escalante: Everybody have character, Tippy! The judge or jury will decide if the defamation was untrue, and caused people to spit on the ground or something like that because it was so damaging to their character. Then they will decide on damages.

Molly: how does a person go about presssing charges against another person under the computer security statutes for intentional destruction of computer data?

Joe Escalante: I’m not familiar with those statues. If they don’t provide a specific remedy, then I suppose one could sue for damages in civil court. Or, one could notify the district attorney if they feel it is a criminal matter.

LegalZoom: That’s it for Free Joe Friday! Come join us during Free Joe Tuesday for more free legal advice and have a great weekend! http://zoo.mn/FreeJoe

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January 31st, 2012 at 6:01 am