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Do Last Wills Have to Be Notarized to Be Valid? Plus More Legal Advice – Free Joe Friday 8/19/11

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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.

Monica: I’m starting a clothes line I have my name and my my logo. What type of patents do I need to protect both of them?

Joe Escalante: First you would want to trademark your name for the specific type of clothing you are associating your name with. You need one for each class of product. You might want one for a design, like the Nike Swooosh, or a text one might be enough, with just the name.
You could get design patents for your designs but they are not that valuable because people can just change a little and bite your style.
A dress can be copied by anyone with impunity. A dress pattern however, can be copyrighted, but that only protects you from people copying the pattern, and not the dress itself. And who’s going to copy just the pattern? I could go all day on this stuff. You should call my radio show and we can go into it further.

SDEC: A company created on Facebook and MySpace and other social networking pages with my name, and posted content about me to be associated with their company, all this without my permission. I requested to have them removed, months later, they are still online. I even contacted FB about this. Thoughts?

Joe Escalante: If they are attempting to create revenue from your intellectual property and identity, get their physical addresses and names and see if they have any assets. If they do, a lawyer might take this case and file a complaint against them in court for trademark infringement, interference with right of publicity, unjust enrichment, copyright infringement maybe. There may also be remedies under the DMCA for bad web behavior.
They may have Fair Use Doctrine defenses however, so research that. If they are just reviewing your product or services it’s a free speech issue.

Chris: Hi Joe.. In an non married situation, SO CAL. Does the mother of the child to be have the right to give the child her last name or does the child have to be given the last name of the father? Not sure how that works in terms of benefits for the child if Father does not take responsibility.

Joe Escalante: If the father doesn’t sign the Declaration Of Paternity he doesn’t have much say.

Kimberlee: I have 2 questions…… First, how do I protect an Idea I have while it is in the developement stages?
Second, what is my first step to prove I am not the father of my estranged wife’s baby, my name is on the birthcertificate because we are married? She has applied for welfare and they want me to pay child support.

Joe Escalante: 1. Ideas are not protectable through by copyright, only the creative expression of ideas are protectable. You either have to flesh it out and copyright your expression, or don’t show it to anyone.
2. Deny the paternity through a family law attorney. Demand a DNA test. Get a boy’s name for yourself so people don’t wince.

Marie: What benefits can someone with a very simple patent application expect to gain by using a patent lawyer to help them file the final application before the patent pending status is up, versus doing it on your own?

Joe Escalante: Of all the things that you should not do without an attorney, I think filing the final patent application ranks right up there with representing yourself at the death penalty phase of your murder trial.

Bob: What are the laws re suing for libel on Internet posts-getting IPs-suing the webhosts as co-parties after they have been notified?

Joe Escalante: First you must send a take down and retraction notice. If they don’t honor this, you go to the next step which is filing a lawsuit for defamation. Refer to the Digital Millenium Copyright Act for the defenses the IPs will assert.

Scotty: I am being railroaded by the courts in mississippi..I have not seen my kids in 14 weeks…We are under a temporary order and they tell me they do not hear contempt hearing here during the temporary orders…My case does not come up until june of 2012…i have only seen my kids 3 times since january and they will do nothing to her..i do have an attorney and he has not gotten me anywhere…everone tells me to get a new attorney but i cannot afford one…there has got to be someone somewhere that can help me some way here…my kids are just babies and have not seen there dad in forever…i know it hurts them as much as me…please help point me in a direction!!!

Joe Escalante: I’m not familiar with Mississippi legal aid services but you should at least try to get a free consultation with a different lawyer. It might not be that expensive to switch.

Beth: How long after firing a gun will gunshot residue remain on one’s hands? (I suppose that is more of a forensic question than a legal one but it pertains to a legal issue in a pending trial, so if you know, I’d love to hear the answer). Thank you!

Joe Escalante: If the gun shot involves a burn, it can stay until the skin or fingernails grow and shed it. That’s my guess. However, next time you shoot someone, go to the gun range right after with some credible witnesses and don’t wear gloves.

Jennifer: Question: The process to file for a Trademark they say it takes about 6 mos (appx.) during this time period we have filed a ficticious business name with our county (San Diego, CA) & doing the notification of the business (TradeMark) in a local paper. What else should we do if we start to advertising and setting up (Stickers, Hats, T-shirts) to protect us? (The trademark is a word)

Joe Escalante: The best protection from the disaster of having your trademark denied after you already made 10,000 custom beer cozies is a thorough trademark search. For the most protection, have an experienced trademark attorney perform it.

Stan: Legal question: We at Biehler-Poe Enterprises, llc maintain multiple websites and Facebook fan pages. A particular “group” of a local recreational park is now “insisting” that we take down photos of [them] that captured [them] in some background of shots taken of grandchildren swimming. VERY impractical, as we’ve already “blurred out” the faces and even the majority of their bodies. They (the group of lifeguards) are completely undistinguishable. They’re actually upset about other matters at the Park~ What’s YOUR TAKE? -The fan page can be seen at Friends of H. P. Eells (Bettsville) Park

Joe Escalante: Amazing. First, people don’t have an absolute right to prevent their image from being photographed if they go out in public. They just don’t. Second, what are their damages? People cannot recover damages in court that don’t exist so taking legal action against you would be a joke. If they did sue you, you could counter with an anti-slapp suit (look that up) and it would be over. You also need a new person to blur images for you, or decorate the ones you have as surf boards. You would be risking very little by continuing to show them as they appear in the original photographs and letting them hire lawyers to come after you. You have to fight people like this. If it’s private property, they can make policies about taking photographs, but they can’t invent damages from being photographed that don’t exist.

David: If a Last Will is not notarized, will it still be a legally binding document?

Joe Escalante: Yes. Notarizing a will is not required. It may be good evidence if it’s challenged, but it’s not required.

Maddie: If someone filed DBA in 2008 and applied for EIN, but never started business and never filed taxes for business, but then “upgraded” business to LLC and provided EIN during the process, but now wants to dissolve the LLC due to family situation, how does one do that? Does the EIN point to the DBA from 2008 or the newly formed LLC?

Oh yeah, sole proprietor DBA was “upgraded” through Legal Zoom ordering of LLC about a month ago.

I forgot to mention that an SS-4 was not prepared by legal zoom, but 2008 EIN was provided during the online purchase of the LLC. I’m trying to figure out what I have to do to dissolve the LLC, which won’t operate due to tragedy in family.

Joe Escalante: Your operating agreement should dictate the mechanics for dissolving the LLC. If you don’t have one, default is controlled by whatever your states rules are for dissolving an LLC.

Charlie: in the state of Colorado, can a company legally put a employee on family medical leave ,even if that employee didnt sign papers,this employee was hurt on the job and on workers compensation disability put employee on FMLA, and then fired the employee after 12 weeks,cause employee was still injured ,and on workers comp. and still is. is this legal, and how can a employer fire a employee in Colorado when they are still injured,from injury received from this employment . Please help. employee has had 2 surgeries ,going on 3 and his attorney keeps saying there is nothing he can do about it.. is this true.???

is this employee screwed or does he have a crappy attorney…he needs leagal advice and help.

Joe Escalante: If the case doesn’t attract a worker’s comp attorney on a contingency fee arrangement, there’s something wrong with the case. At the very least go to the labor commission and file for relief under wrongful termination.

Terry: Hello Mr. Joe.. With all the raids on “Private Buyer Clubs” also known as “Herdshares”, Where the customer owns part of the animal (Goat, Cow, Hog, Ect.). Can I expect to see an unflattering mugshot of myself on the CDFA’s 10 most wanted sustainable farmers list, if I continue with type of operation?….

Joe Escalante: You should join the Tea Party and fight for freedom to do things like this. The feds are not always your friend.

Carol Anne: Is it possible to get partial non-profit status? Our business is teaching students various musical instruments, voice, theatre and art. We would like to start a scholarship program for students that can’t afford the lessons/instruments and allow businesses and individuals to donate to it, but we don’t want the whole business to be a non-profit.

Joe Escalante: Too messy. Start up a new 501 c 3 and get a good tax pro to advise you.

LegalZoom: That’s it for Free Joe Friday! Joe will get to as many of your questions as he can. If we don’t get to your question, come join us on Tuesday for more free legal advice. Get the details on the Free Joe tab: Have a great weekend and be sure to check out the Barely Legal Radio w/ Joe Escalante Facebook page!

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