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Ask a Legal Question at No Cost | Trademark, IP & Litigation Law
Anthony Cartee Answers Legal Questions

Ask a Legal Question at No Cost | Trademark, IP & Litigation Lawyer

Ask a legal question about Trademark, Copyright, Intellectual Property, Trade Secret Disputes, Trademark Infringement, and IP Litigation or related Business Litigation and get free legal advice direct from Orange County Trademark & IP lawyer Anthony Cartee.

Contents


Unfair business competetion

Q – Unfair business. what are the main causes of action in CA when a competitor is unethically harming my biz, misleading my clients?

Basically, a competitor is stealing my business through hijacking my ads and other unethical means. If I were to sue him, what causes of action would be likely filed? Punitive damages available?

A – Generally, when a defendant acts deliberately and with malice towards another, it usually gives rise to a cause of action that allows for punitive damages. But, the amount of punitive damages available is dependent upon defendant’s ability to actually pay those damages.

As a reminder, if your business is a corporation, it cannot represent itself in court other than small claims. So, you will need an attorney for this. Do not worry too much about the causes of action that an attorney can name. As has been pointed out by my colleague already, you have a variety of claims available, with the possibility of punitive damages. The most important of which, depending upon the rest of your facts, is injunctive relief — i.e., filing a lawsuit and immediately asking the court to stop him from what he is doing through a temporary restraining order and prelim injunction. That is very difficult for a person to do on their own. Please seek counsel and spend enough time with that person so that the attorney can fully understand the facts of your particular matter. Best of luck.


Can I sue my publisher for a kill fee and the rights to my work?

Q – Can I sue my publisher for a kill fee and the rights to my work?: I live in CA; a NYC-based publisher approached my agent two months ago with a proposal to write a book about a pop culture topic, due 4/15, for a total payment of $30K. Terms were agreed to by email, and contract negotiations began. The contract was not completed by 4/15, but the publisher pressed me to submit the book anyway, so I did. (I have extensive email documentation of all this.) Today, the publisher declined to accept the book. I would like a kill fee as compensation for the two months of work, but still retain the rights to publish elsewhere. Is this is feasible, given the lack of signed contract?

A – One of the first questions an attorney might ask from your post is whether a contract was ever, actually signed. You mention the contract was “completed” albeit not by the due date. Nonetheless, was it executed by both parties? If it was, you would need to sit down with an attorney to fully review the terms and obligations of that contract, as most of your claims would be based on that. A “kill fee” would be part of a publishing contract.

However, even if there was no contract signed, you may still have rights to compensation for your time, particularly if that time was blocked off for this specific project. In California, promissory estoppel claims consist of (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) his reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance. Moreover, an attorney would have to look at all the emails you have to determine the precise causes of action you might have available to pursue.

If no contract was signed and the publisher declined it anyway, there should not be anything stopping you from publishing elsewhere. Regardless, you should sit down with an attorney for an hour to determine how best to proceed. Best of luck.


Days to respond to a first amended complaint?

Q – In California how many days do I have to respond to a first amended complaint?: This is an unlimited jurisdiction matter.

A – An answer or demurrer to the first amended complaint is the basic answer. There are also motions to strike, motions to quash, and other possible motions depending upon the facts in the complaint, whether you were served properly, whether venue is proper, etc.

If this is a first amended complaint and you have already answered or responded, you basically are limited to the answer to the amended complaint or a demurrer to it.

If it’s unlimited, I’d seek an attorney to help you out. Best of luck.


Business demand letter

Q – Can a business demand letter for a S corp be sent to my mother in law’s address demanding and threatening her to pay? A customer has sent me demand letters asking me to pay $X, now his attorney is sending demand letters to my mother in law, her home address, under her name, and asking her to respond or they will take legal action against her. Is that legal? Is that valid? How could my mother in law be sued for my business matter. She has no relation to my business at all. She lives at her own address. The only connection is that she is my mother in law.

A – More information is needed here, especially how your mother in law’s name was even ascertained. Does she work with you; does she hold herself out as an owner of the business; introduce the client … etc.

Nonetheless, if the complaint is to the “corporation,” s-corp or not, it’s a corporation problem and the customer would need to have something more factually to put your mother in law into this.

Of course, soooooooo many more facts can change that assessment. Bottom line though, if your business is being threatened with legal action, your company “s-corp” or whatever corp, cannot defend itself in court without an attorney, so seek one out now.

If your mother in law is being threatened with legal action, she may have some additional avenues to pursue depending upon the circumstances of your case.

In my opinion, it’s better to be on the offensive here and not just reactive in these types of situations. Best of luck.


I am being accused of trademark infringement

Q – I am being accused of trademark infringement & told to change my name, can I add a work at the end of the name to make it legal?
I have been in business for 2 1/2 years, I was recently told that I was in trademark infringement. I own a small consignment store and the owner of the trademark owns a consignment store 400 miles away, in the same state. She trademarked the logo 1 year after I opened. Can I just add a word, ie.. Boutique, at the end of my name to be legal?

A – Just because you are “told” you are “in trademark infringement” does not make it so. My colleagues are correct to point out that it is not when another “trademarked” a logo, but when it was used in commerce.

They are also correct to point out that you need to consult an attorney on this, as there are way too many factually specific points that would have to be addressed and reviewed. i.e, the marks (she registered a logo … are you alleged to have infringed the logo then? or the name?). Federal registration (trademark protection) also goes to use in interstate commerce, not merely intrastate commerce, so spend an hour to go over this with someone before changing anything. Best of luck.


How do I get an international divorce?

Q – How do I get an international divorce? I live in southern California; she lives in Canada. It will be uncontested.

A – You can file for divorce in California if you meet California’s residency requirements. Either you or your spouse must have lived in: California for the last 6 months AND in the county where you plan to file the divorce for the last 3 months.

Depending upon how long you have been married, if there are children, and other factors will determine exactly what paperwork you will file; however, if you meet the residency requirements, you can file the petition in California even if she is in Canada. You should speak to an attorney even if it is uncontested as there are always issues that you may encounter along the way.


Process for terminating a lawyer’s representation in Federal Court?

Q – What is the process for terminating a lawyer’s representation of the client in Federal Court?

I have already sent him a notice of termination by email. Does he still need to file a motion to withdraw from the case? I haven’t found a substitute lawyer yet. Also, I am currently abroad so I want to avoid as much paperwork and correspondence as possible. What is the quickest way to go about this?

A – You need to find your new lawyer quickly if you’ve already sent a termination notice by email to your counsel. The new attorney can take care of filing a substitution of attorney with the court.

You need to make sure that you have a copy of the scheduling order and are aware of any outstanding deadlines and/or response deadlines for any calendared motion, especially any discovery deadlines. The Central District of California is much less lenient than its state court counterpart when it comes to managing its overloaded docket. Even if you’re abroad, you’ll have to get someone to substitute in and make sure none of these deadlines are missed. Best of luck.


How can I protect my “secret recipe & logo”?

Q – How can I protect my “secret recipe & logo”? i own my own restaurant and recently opened up another one with the same name, logo and my “secret recipe” this second place i opened up with 3 other business partners and we are all 25% owners. we are associated with LLC. My name is the only one on any business licenses, taxes and the lease. one other partner is on all the bills and we are all on the checking account. our lease is up this year. if things go south with my business partners and i choose to not renew the lease can they continue on using my name, logo and recipe without me receiving any compensation for it? what kind of contract would i need to have so that my trademark is still protected in case i do not decide to continue working with these people?

A – This is really interesting just because it is such a common problem when things go sour, but you’d need to speak to an attorney directly as there are too many unanswered questions here.

“Can they continue on using my name, logo, and recipe without me receiving any compensation for it?”

All of these would/should/might be covered in your LLC documents, and operating agreement. If the operating agreement is silent to it, you would need to have a few agreements put into place … as to what kind of agreements, depends on further information.

For example, as to your “logo,” do you have a registered trademark? If yes, and it is in your name … did you ever assign it or license it to the LLC for use? Does the assignment/license agreement contain clauses to the effect that if you are not part of the LLC, the license terminates. In other words, do you have anything in writing saying who owns the IP?

If by “name” you mean your actual name, you should be able to take that with you. But again, even if it seems obvious, you’d need to get that in writing. As to the “secret recipe,” first, keep it secret. A license would have to encompass that as well.

These are initial reactions but what will not change is the necessity for an attorney to get on the phone directly with you and work out these matters. Best of luck.


How to ensure I have a stake in a future venture/company?

Q – How to ensure I have a stake in a future venture/company?

Me and a relative are working on launching a new type of food product. It is his idea, but I am on board, creating surveys assisting with the Business Plan, contacting Attorney’s for Trademarking, giving suggestions, and assisting with other financial duties. Right now everything is just starting and it is all unofficial.

My question is, if this does takeoff, and for whatever reason I get dismissed, what do I have (or what can I do) to ensure I still have a stake in his venture or receive something for the the work I’ve contributed? Thank You

A – In law there’s a saying, if it’s not in writing, it never happened.

If you are contacting attorneys regarding trademarks and securing the IP of the “company,” you need to have an attorney actually form the company. Because you already have the fear of being squeezed out, I would recommend using counsel for this, rather than a chop shop who say they’ll just file the paperwork for you.

The problem with start ups is that they usually are penny wise and pound foolish … meaning they will eventually consult with an attorney when something goes wrong. The good news is that you’ve already recognized this problem. If your partner/relative is hesitant in using an attorney to actually form a business entity, then you need to put your partnership agreement in writing. Unofficial or not, if money becomes involved … somehow it all becomes official. Best of luck! PS – launching a food product always have regulatory issues that you would need to consult with counsel about anyway unless you guys are experienced in those matters, so someone who can get you all of that would be helpful.


Fee arbitration with the CA State Bar against my attorney

Q – I am filing a fee arbitration with the CA State Bar against my attorney. Should I tell him of my intent not to pay him anymore?

Long story short – my ex-attorney, whom I fired months ago, doesn’t know it yet, but I am not going to pay him anymore money. I did all the work myself and his so-called representation of me during my divorce was negligent at best. I am not requesting any money back, but he’s received $3,525 and that’s all he’s getting. He says I still owe him $3,900. I did not pay him last month and his accountant is calling me about it – should I tell them that I am disputing his remaining fees and that I am filing a fee arbitration, or should I just let them keep calling me. I plan to mail the paperwork to the State Bar in the next couple of days – should I wait for them to contact the attorney?

A – Granted that I may be biased being an attorney, but if you dispute fees with an attorney, you should always try to resolve it directly with the attorney first.

If you fired him months ago, then did you try and sort this out at the time? If you dispute an amount, you should tell the attorney that you dispute the amount. What is the $3,900 based on … did you receive an itemized statement of time, is this a flat fee for his services, etc.?

Only if you don’t get a resolution out of that should you proceed to fee arbitration (in my opinion). Now … you mention mailing the paperwork to the State Bar … the State Bar doesn’t normally handle fee arbitrations, local bar associations do, such as the Desert Bar Association in Palm Desert. The State Bar handles ethical violations and disciplinary actions. So, I’m not sure if you’re trying to do both here, which you can. Nonetheless, I would tell the attorney you have a fee dispute, as any arbitrator will certainly ask if you tried to work this out before filing. Best of luck.


Emotional distress civil case.

Q – Defendant in an intentional emotional distress civil Case. What do I do?

My ex boyfriend was having an affair and I found out about it. I bought a dog and have all kinds of proof that the dog was chipped by my purchased by me since 2008. He was dating me and one other girl for approx 2 yrs while dating me. I moved out of country with my dog and came back and ended up back with him. when i moved back i moved in with him for several months. He was extremely verbally abusive to me and has hit me as well but i never reported it. I have a temp restraining order on him now. When I found out of his affairs I left and took my dog with me. i slept over at his house everyday so he says his friends and neighbors will claim the dog was with him all the time. he is suing me for 25001.00 for emotional distress and return of stolen property. Can he actually win this?

A – If you have a temporary restraining order against him, you should speak to an attorney about the threats he’s been giving you and texts he sent to your daughter immediately.

You also need to timely respond to the complaint, either through demurrer, answer. It sounds like you have cross-claims here as well. Does he have an attorney? Crazy. Your question on whether he can actually win this won’t be answered here. He brought a lawsuit against you. An attorney would have to look at the complaint and all the facts alleged in that complaint, listen to all the facts from you, before giving you any kind of answer to that question. However, an emotional distress case in California are very difficult to prove and win, but I assume this also involves return of property (which is in dispute and an entirely different issue) … this definitely sounds like a lawsuit filed to harass you … but bottom line, yes, he can win if you don’t respond. Speak directly to an attorney.

Best of luck.


Can I sue an attorney?

Q – Can I sue an attorney?

I live in a community property state and was forced to file BK as a result of a divorce. I claimed all of my debt, but not hers. Since I didn’t claim the credit cards in her name (substantial debt) I was murdered in court and the judge assigned half of her debt to me. I told my attorney who did my BK I was getting divorced. He knew everything! I never even thought to claim her debt and he never asked about debt in her name. He even told me I’d have to reaffirm one of the cars my ex had in her possession just to make it a chapter 7. Now, on top of alimony, I have this judgment hanging over my head ($40K) growing interest. She will be coming after me soon. My question is, can I sue the BK attorney? I know attorney’s don’t like suing other attorneys, but he really screwed me. I really need advice and I’d really appreciate not being called stupid for not understanding community property law.

A – Why would anyone call you stupid? Law is complex, so even your question raises many different issues and many different possible avenues to explore that you need to speak to an attorney directly.

Can you sue an attorney? Yes, but should you in this case, depends. First, you need to address the 40k debt, which I will assume was your portion of community property debt. If that is the case, you should speak to a bankruptcy attorney about the possibility of re-opening your bk case–assuming your case was a consumer non-asset case, you may be able to have it discharged (again, you need to speak directly to an attorney to surmise all the facts here). Once you speak to another bk attorney about the possibility of discharging the non-reported debt, you will have a better idea of whether you should sue your prior attorney. Best of luck.


Can I sue my book publisher for breach of contract?

Q – Can I sue my book publisher for breach of contract?

I signed a contract with a vanity press publisher in England and paid over $4000 to get my book published. They have failed to provide stock to Amazon.com, causing me loss of income; they have failed to market and promote my book as stated in the contract; they have not signed a contract with an American distributor, which means I cannot do book signings in the USA or have my book displayed at bookshops. They have failed to respond to my written requests for an explanation.

A – Any question about bringing a lawsuit for “breach of contract” begins with reading the contract. Usually, contracts will have choice of law and choice of forum provisions in them. They may also call for arbitration rather than suit in court. So, until you show an attorney the contract, no one will be truly to give you a plan of action here.

Yes, you can sue your book publisher for breach of contract; however, the red flags have been thoroughly raised already by my colleagues. They are correct as to the chance that this may end up overseas and (assuming you’re not up for international litigation), the end of a suit. But, it can certainly begin here. Whether it should begin here requires a sit down with an attorney.

You have paid over 4k to a vanity press … (lesson learned – don’t pay for a publisher to publish your work). With all the self-publishing options available and even print-on-demand options, vanity presses aren’t a viable option for any author. But, how did you hear of them … did they reach out to you, did you reach out to them? What representations were made by them, over the phone, on paper, etc. How much business do they do here? These are the beginning of the questions that an attorney would need to know before being able to help in this matter. Best of luck.


Can a dating site use my picture/profile for their advertising without my permission?

Q – Can a dating site use my picture and profile for their advertising without my permission?

Before signing up for a free dating site, I read their “Terms of Agreement” to make sure they wouldn’t use my info other than on their site. There’s nothing saying by joining I’ve given them permission to use my picture for anything other than on the site.They’ve since posted both my picture and complete profile on the internet as an advertisement for their site.The link opens up to a full sized page of my picture and all my info. I then changed a couple words to see if they were in fact updating my info, and it’s exactly what they’re doing. I’ve tried putting other member names into a search engine to see if everyone’s photo and profile are posted, but it seems that they have only used mine in such a way. I never gave my permission for this. What rights do I have for removal?

A – Have you asked them to remove the advertisement? If that hasn’t worked, you’ll need to speak directly to an attorney to review the “Terms of Agreement.” On one hand, misappropriation of one’s name and likeness is both a statutory and common law cause of action in California. What that means for you is that California does take this type of issue seriously; however, going to court over it is a little tricky as there are usually other issues/claims raised by such a claim. An attorney would need to go over the site and terms with you to give a full assessment.

It all starts with demanding them to remove the picture as an advertisement. Such a demand letter/request can come from an attorney but doesn’t have to. If you do it, you need to remember to start putting all your requests/communications in writing (in law, if it’s not in writing, it didn’t happen). Best of luck.


Who do I contact if my lawyer is not performing his services?

Q – Who do I contact in an effort to turn in my lawyer for taking my money, and not performing his services?

I retained my lawyer. I paid him 4,000.00 cash to file suit against two auto repair shops who caused appx. 13,000.00 in damages to my vehicle that I paid for . My lawyer has repeatedly told me the same story ( “The case has been filed, were just waiting for a court date” ), but last month told me that he was going to file a small claims suit against the two parties. I am unable to contact my lawyer and he is not returning my calls. Also, the repairs to my vehicle were done in Feb. 2011 and it has been over one year since they were complete. Am I still able to sue for damages at this time?

A – Given the amount of damages involved here, your first and probably most viable step will be to report this to the State Bar as my colleagues have pointed out. They have a form you can download and submit to them at no cost to you on the website.

The State Bar of California actually keeps a fund available for reimbursement to people who pay money to an attorney and do not receive anything in return. If everything is as you say, you might at least get the 4k you put in back. You would need to speak to another attorney in regards to the suit against the repair shops, as we first have to know if the cases were actually filed. Given that there are statute of limitation concerns, I would urge you to do that immediately. Best of luck to you.


Q – I was sued in LA but I am in Imperial Beach (south of San Diego).

Someone sued me in regular court for under $1,000. Payment isn’t due until January 1 2013. That date was part of the agreement before the person performed services. There is nothing in writing about the debt or due date == I know that was a mistake on my part. So he sued me in Los Angeles where he lives but I am in Imperial Beach which is south of San Diego almost all the way to Mexico. I know I have to respond somehow to the suit. Do I have to drive all the way to Los Angeles to deal with this? Can I get the case moved down here where I am? Also the guy says he hired someone who served me in person with the lawsuit but that is not true. I only know about it because he called and told my wife he wanted to know what I was going to do. So we checked with the court and it is true == he sued.

A – There’s a lot of options you have here, and I suggest contacting an attorney to assist you in this as motions to transfer can allow for the recovery of attorneys’ fees (depending upon the circumstances) — meaning, you can make this so much more than what it’s worth before it even gets started.

First, have you seen the complaint? Meaning — do you know if you are being sued for something else besides this $1,000.00 (assumed breach of contract) … i.e., fraud, etc. An attorney will need to look at this in order to best advise you; however, without knowing more, you should be able to move to transfer this action and have it heard in the county where you reside.

Second, you have another option and can move to quash the “service,” which you say did not occur. If a proof of service has been filed, however, then you need to act before being defaulted.

Third, do you have any cross-claims that you might bring against him to make this more of an offensive battle? All of these considerations need to be taken into account as to how best to proceed. Assuming that “service” has been performed — albeit bogus service, you need to retain counsel now and move this forward. Best of luck.


Can I go for trademark as ‘xyz.com’ ?

Q – Trademark question – Opinion requested. Owing to some conflicting advice I will appreciate an opinion on this please:

I already own:
– In CA I have just registered “xyz.com Inc” (Notice the .com in inc name)
– “www.xyz.com” domain and site

Somebody in NY and Delaware have registered since 2008:
– xyz LLC (Notice the absence of .com in name)
– They are in a totally unrelated business.

My question:
Can I go for trademark as “xyz.com” (Notice the .com inclusion in text)?

A – “Can I go for trademark as ‘xyz.com’ (Notice the .com inclusion in text?”

Yes, you can; however, I believe your real question is something that no one can answer and/or guarantee … will the application go through and will you get a registered ‘xyz.com’?

First, you may be asking the wrong questions: trademarks are based on use … you say that you “just registered” xyz.com, Inc., so are you actually doing business? Are you actually doing interstate business?

What class of goods and/or services are you seeking to obtain rights in? What does your business do? There are plenty of “xyz” trademark applications found in just a cursory search on the PTO’s site. There was also an xyz.com application abandoned a few years back. Likelihood of confusion might be found in some of the current live ‘xyz’ marks with your application, but that all depends upon facts not ascertained from your question.

If the name is very important for your business, you may want to take a chance; however, you definitely need to speak to an attorney and go over all the facts in your matter. Best of luck.


How do you delete/remove a trademark from existence?

Q – How do you delete a trademark? Why isn’t there an option to remove your trademark from existence?

I have an old trademark that i would like to remove because the nature of my company’s services has changed dramatically. How can i have the trademark information removed because the services are damaging the credibility of my company. I know a trademark needs to be renewed every 10 years. If i don’t renew it will it still stay in the system as an abandoned trademark or will it delete? What are my options given that I don’t want to change my company name and would like to register a new trademark with the appropriate services?

A – More facts are needed here to properly give you a detailed course of action, however, you can surrender a registration for cancellation. I doubt you’d want to do that here though.

You can also amend a registration to reflect the proper class of goods and/or services that your current mark covers. I don’t believe anything you do will remove the mark from the public database, however. If you don’t renew, it will eventually remain in the system as cancelled or abandoned, but it won’t delete. It will say “dead” when one searches.

If your “new trademark” is the same as the old trademark then an amendment would be the best way to handle this. However, you should seek a trademark attorney to discuss the full spectrum of options here. Sorry, but if I understood your facts correctly, you’re not going to “erase” anything on the public database.


Need an attorney for 2nd trust deed collection action?

Q – Do I need an Attorney? Can an Attorney handle this situation for me?

I had a house forclosed on me two years ago, the first and the second were used to purchase the home. The second Citibank has sent me to collections and I am now getting letters for demand of payment.

A – Unless you filed for bankruptcy such that the second would be discharged, it is not uncommon for the second bank to send you demands for payment. An attorney can certainly help you with this. A bankruptcy attorney may be the best option for you; however, more facts would be necessary to understand the full spectrum of your issues here. Best of luck.


I’m getting sued by my fiancé sister over an email of her cheating.

Q – Im getting sued by my fiancé sister over an email of her cheating. What happens if the sheriff never served me?

Her husband received an email with pictures of her with another man cheating. She blames me because she says the ip address are similar to mines. Now she’s sueing me. She send the sheriff to my mothers address but I don’t live there n she knows that but I do use that address for mailing. What could happen if I never get served?

A – In a perfect world, if you never get served, then you never have to make an appearance to defend the action, and the case eventually will be dismissed for lack of prosecution … but it’s not a perfect world and that could take years.

Most likely, if she’s serious about this, you will eventually be served. California allows for various types of service on individuals, and if the sheriff can’t personally serve you after a few attempts, then you can be served by substituted service (basically leaving the complaint with someone at your last known address and then mailing it to you), and if all else fails, you can be served through publication.

If you didn’t send the pictures, then you have nothing to worry about. Is she representing herself in this action? Sad sad sad situation, but you certainly should take a look at the complaint (if you have it by some other means) and see exactly what she’s alleged against you, speak to an attorney so that when you actually do get served, you can fight it head on and put it to rest. Best of luck to you.


Who must be named when suing a corporation?

Q – Who must be named when suing a corporation?

First Question: In a legal malpractice lawsuit, can the officers be named as defendants along with the Corporation?

Second Question: In a breach of contract (legal malpractice), can the plaintiff seek for restitution of all fees if fraud was proved?a

A – (1) Yes, they can be; however, more facts would be necessary in order to determine whether they should be in your instance. Usually, the partner(s) responsible will be individually named, but again, depends on your facts.

(2) For restitution, I’d recommend (as I always recommend in legal mal cases) contacting the State Bar of California and filing a claim with it. If the State Bar finds that the attorney acted unethically, they will order restitution of all fees paid by you. The State has a fund set aside for this.

A legal malpractice claim is different than a complaint with the State Bar, but the State Bar complaint will usually get you the restitution if that is what you seek. They are not exclusive, and you can and (usually always) should pursue both avenues. Best of luck.


How do you go about finding the right lawyer?

Q – How do you go about finding the right lawyer?

I need a lawyer for two a case involving:
1) Libel
2) Copyright

We have pretty good evidence of libel. It involves a newspaper. We have evidence that certain images the paper used to try and prove their libelous claims were altered with Adobe Photoshop. The source they use is also highly unreliable. An online forum infamous for impersonators, trolls, etc. An attorney informed me that I can claim libel based on negligence, and the reliability of sources (or lack thereof) is a part of that. The attorney is someone I know personally. I have not retained him, as he is a criminal lawyer, and is already plenty busy with his practice. I’ve just been asking general questions.

The copyright claim involves the unauthorized use of a photo of me in said article. I personally took and own the photo.

A – I agree with my colleagues that asking other lawyers is the place to start. So … ask your criminal law attorney (I assume you have), and he might point you to the local bar association’s referral service.

Once you get a few names (through word of mouth, referral service, and google), do a little background check on them: Remember, all attorneys have basic information about them (including disciplinary history) on the State Bar of California’s website. Once you’ve gathered some info on them, including examining their website etc., give some a call or send an email out to them.

The “right” attorney is the one who doesn’t promise you anything; is upfront with you on the fees that he or she will charge you; gives you both a strategic and tactical course of action (erhm, plan) that he or she wishes to employ; and is someone you feel comfortable communicating with and confident that will get the result you want.

But, you have to be clear … What do you want out of this? Do you want a mere retraction or a full on lawsuit … this is something you will need to discuss with the “right” attorney. When you say the pictures were “altered,” do you also know who altered them? Newspaper or source? Also, you need to register your copyright before pursuing a suit for copyright infringement. Easy easy to do; however, it is a procedural step that will put you in federal court rather than state. You may have some rights of publicity claims as well.

Basically, the “right” attorney will invest time in learning all your facts before being willing to invest the time in representing you through a lawsuit (including finding out if there’s a collectable judgment at the end of all this — newspaper, sure, but source?). If you want to bring suit, you’re asking an attorney to run a marathon for you through a minefield. If your attorney is straightforward with you, please be straightforward with him, including providing bad fact warnings to help with this.

Lastly, even though attorneys aren’t on shelves of a grocery store where you can pick them up, look at their labels, and decide which is the healthiest choice for you … you should still shop around and get a second, third opinion (unless you have certain deadlines) before choosing who is right. If an attorney pressures you to sign a retainer then and there, most likely, he’s not the right choice. Choosing an attorney is a difficult choice that you need to take seriously and consider carefully. Those are a few pointers, vents, but they’re certainly not the only considerations. Best of luck to you.


Looking for lawyer in orange county ca for tenants pro bono

Q – Looking for lawyer in orange county ca for tenants pro bono. urgent please.

On January 18th 2 alarm fire was caused by landlords hired plumber to which he was not licensed. due to negligence 4 families were displaced from this awful fire. after investagations was founded owners do not have business license for property management in the past 10 years. owners assured us that they would take care of us while units are being repaired. january 29th we were served the papers stating landlord will no longer be responsible for us as of february first 2012. landlord changed locks without notice feb 12th, 2 of the familys are permanently disabled and on fixed income and can no longer afford to stay in a hotel. to this day we still do not have a clear time frame of when our units will be ready to move in. please please we need your help can someone please help us???

A – Try the Public Law Center in Orange County. They have a panel of OC attorneys that are willing to assist you if you meet their income requirements — which it sounds like you do.

Their phone: (714) 541-1010
www.publiclawcenter.org

If they can’t assist you, then reach out to the Legal Aid Society in Orange County.

Home

I’ve personally only volunteered with the Public Law Center so I can’t speak to Legal Aid; however, both organizations should be able to at least point you in the right direction.


Intentional Interference With Contractual Relations

Q – Inducing Breach of Contract vs Intentional Interference With Contractual Relations.

A former coworker pressured my employer to fire me without a hearing that was clearly required by my contract. It would seem that my coworker is guilty of either “Inducing Breach of Contract” or “Intentional Interference With Contractual Relations”. Does that seem right? Also, are these two things synonymous or would it make more sense to file a lawsuit under one or the other? Thank you and sorry if this was confusing!

A – Any breach of contract claim requires a thorough reading of the contract, which would go beyond the public forum here. I would recommend speaking directly to an attorney and letting the attorney worry about what causes of action might be triggered here.

It sounds as if you want to include the coworker in any lawsuit though, which in itself is problematic and, again, would require you to spend some time to go over all the facts with the attorney. If the coworker literally prevented you from getting what you were owed under the contract, you may have some claims against him — including even possible libel, slander depending upon the circumstances of how he communicated to your employer in causing you damage … tough to say without knowing more.

Contact an attorney and let them worry about what your employer and/or your former coworker might be liable for. Best of luck.


Can the lawyer fees be charged to the party I am suing?

Q – If I have to go into arbitration or litigation can the lawyer fees be charged to the party I am suing?

If there has been a breach in a licensing contract between the mfg and the person/company that licensed a product to the mfg, could the mfg be held responsible for all attorney fees? This seems fair given that if the mfg had held his end of the contract there would be no need to be in litigation in the first place.

A – Licensing contracts usually provide for the recovery of attorneys’ fees, but as has been pointed out, it depends upon what the contract says. Take a long look at the exact language of the contract, and contact an attorney to give you a more detailed analysis. Best of luck.


If I use a trademarked company’s name on my website is that infringement?

Q – If I use a trademarked company’s name in a drop down menu on my internet page, would that amount to infringement?

I am not including a specific state’s law as our website is going to be accessible throughout the U.S. but if it helps, we are a corporation incorporated in Delaware but registered as a foreign corporation in California in order to “do business”.

A – Your text does not add anything to your title/question as trademarks are exclusively federal jurisdiction.

Going by your title alone, it must be asked … what context are you using the company’s name? There is a fine line that one must walk between trademark infringement and what is commonly known as “nominative fair use.” Nominative fair use occurs when one refers to another trademark to describe that party’s goods or services.

This defense is best exemplified by parts manufacturers (we make Porsche parts) and repair services (we repair Volkswagons). The fine line comes because although courts agree that there are many cases when one company should be able to refer to another’s trademark, not all courts agree on what test would apply.

In California, where the defendant uses a trademark to describe the plaintiff’s product, rather than its own, a company will have to meet three requisites for nominative fair use. First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

You should consult an attorney before launching full blown launch of the site. Best of luck.


Attorney seeks sanctions based on California Code of Civil Procedure § 128.7.

Q – Attorney seeks sanctions based on California Code of Civil Procedure § 128.7.

I filed a summons and complaint on my former landlords. They tried to evade service and were finally sub-served. I filed the declaration of service, proofs of service, and supporting declarations. However, the court misplaced some documents and later found them, there were some minor mistakes on the proofs of service which were fixed and filed but not yet reflected in the record, but the record looks jagged. The landlords got an attorney who has NOT appeared on the record to threaten and demand that I provide him with the proofs of service, claiming that upon his request I have an OBLIGATION to provide him with the proofs of service. I don’t know if that is true being that he is not yet attorney of record and I don’t think I have a legal obligation to provide what he wants anyway, which he can get from the court. Even if I did agree to do so, as a courtesy, I still do not have the conformed copies back from the court. Now he says he is going to file a motion to quash service and motion for sanctions per Code of Civil Procedure § 128.7 for supposedly refusing to provide him with the proofs of service. Is that possible under the outlined circumstances? He has also bullied me with false accusations that my declaration of service was “false” and that the parties were “never” served, which is totally untrue, and I can prove. I have 8 threatening voicemails from the landlords from within a few hours of being sub-served where they confirm that they were indeed sub-served, even email remarks by the attorney which show he knew of the prior attempts at personal and mail service.

A – The previous answers are right on. Believe me, he’s just rattling you … and his abusive conduct towards you before even appearing in an action shows that he hasn’t really been provided a defense to the lawsuit … i.e., first, argue the facts, if that’s against you, argue the law, then if both of those are against you, argue the procedure; if all three are against you argue the policy, and if all of it is against you, just be an a##.

You will likely face a motion to quash if the record looks jagged though. So, I would consider hiring an attorney who can flesh that out for the court. You may want to speak to an attorney to handle just that motion, as limited scope representation agreements are great alternatives for those who tackle things in pro per. Best of luck to you.


Does a trademarked phrase limit another person from using the phrases at all?

Q – Does a trademarked word or phrase limit another person from using those words or phrases at all?

Regarding Trademark infringement: The words MERMAID PARADE and THE MERMAID PARADE are currently trademarked. Am I infringing on that trademark by using the words SACRAMENTO MERMAID PARADE or SACRAMENTO MERMAID’S PARADE or SACRAMENTO MERMAIDS ON PARADE or SACRAMENTO PARADE OF MERMAIDS?.

A – Pretty cool website and love the concept. You’ve already gotten some good feedback as to the legal hurdles you face. I just want to add that two of the four trademarks held are for clothing. I notice on your site that you have an official mermaid parade shirt. That could potentially be a problem. I see “Sacramento” in small letters above the shirt, but you definitely will want to revisit how best to redesign this year’s version. Personally, Sacramento’s Mermaids on Parade might be a good fallback.

As has been pointed out, if there’s no likelihood of confusion, then there’s no infringement. But, now that you know of the marks, I’d suggest choosing a little variation so you don’t have the aggravation as your concept/event hopefully grows in the future. Best of luck.


I applied a product in the USPTO Trademark registry as an “intend to use”

Q – TRADEMARK: FIRST USE AND MINIMUM NEEDED FOR THE FIRST USE.

I have applied to register a product in the USPTO Trademark registry as an “intend to use”. After going through 2.5 years of testing etc., the product is almost ready to be marketed and sold in the U.S. I sell the product in Asia, but making sure that U.S. requirements are followed is hard and I am struggling to get the product finally ready for U.S. consumption. I received my last trademark office extension few months ago, so I have only 3 months to put use in commerce. What would qualify as “use in commerce”? For now I want to do the minimum necessary to get the registration and later I will do a marketing campaign. Any ideas for the minimum necessary to get the registration and stay within the law? The product is trademarked in other countries but I didn’t apply as foreign holder.

A – You say you sell the product in Asia … but does that mean it’s produced, packaged, etc. in Asia? So, nothing has happened in the US except your intent-to-use application … okay, then

Section 45 of the Trademark Act, 15 U.S.C. § 1127, defines “use in commerce” as the “bona fide use of a mark in the ordinary course of trade, and not merely to reserve a right in a mark.” The key to your question will be how to define the “ordinary course of trade” in your business … in other words, more facts need to be known as to exactly what your “product” is, the distribution channels, etc.

The good news is that test marketing and clinical trials have been found to be “bona fide” uses … but again, this goes to defining “ordinary course of trade.” In other words, what you choose to do will be scrutinized to whether they were test sales for legitimate commercial purposes in the ordinary course of trade or token sales to reserve the mark for registration. If the sales are legitimate, then you should be okay. Again though, specific facts are necessary here — i.e., are you awaiting FDA approval for this?

I would recommend contacting an attorney directly to go over the product and all of your facts. The good thing here is that you have the trademark in other countries, so it would not be an end all be all to your application here. It’s interesting too that you decided to sell exclusively overseas … but do you market in the US (i.e., online?). There’s a few angles you might work with here depending on your facts. Best of luck!


Do I need a trademark attorney?

Q – Do I need a trademark attorney? or Litigation?

I turned in my trademark for a slang word one month before this large company. They sent us a cease and desist letter. Do I have to walk away from the pending trademark? Should I seek an attorney? Is there something that I can do?

A – My colleagues have already provided you with excellent answers to your questions … walk away? (depends); seek an attorney? (yes); something i can do? (yes — but, what you should do is dependent upon additional facts, starting with (1) how much you use this mark in commerce, i.e., how important is the mark to you). It has already been pointed out the difference between an intent-to-use application versus actual use. But, if you’re actually using it, been using it, people have associated your company with the word, then you may wish to keep it. Also,

(2) What does the cease and desist say? Is the company actually using this mark? Have they been for years, or are they “planning” to launch a new product and scorching the earth in front of them? If they haven’t used it or if they just applied like you have, perhaps you move to cancel their application. Of course, additional facts would have to be known. Also,

(3) What is your litigation budget? It is rare that a trademark case (rather in district court or in front of the USPTO) is taken on a contingency basis, so you will be looking at an hourly fight. This is the way big companies literally silence competition … as a great lawyer once said, “in this country, you’re innocent until proven broke.” But,

(4) In all seriousness, there are many many questions to be answered in determining how to respond to a cease and desist. You should speak to an attorney in order to determine what is best for your business … be mindful though … this is a business decision / not a personal one just because you’re angry about getting a cease and desist. Best of luck to you.


Do I have any right over my deceaced boyfriends ashes?

Q – My question is do i have any right over my deceaced boyfriends ashes?

We lived in common law for a lil more than three years we have a 2 year old daughter..He was killed in a hit and run accident, and i believe victims of crime paid for his services.

A – First, I am sorry for your loss. Unfortunately, unless you were actually married, you would likely fall outside the laws governing control of human remains. The control of human remains, and in the case of ashes, human cremains, is actually a matter of statute. California Health & Safety Code section 7100 sets forth a list of the people who have the right to control one’s remains in a particular order.

Essentially, the questions you ask go like this: (1) did he have a will that named you as executor? If he didn’t and/or there is no will designating anyone, then (2) did he execute a power of attorney for health care designating you as the responsible person? Given the sudden nature of your loss, I will assume this is not the case.

If there is no will nor a power of attorney for health care, it goes to (3) his spouse–this is legal spouse, not common law unfortunately. Next is (4) surviving competent adult child, then (5) parent(s), then (6) adult sibling. There are additional people after this; however, my recommendation would be to discuss with the people who are currently in control of the remains, and try to see if you might make a keepsake urn to hold some of the ashes, which is not uncommon, if that is something you would like to do. There are particular requirements for that though, so you should speak to an attorney in that regard. While you may not have the right to control the remains, you can seek some type of arrangement with his family for the sake of you and your young daughter to find some solace. Best of luck.


Getting served papers – I am getting sued in orange county…

Q – Getting served papers. I am getting sued in orange county and was served at work in Los Angeles county.

I was handed two sets of papers and told the other set was for my boyfriend. since my boyfriend was not personally served does he need to go to court? i was under the impression we could only be served like that if it was at our house, but since i was at work he would also need to be served.

A – From your facts, you are correct. However, what do you mean “does he need to go to court?” If this is a civil action, and not a small claims matter, your boyfriend will need to be properly served before he needs to make an appearance. Making an appearance usually would mean filing an answer or a motion, not necessarily “going to court” and physically attending. That doesn’t happen for awhile.

Depending on your facts, it might be better to allow service on your boyfriend, even if by notice of acknowledgment and receipt–i.e., if you are going to fight this head on, have cross-claims, etc. Of course, every case is different and how you tackle a lawsuit is something you should discuss with an attorney. The clock is ticking for you, however, so I would urge you to seek counsel now. Best of luck.


Q – Do I need to trademark my logo?

I am starting a non-profit organization and as of right now have no money to currently fund it. I am looking to trademark a logo. Would I legally be obligated to pay for the use of a logo or can i use a logo that just isn’t trademarked? I am planning to sell t-shirts without the logo on them.

A – No, you do not need to register your trademark with the USPTO. I assume that is what you actually meant by “trademark my logo”–especially if you add that you have no money to fund your non-profit organization.

You can use a logo that isn’t registered with the USPTO or with the State; however, there are always benefits to registering the logo … eventually. If money is scarce, you need to put your priorities in order. Securing true non-profit status from the government costs more than a trademark application. A trademark registration costs at the minimum $275, and goes up if it’s an intent to use application or if there is an amendment, change in ownership, or other type of mistake along the way. I believe the form 1023 (for your 501(c)(3)) status alone will cost you $400.00. That does not include Secretary of State filing fees, etc. etc. etc.

If you plan on selling t-shirts “without the logo”, then secure your non-profit status first, then if you have the funds, register your trademark. Best of luck.


A website that allows “revenge porn” and immunity.

Q – Did this website lost its immunity under Section 230 of Communications Decency Act like in Fair Housing Council v Roommates.com?

There’s a website (I wont say its name) where people email the website’s operators nude photos of their exes as “revenge porn.” The site’s express purpose is to “humiliate” and “ruin lives.”

The administrators of the site choose what to post and screen Facebook profiles in an attempt to verify the photos aren’t kiddie porn. Then the administrators (not the original submitter) post the photos, TO WHICH they add the website’s logo on the photo. The admins often post requests they call a “bounty” for a specific person’s nudes. They’ve done this to thousands of people over 2 years!

Doesn’t the website lose immunity under the CDA by encouraging screening, selecting, and watermaking the photos?

The website is here in California; i.e. in the 9th Circuit where Roommates.com was decided.

A – This is an interesting question that I would suggest speaking to an attorney directly about. Despite the decision in Roomates.com, immunity under Section 230 of the CDA remains pretty broad. In Roomates, the court found the site lost immunity only to the portion of the site where it [Roomates] provided an additional layer of information that it was ‘responsible’ at least ‘in part’ for creating or developing. Not sure from your facts that that is the case.

I don’t believe a site loses its immunity by watermarking the photos … probably doesn’t lose it for selecting it … but what exactly is encouragement? Again, you should speak to someone directly on this.

From what you’ve described, this is egregious conduct that should be taken down; however, given that this has been going on for a couple of years shows that an attorney would have to be pretty creative about the different angles you might want to try here. The bottom line is that there might be different angles to try. While 230 immunity remains broad even after Roomates, I would encourage you to seek a client letter from an attorney on this, as there are many nuanced facts that may swing the pendulum in your favor. Best of luck to you.

Also – does the site provide for any retraction/removal request … doubt it, but I ask. I ask because promissory estoppel claims may survive 230 defenses. So, if the site agrees to remove a picture but does not, you may have a claim there. Please, speak to an attorney directly.


Should I allocate money to patent and or trademark?

Q – Started an internet business, and am working to spend capital frugally, should I allocate money to patent and or trademark?

In starting an internet business, I have a creative and different concept of transaction and am curious the options for and liklihood/ necessity of working to patent (if it can be) as well as a federal trademark….should I?

A – Congratulations on the start up business. If your concept is different and unique, I’d suggest at the very least consulting with a patent attorney regarding your method. While frugality is to be applauded at times, if this is something that you could patent, you should consider doing so before launching it out into the public and possibly losing out on a patent later.

As to trademarks, you may be best to hold off on that; HOWEVER, it all depends upon some additional facts of your case. Also, if you are solely Internet based, your “brand” is extremely important in protecting, so a trademark might be able to be put off for a bit, but keep it as a priority. Applying for patents and trademarks are very much comparing apples and oranges. Trademarks are relatively inexpensive to apply for and pretty straightforward. Also, if you are starting an Internet-based business that has some unique and creative layouts etc., you may also want to speak to someone regarding copyright as well. I’d suggest speaking to someone regardless, but first about patentability of your method(s), then apply for the trademarks. Best of luck.


No settlement was offered following deposition.

Q – I have been thru deposition, no settlement was offered, we need to go to arbitration and my attorney wants out. Please help me.

A – I’m curious why you believed a settlement offer would be made after your deposition? More importantly, for any of my colleagues to help you, you’ll need to provide details about your case. Your practice area lists “contracts,” so is this a contract dispute? Many contract disputes go to arbitration, either by the terms of the contract itself or through court-ordered arbitration. And, if your attorney is unwilling to proceed in the arbitration, you immediately need to try and secure new counsel. Perhaps that will entail seeking a continuance, perhaps not. It cannot be answered without further details.

Also, as has been mentioned already, what is the reason for the attorney to want out? Nonetheless, an attorney cannot technically abandon you. He/she needs you to sign a substitution of attorney form or needs to submit a motion to withdraw with the authority hearing your matter. Of course, there are always exceptions. That is why you need to look up an attorney in the area of law you need, one that will speak to you, and go into details to get a full assessment of your situation. Best of luck.


Question about an invention company

Q – Assigning IP, Who is Right?

I got the Option Agreement from the IP_COMPANY that is going to try to market and potential license my product. Here is what they sent me:

1.1
…CLIENT grants an exclusive option, for a period of 90 days, “OPTION PERIOD”, to IP_COMPANY to acquire all rights, title and interest in Inventions, collectively INVENTION.

1.4
Upon IP_COMPANY presenting to CLIENT a proposed license agreement… prior to the expiration of the OPTION PERIOD, and upon CLIENT agreeing to said license agreement, CLIENT agrees to assign all rights, title and interest in the INVENTION to COMPANY_IP

My question to them was: Am I not assigning my IP immediately, including during the OPTION PERIOD. They said NO, ONLY if you agree on Licensing Agreement.

Who is right?

A – Is this from an invention promotion firm? If so, you need to read the USPTO’s brochure on invention promotion firms and also the FTC’s:

http://www.uspto.gov/web/offices/com/iip/documents/scamprevent.pdf

http://www.ftc.gov/bcp/edu/pubs/consumer/products/pro21.pdf

You need to speak to an attorney to review the whole contract, not just bits and pieces. You also need to speak to an attorney regarding the type of company you are dealing with here. If they are a promotion firm who is going to take your invention public and you have yet secured/applied for a patent (even provisional), you may potentially harm your chances of having a patent in the first place. Best of luck, but please seek patent counsel before signing anything with an invention promotion firm for a product you might want a patent on.


Author-publisher contract question

Q – “Copyright Infringement”, Is there another way I can find out the total number of copies sold?

Two years ago, I wrote a novel and registered it with the US copyright office. I then had it published by a POD publishing company in east coast. The Author-publisher contract was signed in California.

Few months after publishing, I asked for the number of copies sold. The publisher responded 12. This number was not correct because a friend alone bought 48 copies for his class.

I sent a Cease & Desist letter, the publisher acknowledged and also removed my novel from their database. Two months passed and I still purchased 5 copies of my novel online.

I cannot afford a lawyer. I contacted Pro Bono and few other free legal help sources but so far could not get much help. To date I have not received any royalties and the publisher is not responding to my emails anymore.

Thank You.

A – You should have an attorney look at the contract and have them draft a letter demanding an accounting. If you know that you have sold at least 50 copies (including ones you bought) and have not received anything whatsoever, you definitely need to put them to the fire. It’s difficult to fight this on your own, but don’t be discouraged. If this company isn’t a fly by night publisher, and if they’re doing this on a systematic basis … then plenty of attorneys would be willing to delve into this further. Best of luck!


Trademark usage – when can I use it?

Q – Trademark usage. Hi . after registering a trademark (filling the application) assuming that my trademark is unique, and everything is approved. will i be able to use the trademark, straight after filing the trademark form? thank you.

A – This is a common misconception about trademarks. Trademarks are based on commerce, not approval. You must USE the trademark in commerce, and technically interstate commerce. As a colleague has pointed out, there are two types of applications. One is for trademarks that are not in use yet. However, before those are approved, you must show that you have used the “trademark” in commerce. So, you should use the trademark with the “TM” mark and submit that with your statement of use. (If that is the type of application you submitted). This answer is more complicated than intended. Bottom line–yes, use the mark! You should speak to an attorney if you need further clarification. Best of luck.


I would like to write a truthful (negative) review on yelp and don’t want to be sued

Q – I would like to write a truthful (negative) review on yelp.com about my prior attorney, but I would like to avoid him suing me.

My previous attorney bullied, threatened me when I questioned his billing methods. He also didn’t want to go to court for me, but prefered mediation, which we had already tried unsuccessfully twice. Frustrated, with no results and and grossly inflated bill, I fired him and then he stubbornly took 2 weeks to turn over my file to my new attorney, giving him only 3 days to prepare for my trial.

I feel the general public has a right to know that this lawyer will charge $300 for 5 minute phone calls and intentionally gets hearings continued to bill more hours. However, I understand that attorneys can do an IP trace, and I don’t want to be sued for libel.

A – As a colleague has already suggested, you may want to contact the State Bar of California regarding his “threats” and the handling of your case. Even with a successful result from your successor attorney, the behavior of your first could be conduct that may be disciplined. I would view that not as an alternative to posting on Yelp, but a complementary avenue to explore.

As to Yelp, truth is a valid defense to any claim for libel. If you do not violate Yelp’s terms of use, are careful with how you phrase your opinion, you will have a very defensible case. (Of course, no one can guarantee you not being sued by an irate person whose threatened you in the past, but you’d have valid defenses.) As to the grossly inflated bill, you may want to explore mandatory fee arbitration, which exclusively hears fee disputes between clients and attorneys. If you are in San Diego, the local bar association has a fee dispute system in place that you might want to explore:

https://www.sdcba.org/index.cfm?pg=AttorneyClientFeeDispute

Speak to an attorney to explore all of your options. Best of luck.


Can writ of attachment documents be served via fax to defendant?

Q – Can writ of attachment documents be served via fax to defendant?

I know it requires 16 court day notice prior to hearing. Stanley Mosk attorneys please

A – Generally, no; however, your answer really depends upon knowing additional facts. Have you appeared in the action (meaning filed an answer)?

Usually, Service by facsimile transmission is permitted only where the parties agree and a written confirmation of that agreement is made. Code of Civil Procedure 1013(e).

In lay terms, usually unless there is an agreement between the parties to allow for facsimile service, it is not proper. Again though, this depends upon your facts. Also, is facsimile the ONLY way it was served? If this is a civil writ of attachment hearing in Stanley Mosk, it sounds as if such service will be deemed improper. Double check with an attorney to be sure though. Best of luck.


How can I use real European soccer club names without violating trademark laws?

Q – How can I use real European soccer club names without violating trademark laws?

I am developing a football game/social network for the iPhone here in the United States. I would like for the application to be able to allow the user to “play” for any club of his choice. It would be like the user is displaying his allegiance for a club. In this scenario, would it still be trademark infringement if I used the real names of European clubs (Real Madrid, Liverpool, etc.) to allow the user to show his support and “play” for a club.

I would only be using club names. I would not be using any logos, or any other graphical material that could suggest an endorsement or association with the clubs. That is in other words, the only thing that could possibly get me in trouble would be using the club names in pure text form.

A – As an attorney, I’ll have to agree with my colleagues; however, as a soccer fanatic who happens to be an attorney, I’d say don’t give up and contact the Football Data Co. (again) and FIFA’s licensing company and see (1) if they might grant a license for you or (2) if you could get something in writing setting forth what they would allow or not allow you to do if they indeed said you do not need a license. From your facts, I’d suggest you likely do. For example, even if you’re just using the text word “Liverpool,” but put it in red font (team color), you have a problem. And, what about teams who carry names that do not denote a city, such as Queens Park Rangers or QPR? Seeing them in a game could raise false sponsorship/endorsement issues. Of course, there are always disclaimers to disassociate yourself from these, but be on the safe side and take it further by contacting the licensing companies.

Also, you mention that it’s more than a game, but also a social network. That opens up some possibilities for you, as nominative fair use could be in play. However, you should speak to an attorney so that he can recommend a course of action with all the detailed facts of your endeavor. Likely, you should submit a proposal/request to the licensing entities for your network/game. Believe me, if it’s a project that would add value to their brands, you may very well receive one without too much issue. And, if they say you don’t need one and you have that in writing, it’d go a long way considering they’d be the ones suing you. Simply moving forward without attempting to get permission would be the worst thing, as it could see you get shut down quickly. Best of luck.


Do I have to file the CIV-110 with my Answers and Affirmative defenses…

Q – Do I have to file the CIV-110 with my Answers and Affirmative defenses if I want the Judge to consider dismissing the case?

Or can I just file the Answers and Affirmative defenses? This is an unlimited Superior Court civil case.

A – No. A judge will not simply dismiss a case when you file an answer and affirmative defenses (he won’t consider it or even see it). CIV-110 is not applicable if you are defendant and filing an answer.

However, if you wish your case to be dismissed, you may not want to file an answer as you may risk waiving a particular defense or procedural remedy you may have. All of this depends upon the facts of your particular situation, so it’s difficult to answer here. I would suggest speaking to an attorney to determine whether an answer is indeed what you wish to file here. Best of luck.


“Seeks Legal Conclusion” – a valid objection to discovery request?

Q – “Seeks Legal Conclusion” – a valid objection to discovery request? Is ‘Seeks a Legal Conclusion” (i.e. instead of seeking a factual statement), a valid objection to a discovery request??

A – Just to add onto the answer already provided, however, simply stating an objection does not trump the duty to answer the request.

Not sure from your question, but there are plenty of times when attorneys will state blanket objections and fail to satisfactorily answer the question (especially against in pro per parties). If you have a situation that the request is being objected to and not answered, you need to follow up and get the question answered. Basically, in the discovery arena, the only valid reason to not answer a question is based upon a privilege (exceptions apply, but “legal conclusion” falls outside of this).

Of course, a lot of this is dependent upon the type of discovery request you seek an answer for–written discovery (which type), oral deposition, etc. You might try and seek an attorney for limited representation in your case for discovery issues only. Best of luck.


Form to file to get an extension to find new counsel?

Q – Form to file to get an extension to find new counsel bc my attorney abandoned my case with a pending MSJ?

I have a medical malpractice case filed. My attorney said he wants to withdraw from the case a week ago. I was surprised to learn today that he had notified defense that the case will be dismissed without my agreement. I did not want to dismiss and find other representation instead. He also me today that, unbeknownst to me, a motion for summary judgement had been submitted on November 17th, 2011. And that the deadline for opposing it is this coming Monday. Can I file for an extension myself based on these circumstances to allow myself time to find alternate counsel?

A – If you have not signed a substitution of attorney form, your attorney has an obligation to file an opposition to the pending summary judgment motion. If you have signed a substitution of attorney form, then the duty falls to you and your new counsel.

Assuming that you have not signed such a substitution, you need to emphasis to your attorney that he is ethically and professionally obligated to continue being your advocate and not do anything to withdraw from your case such that it prejudices your interests–which would be exactly what would happen here. He also cannot request a dismissal of your case without your permission.

While not understanding fully your factual scenario, it does seem that you need to demand that this attorney continue representing you at least with the MSJ opposition. If he does not, you will need new counsel to move to continue the MSJ hearing, which is problematic in itself.

Assuming your current attorney is still counsel of record, he may have a difficult time moving to withdraw from the case given that your trial date is quickly approaching. Personally, I would make him move to withdraw from the case, not just tell you he’s going to walk away from it (can’t do that). What were the reasons given for the wish to withdraw? If this is med mal, has there been experts designated? You have many issues that you will be facing here, including possible professional responsibility violations and legal malpractice if it indeed go there.. This is certainly a problem you need to seek counsel for immediately. Best of luck.


Is it okay to use the space needles logo on a t-shirt design and sell it?

Q – Is it okay to use the space needles logo on a t-shirt design and sell it?

im entering a t-shirt design competition and part of it has the space needles design (to show the store is in seattle) is this legal? how can i make it be legal?

A – Yes, you can use the design in your own original artistic work. That’s the simple response; however, your question can become complex depending on other facts that might be in issue. Essentially, under U.S. law, copyright in an architectural work that has been constructed does not include the right to prevent the making of pictures, paintings, photographs, or other pictorial representations of the work by others … if the building in which the work is embodied is located in or ordinarily visible from a public place.

So, you shouldn’t have a problem; however, you should still seek counsel/advice from someone in your area to fully show and explain what your design is. Best of luck.


Do I file for a motion to dismiss?

Q – Do I file for a motion to dismiss?

This was a credit card debt that the plaintiffs said I owe, I requested discovery and interrogatories with no response…I filed a motion to compel, noone from the plaintiffs side showed up,the judge said that I did not request discovery on the right form however he did grant to compel they answer the interrogatories which asked for any proof of the debt and gave them 20 days…which is now long past and I have not received anything. Court is soon. Is there any other forms I should submit or just show up to court? at this point I doubt the plaintiffs will show, if they don’t do I ask for a dismissal or is there another form I have to submit to request the dismissal?

A – First – kudos to you for tackling this legal matter on your own and hopefully to a successful result. Unfortunately, in order to answer your questions, more information would be needed; however, assuming what I can from this and that this is a civil matter in OC Superior, there are a few options:

1. Just show up. You can just show up to court and report the failure to respond to discovery despite a court order. If the 7th is already for an OSC (Order to Show Cause) regarding the discovery, there is a chance that the judge will either set a hearing date for terminating sanctions or enter terminating sanctions outright (depending upon the time, the proof of notice to the plaintiff, and other factors). That’ll take care of any motion to dismiss.

2. File a document depending upon what type of hearing you have: If your hearing on the 7th is a CMC (case management conference), you need to submit a case management conference statement (form CM-110) on or before January 23rd (15 days before date). This form will provide for space to discuss matters you need to report regarding the dismissal.

Even if you don’t have a CMC on the 7th, you still can submit a declaration to the court detailing what has transpired since the court’s order. Generally, a declaration (like an affidavit) is put on legal pleading paper; however, California has a judicial council form (form MC-030) that you can use. You should submit the declaration around the 23rd as well and, as with anything you file with the court, you would have to serve it on the other side.

3. Motion to dismiss. Again, assuming this is OC Superior civil, a motion to dismiss won’t be calendared in time, i.e., before your 2/7/12 court date, as such a motion would require at least 16 court days’ notice, which would of meant filing last week at the latest. Of course, there are ways around it, but that’s not important now. At the very least, show up (duh right?), but consider filing a declaration and/or a CMC statement depending on what type of hearing is set for that date.

FYI – As to any case where there are terminating sanctions or a dismissal involved, the court will scrutinize service on the plaintiff. So, you should speak to someone at the help desk in OC Central to assist you there. You should also speak to an attorney for a more detailed analysis. Best of luck.


Is it problematic to sell accessories for a trademark branded product?

Q – I want to sell accessories for a trademark branded product (a doll) but I do not want to infringe in my marketing.

First, is it problematic to sell accessories which are catered to a trademarked and branded product? Second, can I market my accessories using a picture or the name of this trademarked product as long as I disclose that we are an unrelated company? Lastly, can we state that our product “fits” or is an unofficial accessory for the trademarked product (with above disclosure)?

Thanks for your help, it will be difficult to market this product without stating that it is an accessory for this trademarked product but we don’t want to break any rules.

A – Yes, it is problematic because there is a fine line that one must walk between trademark infringement and what is commonly known as “nominative fair use.” Nominative fair use occurs when one refers to another trademark to describe that party’s goods or services.

This defense is best exemplified by parts manufacturers (we make Porche parts) and repair services (we repair Volkswagons). The fine line comes because although courts agree that there are many cases when one company should be able to refer to another’s trademark, not all courts agree on what test would apply.

In California, where the defendant uses a trademark to describe the plaintiff’s product, rather than its own, a company will have to meet three requisites for nominative fair use. First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

So, the disclaimers and disclosures you propose will be necessary and vital. You should consult an attorney before launching full blown into the marketing campaign. Best of luck.


What state has jurisdiction over internet defamation?

Q – What state has jurisdiction over internet defamation?

If a California company or California individual is defamed by some one in Georgia, where would the plantiff(s) file suit?

A – Simply put, you can sue in California; however, you would most likely be confronted by a motion to quash service from the Georgia defendant for lack of personal jurisdiction.

The court will then determine the issue by using what essentially is called an “effects” test to determine whether or not it can exercise personal jurisdiction over the person in Georgia. The “effects test” can only be satisfied if the plaintiff can point to contacts which demonstrate that the defendant expressly aimed its tortious conduct at the forum (i.e., California), and thereby made the forum the focal point of the tortious activity.

Without going into the legal mumbo jumbo of all of it, this is a fact intensive question that is dependent upon many factors, including the type of website the defamatory statement appears on, whether there were multiple statements, and many other questions that you would need to seek counsel for.

Also, defamation cases in California are tough cases. If the statement is such that it violates the website’s terms of use, you may first want to start off demanding that such defamatory statement be removed. Again, all of that depends on your particular facts though. Best of luck!


Who is suppose to fill form I-485 and form I-130?

Q – Who is suppose to fill form I-485 and form I-130?

My husband is U.S. citizen and i am not and we are trying to arrange all my paper work here in the us. Thank you

A – If you wish to concurrently file for both yourself and husband, you probably will need to submit the following forms:
I-485, Application to Register Permanent Residence or to Adjust Status
G-325A, Biographic Information
Your original I-130, Petition for Alien Relative (if you are filing concurrently), or a copy of your I-797, Notice of Action (if the petition was already approved).
I-864, Affidavit of Support
I-693, Medical Examination of Aliens Seeking Adjustment of Status
All required supporting documentation as listed on the above forms. …

You may also submit the following forms:
G-28, Notice of Entry of Appearance as Attorney or Representative (if you have a lawyer)
I-765, Application for Employment Authorization, if you want to work while your application is processed
I-131, Application for Travel Document, if you need to travel outside the United States while your application is processed
I-485 Supplement A, and penalty fee if applicable. See 8 CFR 245.10
I-601, Application for Waiver of Grounds of Excludability, if applicable.

Of course, each case and set of facts may have some nuances that may change the above, and you should always speak to an attorney before submitting any paperwork. Best of luck to you.


Lender using false tactics to discharge active participants out of HAMP program

Q – Lender using false tactics to discharge active participants out of HAMP program.

i am/was a participant of the hamp loan modification process with my lender. my 3 month trial period began june 1 09 . ive submitted all paperwork requested multiple times and on november 23, 2009, i was doing my usual follow up to ensure docs had been received and the agt who answered was in the collections dept. and told me i had been dropped from the HAMP program because they never received my 3rd HAMP payment which was due august 09. i told the agent when the cashier’s check was purchased, faxed them a copy of the check, the humber and my bank statement showing the purchase. they have placed a sale date of 1/6/10 on my property and no investigation is being done. what can i do?

A – Is your lender IndyMac/OneWest? They are notorious for these types of stunts. If you have solid proof of your third payment then your (or an attorney’s) continued tenacity is your best bet to stave off the sale. The sale date can be postponed while they sort out this mess; however, their willingness to sort it out is entirely dependent on the mood of the person you are speaking to. If you receive no cooperation from the lender, then I would suggest speaking to an attorney about filing a complaint on your behalf for wrongful foreclosure and other equitable claims.


Book Cover has 55 year old picture with a Coca-Cola sign. Is this legal?

Q – Our new book cover features a fifty-five year old picture of a country cafe with a Coca-Cola sign. Is this legal?

The picture was taken of my grandmother’s cafe in Sligo, KY, where I was a child. I grew up in this cafe. There is also a Texaco sign in the shot.

A – The first question would be who took the picture? I am guessing that someone in your family took it or someone who has no problem with you using it for a book cover. I mainly read your question as inquiring about the Coke and Texaco signs.

If you are concerned that Coca-Cola or Texaco will be coming after you, I highly doubt it. The picture is of your family’s cafe, and the signs are not the prominent part of the shot.

Generally, photographs taken that include trademarks in them are generally safe when those trademarks fill only a secondary or background role of the picture itself. In legalese, trademark infringement could occur when the coca-cola sign or Texaco sign would (1) confuse a consumer as to the source of origin of the usage in some way or (2) dilute the value of the trademark in the marketplace. I just don’t see that here given your facts.

One example where a book cover included a logo that could have been trademark infringement was a biography about Milton S. Hershey. As you will see, the book cover itself is a photograph of a hershey candy bar. Given this is not even remotely close to what you’ve described, I would say that you’re safe.


How to obtain payment from an ex for appliances purchased on my credit card?

Q – How to proceed to obtain payment from an ex-boyfriend for appliances purchased on my credit card that he agreed to pay off?

We were together and he was redoing his kitchen. He asked me to open a home deopt card to put the appliances on. His was reaching the limit do to the remodel. He agreed to pay off the balance completely. The card was accepted and had no interest, no payments for 12 months. He made one payment while we were still together. We have since split. I sent him communication by email asking for payment of the bill. He is refusing to pay; saying it is “repayment” for “dating” (in short form). There are quite a few more circumstances to be explained, but this is the main focus. I have the original receipts for the appliances and proof that he made a payment from his account. what can I do to receive payment?

A – Obviously, the “more circumstances” do need to be explained; however, you may be able to proceed for breach of an oral contract and the various other causes of action that arise from this type of action.

One problem that you must be mindful of whenever a girlfriend agrees to do anything for a boyfriend monetary wise is that it may be perceived as a gift. In this case, however, you say he asked you to open a home depot card, he agreed to pay you for this, and based on his promise, you did. With these facts, I would say that you can proceed against him for breach of an oral contract entered into between the two of you.

Depending on the amount, you can bring a lawsuit against him in small claims or also in limited jurisdiction, depending on whether you use an attorney. I would assume this would be a small claims case. Again, the other circumstances you mention may change the above, but that is my initial thoughts. Best of luck.


When can the courts still be used in a dispute resolution?

Q – When can the courts still be used in a dispute resolution?

If my company`s sales contracts did include a dispute resolution (other than letigation) clause,when can the courts still be used?

A – Essentially, courts can always be utilized to resolve a dispute; however, how far you can go through the court system depends upon three main considerations: (1) the language of the dispute resolution clause itself; (2) the validity of the contract; and (3) the type of claim that is at issue.

Parties often file a lawsuit first in court, and the other side will then have to move to stay the action in favor of the dispute resolution process set forth by contract. By not moving to stay, a party sometimes may waive this contractual right.

Parties also often agree to stipulate to settling the dispute in court rather than through dispute resolution. Although dispute resolution continues to be a popular way to resolve disputes, it is in many ways just as expensive as going to court. Although, it is still generally much faster.

Also, even if there is a dispute resolution clause in place, most states, including California, will allow a party to bring an action in court to preserve their provisional remedies while the dispute resolution process takes place. Should your dispute have the possibility of a writ of attachment (very possible in a commercial breach of contract action), both the dispute resolution process and the court action can coexist to a certain extent.

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