August 15, 2010 in Business, Legal Articles by jferris

Protection That Trademarks Offer Businesses Is Essential

Many business owners don’t realize there is a difference between a trademark and a trade name.

Despite the fact that many business entrepreneurs know their stuff inside out, many of them still get hung up on the difference between a trademark and a trade name. “The trademark is considered to be a branding tool and it will identify ‘their’ goods and services as being uniquely theirs – thus distinguishing ‘their’ goods and services from others in the marketplace,” clarified David Alden Erikson, a Los Angeles business litigation attorney.

On the other hand, a trade name is a business name, and it’s normally registered with the Secretary of State where the business is incorporated. The name basically identifies the business for the purpose of incorporation. “The thing to remember here is that just because you may successfully register a trade mark, does not mean you have additional trademark protection. The truth is that there a quite a number of trade names filed that conflict with existing trademarks, which means if they are used as marks they may result in a lawsuit for trademark infringement,” summarized Erikson.

“When a business registers a mark related to a ‘service’ and not a product, it is generally called a service mark. But, just to throw a spanner into the works, a service mark (legally speaking) is the exact same thing as a trademark. Thus, you have the leeway to trademark a company name, slogan, logo, product name or some other symbol that may be associated with what you offer to consumers. By the way, you may want to combine any of these categories (say a slogan with a company name) and call that your trademark,” Erikson advised.

The origins of trademark law are rather interesting. They came about as a companion to the unfair competition law – something that protects businesses against the unscrupulous doings of other companies. “Trademarks are also related to intellectual property rights, copyrights and patents. For a further explanation, I’d recommend you talk to a Los Angeles business litigation attorney,” suggested Erikson. Federal patent and copyright protection is in place to protect a business from other people copying their ideas. Trademark protection is in place to protect consumers from copying a businesses’ ideas.

“If you want a strong mark that will hold up in just about any situation, then give me a call. We’ll talk and I will walk you through what you need to do to accomplish your goals,” added Erikson.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

August 15, 2010 in Business, Legal Articles by jferris

Flogging May Prompt a False Advertising Lawsuit

In a world of acronyms gone mad there is now flogging to wrap one’s head around. Flog is a fake blog.

Who hasn’t landed on a fake blog style website at one time or another? The problem is, not everyone knows they’ve landed on a flog. Typically, a flog deals with false advertising and unproven claims with fake testimonials. “It’s the latest way to scam money from unsuspecting surfers. Why is this important to know? It’s important to know because this practice is just beginning and lawyers need to be in a position to provide advice to advertisers and consumers about these sites,” explained David Alden Erikson, a Los Angeles Internet law attorney.

“When advising an advertiser, I’d tell them that flogs may leave them open to both civil and/or criminal liability according to federal advertising laws and FTC rules. Yes, truth in advertising, honest and legit testimonials, etc., may reduce liability for false ads, but it’s important people ‘know’ their boundaries and save themselves a potentially expensive lawsuit,” commented Erikson.

As for consumers, if they are sucked in and buy goods or services from a flog, they need to know that they may have a remedy available to them. Any harm done to a consumer may mean they can file a lawsuit. “This area of the law is so new, it is literally developing as you are reading this news release,” Erikson observed. One thing is for sure, the FTC is working on ways to protect consumers from these schemes and scams.

The biggest risk with many of these flogs are the claims made on them enticing someone to take a significant financial or legal risk. “It’s hard to not want to spend money on something if you think that the celebrity endorsement you just read is legitimate and the product claims sound reasonable,” he added.

For those companies who want and intend to run an honest business online, they need to talk to an attorney familiar with Internet law to find out how to use testimonials, why they need proper disclosures and what things to avoid if they don’t want to get slapped with a false advertising lawsuit or investigated by the FTC.

“Without over simplifying things here when it comes to flogs,” said Erikson, “it’s important to remember one simple rule to do business by, and that is always remember that truth in advertising is crucial and must come before all else,” he reiterated.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

August 15, 2010 in Business, Legal Articles by jferris

When Knockoffs Can Be Deadly

Thanks to modern technology, knockoffs or counterfeits are made fast. Fast may also mean defective and deadly.

Over the last ten years the world marketplace has expanded exponentially to meet the ever increasing demands of consumers worldwide. With more efficient communications, better software and technology, sophisticated equipment and greater investment in the manufacturing sector, global trade has exploded. Did you know that the Department of Homeland Security revealed that 81 percent of all counterfeits in the U.S. come from mainland China?

Most people think that the increase in availability of various goods is – well, a good thing – totally ignoring the reality that some of those goods may be counterfeit knockoffs. While the knockoffs may very well be less expensive than the originals, they are not as well made as the originals (that’s why people pay big bucks for the original in the first place.) Not worried about that? You should be, because making counterfeit items is not only illegal, it is an incredibly dangerous risk for people who buy those products later. This relates to defective products.

Generally speaking, most manufacturers do a good job of quality control for their goods. If something does get messed up, a recall will totally tank that company’s reputation and affect their sales. One only had to look at recent baby accessory recalls to know that is true. That aside, one thing is brutally clear when it comes to bootleggers or counterfeiters, most of them have no clue (nor care) what the technical niceties are when it comes to making various goods.

They don’t know how to make sure seams don’t rip, that zippers work, that baby toys won’t choke a baby or how to keep the dyes from leaching out of fake leather goods. In short, their only concern is getting something out on the market as fast as possible that looks OK and is cheap. Looking OK and cheap is one thing; whether or not that product works, will last or won’t harm someone is another can of worms entirely.

Knockoffs are not just clothing, shoes, handbags and jewelry. They can and do include things like exploding fake Zippo lighters, fake diabetic strips that may not give accurate readings and fake power cords, power strips and night-lights that may fail. While those may be the smaller things in life, there is more bad news. The latest media reports include stories about how fake/counterfeit computer components from China are winding up in US ships and warplanes. Gives one pause for thought, doesn’t it?

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

August 14, 2010 in Business, Legal Articles by jferris

Texas Employer and Employee Are Equal in Bargaining

Texas is noted for being a state with the ‘most’ employer friendly employment laws. Employers and employees are equal in bargaining.

Even with the legal notion in Texas that the employer and employee are equal in bargaining, there are still some rules that companies must follow. For example, although they may terminate a worker at anytime for any reason, that reason may not involve discrimination. There may also be other exceptions that involve a contract signed by the company and the worker.

“Texas subscribes to the legal notion that the employee and the employer are equal in bargaining. While this sounds good, often in reality, employers tend to have more bargaining power than workers. There is an exception or two to that scenario and under a specific set of legal conditions, Texas workers may file for unlawful termination,” outlined Ty Gomez, a Dallas business lawyer who writes for the Dallas based Gomez Law Group.

Unlawful termination may be a cause of action in two primary circumstances in Texas. For instance, if a worker was told to do something illegal and they didn’t do it and got fired because they did not do it, this may result in a cause of action for the employee. The second avenue that may be taken for unlawful termination would be discrimination. “Be aware that discrimination lawsuits rarely succeed unless the discrimination involves a protected class; e.g., gender or religion,” commented Dallas business lawyer Gomez.

“Even if you have been asked to do something illegal, and didn’t do it, you must prove you were asked to do something illegal. In other words, you (the plaintiff) have to present evidence you were ordered to do an illegal act. If this has happened to you, you need to have as much evidence as possible before you no longer have access to it. There are two reasons for taking this precaution, the first is that having evidence will likely net you compensation for unlawful termination and bring a ‘crook’ to justice,” Gomez observed.

The bottom line in cases that deal with unlawful termination is that if the person has been let go because of an employer’s discriminatory actions or because that individual said no when asked to do something illegal, they may be able to obtain compensation for their losses. Always make it a point to talk to an experienced Dallas business lawyer to find out how to proceed in an unlawful termination case.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

August 14, 2010 in Business, Legal Articles by jferris

Being Accused of a Crime Is Not Grounds for Firing in Texas

Employers in Texas need to know what constitutes illegal discrimination. Being informed may avoid a lawsuit.

“When it comes to employment law in Texas, there are two forms of illegal discrimination that you need to know about for your business. The first thing is you can’t decline to hire or promote an individual because of certain characteristics. The other thing to be aware of is how you handle termination. If you aren’t careful, you may end up being sued for wrongful termination if you fire someone because of certain characteristics,” outlined Ty Gomez, who writes for the Dallas based Gomez Law Group.

In Texas it is illegal to discriminate against someone because of their race, sex, national origin, disability, religion or age. “Granted, the law does not specifically mention sexual orientation as being an illegal reason to fire or not hire. However, it ‘is’ illegal for employers to ‘ask’ about a prospective worker’s sexual orientation, or family life for that matter,” Gomez explained.

Employees should also be aware that there are some characteristics that are not protected. An example would be that it is considered legal for a boss to refuse to hire a person with a criminal record. It is also legal if that same employer fires a current worker if they find out the employee has a criminal record.

“There is an important distinction to be made here though,” added Gomez. “It is illegal to ask questions about arrests or any possible accusations during the course of a job interview. Put another way, being accused of a crime does not mean the person ‘is’ guilty. This means you may only ask about ‘convictions,” he added.

In this day and age when immigration issues are such a hot topic, it is considered legal to ask a prospective new hire about their legal status as it relates to work and also about any accommodations the worker may need to do their job. If a worker is not able to do the job they are applying for without “reasonable” accommodations, it is not discrimination if they are not given that position.

“Texas is an ‘at will’ state, meaning employees are considered to be at will. What that means is a worker may leave a job anytime they want to and for any reason. That works both ways though and the employer may let a worker go at anytime for any reason, provided it does not fall under illegal discrimination. This is why it is vital that you know the employment law in Texas and stay compliant,” Gomez explained.

Are there exceptions to at will employment? “Yes, and they’re both related to any contract an employee and the company may sign. For example, signing a contract that states the employment term lasts for a determined period of time, or that the worker may only be fired under specific circumstances. If the parties sign this contract, the company has to keep the worker until the specified length of time expires or it violates the contract. And, the worker must keep working until the contract runs out,” stated Gomez.

Employment contracts must be extremely specific in Texas and if there is any doubt about how they should be worded, it is critical to seek experienced legal counsel to avoid a lawsuit.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

August 14, 2010 in Business, Legal Articles by jferris

Double Collecting Is Consumer Fraud

Buying a car even if you haggle down the price will still cost you more than it should with this scam.

Ever bought a car and thought you got a really great deal – until you added up the costs later? Beware of a very common scam car dealerships use to make extra cash from their customers; often as much as between $500 to $2,500. The amount you pay out toward the scam is largely dependent on what you are willing to spend. The really annoying and underhanded part of this consumer fraud scheme is that the money you get asked for later is money the dealerships recover from the factory. Put another way, you are being overcharged for something the dealership ultimately gets back.

Here is how this scheme works. You have haggled the price of your car down to what you are willing to pay. So far, so good. Then, you get hit with the line that the dealership is trying to recover their losses when they discount the manufacturer’s suggested retail price (MSRP). So, they attempt to tack that on to the price you have already agreed to pay. Many people do pay the extra $500 (or more) in something called “pre-delivery service fees.” This is a scam, because it’s these fees that the dealership can recover from the factory later.

Here is what the “prep” fees are supposed to cover: taking the plastic off the seats (not a terribly hard endeavor), double checking fluid levels, taking a vacuum cleaner to the interior and washing and waxing the exterior. All in all, that may take about 2 hours or so. If the dealer tells you that you have to pay for it, stick to your guns and say no, because this service is already included in the MSRP. If you “do” pay for it, the dealership has just pulled off the double collecting scam.

Surprisingly enough, this practice is fairly widespread, largely because consumers are not that well informed about how to buy a car and what fees are involved. What happens if your refuse to pay the prep fee? The best way to handle this situation is to just tell the dealership to credit you the amount of the prep fees on your contract. Many dealers will refuse, and that’s fine, as your next move is to walk out. You won’t be losing anything at that point.

Is this double collecting scam legal? Unfortunately, yes, it is legal for a car dealer to pad the prep fees on your final bill. However, if you “know” before you go that the prep fees are already included in the MSRP, you can save yourself anywhere from $500 to $2,500. If you have been a victim of this scam, report them to the Better Business Bureau and get the complaint on record. You may save someone else the hassle of being double billed for no good reason other than greed.

Ty Gomez writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

August 14, 2010 in Business, Legal Articles by jferris

Escrow Closing Fee Kickback Frauds Common

If you’re buying a home, make sure you are well informed about closing fees to avoid fraud.

For those of you who are considering buying a home, there are a lot of expenses involved and you need to know about them so you don’t get any nasty surprises later. Unfortunately, there is something else you should know as well and that is about closing fees kickback fraud. This is far more common than you might think, so make sure you are well informed about every financial detail you need to deal with during closing. If you have questions, then contact a Dallas business lawyer.

While federal investigators have put a crimp in several underhanded closing fees kickback rings, these scams/frauds are still rampant in the industry. Unfortunately, kickback fees are really simple for a less than honest real estate agent to pull over on an unsuspecting buyer. Try and avoid situations like that by being an informed buyer.

One way to pull off closing fee kickback fraud is to have a real estate agent set up a corporation that buys an interest in an escrow and title insurance company. Then, a group of rip-off artist home builders set up the same type of corporation and also have an interest in the escrow company. What happens next is the real estate agent and the home builders then refer their clients to their “own” title companies. The title company then pays a finder’s fee/kickback from a percentage of the title and settlement fees to the agent and builder. Slick as heck, not to mention unethical, immoral and illegal.

Padding closing fees is another area you need to be careful of when buying a house as well. Title companies, once they’ve already pulled off their kickback scheme, also tend to seriously pad closing fees. This type of fraud has the full attention of the Department of Housing and Urban Development (HUD). In fact, the department actually has a unit dedicated to real estate settlement oversight – a polite way to say scam/fraud.

Be on the lookout for failure to reveal the true settlement costs, if you get told at all. You need a HUD-1 before closing. If you don’t get it, watch out. You also need to be cautious about companies underestimating settlement costs. They could be doing this intentionally to deceive you. This is like bait and switch at some huge retail shops; you get attracted by a low upfront price which suddenly escalates once you are a customer.

There are many other things you need to be aware of when buying a house, including jacked up fees and kickbacks to the lender. When in doubt about what is going on during your house closing, contact a Dallas business lawyer. Not only will they be able to tune you in, but explain what you need to do to avoid being scammed.

Ty Gomez writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

August 12, 2010 in Business, Legal Articles by jferris

How to Sell Your Scripted/Unscripted Show Idea

Selling show ideas in Hollywood is no easy feat. It not only requires the ability to create a great pitch, but also the know-how and willingness to follow established procedures for selling a show.

In order to sell a show idea, it’s necessary to create a great pitch. There are several elements that should be included in a pitch: a logline, a synopsis, and a treatment. A logline is a one-sentence description of the show. A synopsis is a brief summary of the show including information about the main characters and the theme of the show. A treatment is much like a synopsis of a show idea but is a more inclusive document which includes detailed descriptions of the characters and the show’s plot. Writing a treatment is an essential step as it is the primary medium through which show ideas are typically presented to TV producers and executives.

As an artist, you will want to determine which networks to submit your show idea to. You will want to consider the nature of your programming and whether or not it is in alignment with the types of shows each network produces. Once the appropriate networks have been identified, you should learn the submission guidelines for each. Some networks may accept unsolicited treatments and show pitches but, these are of the minority. The majority of networks require artists to have an agent or even an entertainment lawyer acting as his or her representative. Knowing and following the proper procedures for each network is an essential step in increasing an artist’s odds of having their show idea accepted.

Now, it is no secret that securing an agent can be a very challenging task. In order to overcome this challenge, artists must be willing to network; they should consider engaging a credible, proven manager and; they would be wise to also consider developing a more formal, strategic plan for success with their entertainment attorney.

For artists who are able to secure an agent, he or she can help connect them with development executives – individuals who have the power to turn ideas into paychecks. When meeting with a development executive, artists must be able to accurately convey the concept of their show in a manner that is simple yet intriguing. This is where a well-written logline, synopsis, and treatment come into play. If an artist has taken the time to prepare these documents properly, the executive will be able to see the show’s potential.

Once an artist successfully pitches a show idea, it is more likely to be optioned for purchase. At this stage, an artist should utilize the expertise of their entertainment attorney to help negotiate the specific terms of the agreement. Most often, the writer will be paid an option fee up front for the company to have the exclusive rights to sell and/or produce the project with a network or third-party buyer. Once the option is exercised, the writer will then receive the negotiated purchase price and may additionally receive a small percentage of participation in the fees received by the production company for producing the show. Navigating these negotiations can be difficult and an experienced entertainment attorney can offer artists the guidance they need to successfully sell their show ideas.

To learn more, visit http://www.spotoralaw.com/.

August 12, 2010 in Business, Legal Articles by jferris

The Law Offices of Spotora & Associates Introduce the Virtual Lawyer Program

Los Angeles law firm, Spotora & Associates, PC, has introduced, “Virtual Lawyer,” a revolutionary new program that provides users with easy access to quality legal advice. Using video conferencing technology, Virtual Lawyer provides a legal solution that most would agree is not only needed, but has been lacking for years.

Oftentimes, individuals have only one or two quick legal questions to ask and wish they could get a simple yet reliable answer from an experienced attorney without going through the hassle of making an in-person appointment or worse, tendering a large retainer and formally establishing a long-term attorney-client relationship. The problem is, the Business & Professions Code, along with most State Bar Ethics Rules, including California, can prohibit and/or heavily warn against lawyers from lending legal advice in the absence of an attorney-client relationship. To resolve this dilemma, Spotora & Associates created their Virtual Lawyer program. The program provides potential clients with a simple means of establishing a temporary attorney-client relationship and meeting with an attorney face-to-face using videoconferencing technology, at an extremely affordable price.

Don’t like videoconferencing or don’t have it available? No problem. Once the temporary attorney-client relationship has been formed via Spotora & Associates’ website (www.spotoralaw.com/virtual-lawyer), the legal advice needed can be provided over the phone! Users can have their legal questions answered in a timely fashion, no matter where they are in the world.

It was the firm’s CEO and Managing Attorney, Anthony Spotora, who developed the concept. When interviewed on the thought process that led to such a method, Mr. Spotora shared, “After 10 years in business, one issue that consistently presented itself was callers seeking an answer to only one or two legal questions. Time and time again, we explained like a broken record that we were governed by laws and rules that limited the extent to which we could assist them in the absence of an attorney-client relationship. Even the infamous “Free Consultation” offered by most firms is intended to stop short of actually offering legal advice. Alternatively, up to the point of establishing a formal attorney-client relationship, free consultations are meant to only determine the issues raised by the facts presented, qualify that the lawyer or law firm is competent to handle the matter, and see if the parties are a good “fit.” I decided it was time to develop a solution to this repetitious issue and fortunately, the technology was available to do so. Hence, our ‘Virtual Lawyer Program.’”

To participate in the service, Virtual clients fill out and submit a short meeting request form on Spotora & Associates’ website (www.spotoralaw.com/virtual-lawyer) that details the topic they’d like to discuss, their preferred meeting time, and the video chat format that works best for them (unless they elect to be advised by telephone only). Virtual clients can then choose a 20 minute, 40 minute or hour long meeting package and, if their meeting request is accepted by the firm, they can make a payment through a secure payment gateway that will be provided to them by e-invitation. Based on the information provided, Virtual clients will then be able to chat with a senior-level attorney who has the experience and expertise to answer their legal questions.

Spotora & Associates’ Virtual Lawyer program is intended to give users the peace of mind necessary to make sound decisions in their personal and professional lives. This cost-effective legal service is ideal for those who have limited legal needs and do not require full-service representation. Users can proceed with confidence, knowing that they have consulted an experienced attorney without ever having to leave the comfort of their own homes.

Should Virtual clients decide to extend their relationship with the Law Offices of Spotora & Associates at the end of their Virtual Lawyer session, they have the option of requesting that their Virtual Lawyer payment be applied to the first hour of in-person, full service work.

Spotora & Associates primarily offer legal advice based on the laws of the state of California.

To learn more, visit http://www.spotoralaw.com/.

August 12, 2010 in Business, Legal Articles by jferris

Understanding the Work Made for Hire Doctrine in Copyright Law

The creative process that is so closely tied to the success of the entertainment industry often raises questions regarding ownership of creative works. While copyrights usually rest with the creator of a work, certain agreements can be made that transfer these rights to another party.

Generally, copyrights rest with the author or authors who originally create a work. However, the Copyright Act of 1976 contains a major exception, the “Work Made for Hire” Doctrine, which challenges the fundamental principle that copyright ownership lies with the individual who creates the work. In the case of a “Work Made for Hire,” the party for whom the work was completed is considered the author and thus holds the copyrights to the work created rather than the party who actually authored the work.

A Work Made for Hire is not, however, any work that you pay someone to create for you. In addition, it is not any work that you and a developer simply agree is a Work Made for Hire. Rather, “Work Made for Hire” is a specifically defined term in Copyright Law and applies only when certain conditions are met.

Disputes over what constitutes a “Work Made for Hire” often arise over two main issues: the distinction between an employee and a non-employee or independent contractor and whether or not the work in question qualifies as one or more of the nine categories outlined in the Copyright Act.

Section 101 of the Copyright Act defines a “work made for hire” as either:

1. a work prepared by an employee within the scope of his or her employment; or

2. a work by a freelancer (independent contractor) which is specially ordered or commissioned for use as a translation, as a part of a motion picture or other audiovisual work, as a contribution to a collective work, as an atlas, as a compilation, as an instructional text, as a test, as answer material for a test, or as a supplementary work such as a preface to a book, a forward or a musical arrangement, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

If the condition of category one is met, copyright ownership belongs to the employer unless an employment contract specifies that the creation of copyrightable material is not within the scope of employment. If the creation of the work falls outside the scope of employment then the employee, and not the employer, would have copyright ownership of the work.

If the conditions in category two are met, then the party hiring the freelancer would own the copyrights. If, however, these requirements are not strictly followed and the work falls outside the nine categories enumerated by the Copyright Act or a written agreement does not exist, then the freelancer would retain copyright ownership in the work.

Los Angeles intellectual property attorney, Anthony Spotora, commented, “It is the lack of a written instrument specifying the intended “Work-Made-for-Hire” relationship with independent contractors that commonly creates “Work-Made-for-Hire” copyright ownership issues. All too often, the intended owner seeks to argue that a “Work-Made-for-Hire” relationship was agreed upon, although it was stated only verbally. Subsequently, authorship of the work at issue ultimately winds up with its creator, rather that the intended owner. The second biggest misperception in freelance arrangements is that a written agreement specifying that a work is intended to be created on a “Work-Made-for-Hire” basis makes it so when, in fact, that is only the case if the work falls into one of the nine exceptions listed in Section 101 of the U.S. Copyright Act.”

Anthony Spotora is a Los Angeles entertainment lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.