Going green can lead to more

Sustainable structures have been found to command a higher price and a higher rent. So, if you are developing or renovating a structure, going green can result in more green in your pocket. The U.S. Green Building Council is a non-profit that establishes certain standard for green building certifications. One well known standard is the Leadership in Energy and Environmental Design or LEED. LEED is a third-party certification program and the nationally accepted benchmark for the design, construction and operation of green buildings. LEED standards focus on human and environmental health, sustainable site development, water savings, energy efficiency, materials selection and indoor environmental quality. State and local governments are also embracing LEED in their construction of publicly-funded buildings. If you are planning to have a structure LEED certified, it is best to incorporate that into your early planning stages. See USGBC.org for useful information. If you are a builder, be sure to obtain the LEED certification if you promise to deliver upon one or you risk being sued. Similar lawsuits have been on the rise.

Mediation

From my weekly (AM) radio segment titled "Legal Minute"

Going to court is a very costly and time-consuming process. So, we sometimes consider mediation for certain civil disputes such as those arising out of contracts, leases, small business issues and divorce. Estranged business partners may choose mediation by which to separate their affairs and divide the business assets. Mediation may also work well in dealing with issues with a neighbor, roommate, or co-worker because it may allow long-term peace to be restored between the parties. In a court action, there will be one winner and one loser. In a mediation, the goal is to arrive at a mutually agreeable solution after allowing both parties to present all issues in dispute. This process can uncover interpersonal issues that gave rise to the problem at hand. The basic process of mediation is conducive to achieving a mutually agreeable result. Opening statements begin the mediation, then are followed by each party’s presentation of their facts, after that, there are private caucuses. Following the private caucuses is the joint negotiation session and then a closing once the resolution of the issue has been agreed.  Mediations can be an effective self-help, low cost measure to dealing with interpersonal civil disputes.

Consigning your works

From my weekly (AM) radio segment titled "Legal Minute"

With the number of art and wine festivals taking place during the summer months, you would think that art and crafts are the great American pastime. Arts and crafts are a popular hobby or line of work for many people so it helps to understand how to consign your work properly so that you are not the victim of an unscrupulous gallery or dealer. There are generally three types of consignments: those under the Uniform Commercial Code or UCC, those under state consignment law and those made under a written consignment agreement. The UCC approach can help protect you if the gallery damages your artwork or goes bankrupt but there are certain requirements that must be fulfilled. Speak with your business lawyer about filling out the appropriate UCC forms to ensure that you are protected. California also has consignment laws which protect the artist or craftsman from losing their works if the gallery goes bankrupt although having a written consignment agreement in place is ideal in order to enforce our rights under these laws. An attorney can help you in crafting the consignment agreement.  Navigating the consignment process isn’t difficult and is well worth the effort when considering the time that went into creating the artwork.

Serving on a Non-Profit Board

From my weekly (AM) radio segment titled "Legal Minute"

Nationally, non-profit organizations are on the rise. One of the key tasks facing a founder of any non-profit is establishing a board of directors to oversee the organization. Non-profits receive favorable tax treatment due to the public interest they serve. The Boards of non-profits serve an important legal function to ensure that the non-profit is remaining true to its mission of service of the public interest. This is why non-profit directors are often called “trustees”. Being asked to serve on a non-profit Board can be a great honor but before stepping into the director role, investigate the non-profit carefully. During these trying economic times, many non-profits are in dire financial straits. Being asked to serve on a Board of a non-profit suffering under financial mismanagement can be a risky move. While the Board itself will not necessarily be responsible for the non-profit’s debt, a Board member may be held personally liable for unpaid taxes and penalties for failure to file returns or properly withhold wages. If there is not adequate Directors and Officers’ liability insurance, it is best to pass on, or resign from, the opportunity to serve on a non-profit Board.

Permission to Publish

From my weekly (AM) radio segment titled "Legal Minute"

These days, web publishing is still big business. The desire to make a website more interesting while working under a budget, though, can drive web publishers to cut corners and consider using material without permission on the grounds that it’s a fair use. You need to remember that the fair use doctrine under copyright law is very fact dependent and certainly cannot be used when the website is a for-profit enterprise. Also, you must remember that celebrity photos and videos are not free to the public simply because the subject of the photo or video is a public figure. Unless you took the photo or video yourself or created the logo or graphic on your own, it is safest to assume that the clip or image of whatever you wish to use is protected under copyright or trademark law. With that assumption, seeking permission to publish the clip or graphic is the best approach and one that will keep a web publisher out of the courtroom. Reproducing someone else’s copyrighted or trademarked work is considered infringement. The owner of the work can force you to remove the material and pay damages so it never saves to cut corners.

Foreclosure Woes

From my weekly (AM) radio segment titled "Legal Minute"

If foreclosure looms due to some missed payments, the first hard question to ask is whether you can afford to keep your house. The first thing you need to do is assess your equity in your home. The options you may or may not have depend on the extent of your equity. Second, use your time wisely to determine if there is a way out of foreclosure. Fortunately, foreclosure does not happen immediately. This gives you some time to pursue alternatives. You may be able to take advantage of recourse under the HOPE for Homeowners Act of 2008. Under the act you may be able to reduce your debt load by refinancing your mortgage under more favorable terms. Bankruptcy is another way in which to reduce your debt load. For instance, filing a Chapter 13 bankruptcy may allow you to pay off the late payments over a period of time. If you make all of the required payments by the end of the repayment period, you will be able to avoid foreclosure. A Chapter 7 bankruptcy, however, cannot cancel foreclosure. Negotiating loan forbearance with your lender, in which you make a reduced payment or no payment for a period of time, is another option.

30-Day Rule

From my weekly (AM) radio segment titled "Legal Minute"

Like most entrepreneurs these days, owning a website is just part of doing business. For product sold online, though, you must follow the Federal Trade Commission’s mail or telephone rule. Basically, the rule requires that when you advertise products online and accept orders via online and telephone methods, you must have a basis for meeting your stated shipping deadlines. In other words, if you are going to list shipping terms on your e-commerce website that say, for example, product will ship within 10 days of the order placement, then you must be able to meet those shipping terms. If, however, your e-commerce website is silent on the issue of shipping deadlines, then the FTC will impose a mandatory 30 day rule. The 30 day rule requires that you ship the product to the consumer within 30 days from the date on which a completed order or payment for that order is received. If a purchase is shipped COD or cash-on-delivery, the 30 day rule doesn’t apply. If you cannot meet the stated or mandatory shipping terms then the customer must be notified and consent to the delay.

Letting Employees Go

From my weekly (AM) radio segment titled "Legal Minute"

During these challenging economic times, if you own a small business you might find yourself in the position of having to let certain employees go. Most employees in the U.S. are “at will” which means that you can fire them at any time and for any reason, unless that reason is illegal. Because there are limits on the conditions under which an employer can terminate an employee, making a careful decision about employee termination is important to avoid the risk of legal claims. For instance, under State and Federal laws, employers are prohibited from firing an employee for discriminatory reasons. Examples of illegal discriminatory firing are firing an employee because of their age, race, gender, national origin, religion or disability. Retaliatory firing is also illegal if, for instance, an employee attempts to assert his rights under anti-discrimination laws. In addition, employers are prohibited from firing an employee because the worker took family medical leave or complained of an illegal company activity. Lastly, if an employment contract is involved, be sure to honor those promises and adhere to the termination terms of the contract.

H.R. Pufnstuf vs. McDonalds?

From my weekly (AM) radio segment titled "Legal Minute"

McDonalds has a reputation of being one of the most litigious companies in corporate America but those of us old enough to remember H.R. Pufnstuf will delight in this case. In 1973, Sid and Marty Krofft, the creators of H.R. Pufnstuf, successfully sued McDonald's, arguing that the McDonaldland premise was a ripoff of their popular TV show. The Kroffts claimed that the character Mayor McCheese was a direct copy of their character, "H.R. Pufnstuf". McDonald's was ultimately ordered to pay the Kroffts more than $1 million. McDonaldland, as it was depicted in the commercials (which can now be found on YouTube) was a magical place very similar to the popular H.R. Pufnstuf program. McDonald's had originally hoped the Kroffts would agree to license their characters for commercial promotions. When they declined, McDonaldland was created, purposely based on the H.R. Pufnstuf show. After the lawsuit, McDonaldland was all but closed. Over 30 years later, the law hasn’t changed. Get the license because copying doesn’t pay.

Adoption options

From my weekly (AM) radio segment titled "Legal Minute"

Adoption is the legal process that permanently gives parental rights to adoptive parents. Foster children are those who are in the child welfare system because the birth parents’ rights to these children have been terminated by court order. There are three ways to adopt children: agency, independent and inter-country adoptions. Licensed public or private adoption agencies are responsible for finding adoptive homes for the children in their care and they do so through their agency’s adoption process. Independent adoptions allow the birth parents to choose the adoptive parents and place the child up for adoption after signing a consent form which becomes irrevocable in thirty days. Inter-country adoptions allow prospective parents to adopt foreign born children for whom Federal law makes a special immigration visa available. Inter-country adoptions are completed in the child’s native country or in California. The adoption process requires paperwork, a family assessment, fees and much patience but is well worth the effort. Visit the Children and Family Services Division of the California government website for more information.

Don't Go Phishing

From my weekly (AM) radio segment titled "Legal Minute"

Phishing – spelled with a “ph” is not what you used to do at the lake during your summers. Instead, it’s a term used to describe an insidious form of Internet scam designed to steal valuable information such as credit card, social security numbers, user IDs and passwords. It is often perpetrated under the pretenses of an official communication from a trusted source, such as your bank, credit card company or online retailer. The email sent to you is the bait and it is designed to get you to click a link or respond with certain information to validate who you are or to supposedly correct an error. Many people take the bait only to later find that they’ve been phished and fallen victim to identity theft. Phishing is easy to do and it is becoming a common crime for that reason. California enacted a law in 2005 that imposes a fine of $2,500 per violation and permits the victim to seek up to $500,000 in damages but many say the law is still too weak on phishing scams. Until the law catches up with reality, be on the watch and don’t fall for the bait.

Gift Certificate Law

From my weekly (AM) radio segment titled "Legal Minute"

During those seasons when holiday shopping is in full swing, it’s helpful to know what gift certificates you get or give are valid. California is one of the states regulating aspects of gift certificate sales. California requires sellers of gift certificates to honor them in the event of bankruptcy. The California law does not permit gift certificates to have an expiration date unless certain conditions are met. The gift certificate must have an expiration date printed on its face in at least 10-point font. In California, a certificate without an expiration date remains valid until redeemed or replaced and may be redeemable in cash. Certain gift certificates are exempt from these requirements, such as gift certificates distributed as part of an awards, loyalty, or promotional program without anything of value being given in exchange, and those sold below face value at a volume discount to an employer or nonprofit charity for fundraising purposes. Also, California does not require a seller to replace a lost or stolen certificate. Happy Shopping!

The Domain Name Game

From my weekly (AM) radio segment titled "Legal Minute"

Do you need a domain name for your business or maybe that personal website where you share pictures with your family in another state? Whatever your purpose might be, you must think twice before registering that catchy domain name. If you make the mistake of choosing a domain name that is someone else’s trademark, then you run the risk of having to turn over the domain name to the true trademark owner. You will also lose your investment in the domain. For instance, let’s say you wanted to register the domain name for Taco Bell. Let’s say you ’re successful in doing that and purchase the rights to tacobell.com. As soon as you can say “quesadilla”, you will probably receive a letter from the Taco Bell Corporation informing you that your domain name infringes their trademark. The fact is, Taco Bell would have a valid argument under the law because they own the trademark to that name. At that point, you would be forced to give up use of the domain name and turn it over to the Taco Bell Corporation. Before registering a domain name, it pays to spend time researching the proposed name to make sure that it’s not already someone else’s trademark.

Paternity Rights

From my weekly (AM) radio segment titled "Legal Minute"

Paternity rights are not just the stuff of celebrity tabloids. Typically, when unmarried partners have a child and then split up or when the mother of a child born out of wedlock dies, paternity is usually an issue in dispute. In California, the mother or a person claiming to be the father can file a legal action under California Paternity laws. This legal claim is designed to establish parental rights and duties such as child support, custody and visitation. Signing a child’s birth certificate does not necessarily mean that the man signing is that child’s father. Under the state’s Paternity laws, any man who is said to be the father is entitled to take a DNA blood or saliva test to confirm or deny that fact. Comparing the DNA sequence of one person to that of another can prove whether one person’s DNA was derived from the other person’s DNA. The results of the test are available in about two weeks. The alleged father is entitled to legal representation and can dispute paternity if there is a basis to do so. Child support and custody can be awarded to either the father or the mother, depending on the circumstances.

Name Changes

From my weekly (AM) radio segment titled "Legal Minute"

Are you thinking of changing your name or your child’s name? You might have a good reason to do so as a result of divorce, marriage or child custody. But avoiding debt or the IRS is not a good reason under the law. In California, obtaining a name change is rather simple but it helps to know what is involved. The name change application must be filed with Superior Court. If filing for a child’s name change, the parents or legal guardian must submit the application. The application- or what’s called a petition – must state the person’s birthplace, residence, the new proposed name and the reason for the change. About four to eight weeks after the petition is filed, the court calls a hearing to determine whether the name change should be granted. The court gives the public an opportunity to object to the name change. This is done by the court publicizing its order for a period of four weeks. The publication is often in the local paper. A divorced spouse will usually object when the name change is for a child and that change was initiated by the other spouse. If no objections are made, however, the court grants the order and approves the new name.

Notes for Songwriters

From my weekly (AM) radio segment titled "Legal Minute"

Whether we’re an aspiring musician or weekend songwriter, the music publishing business can be complex. We need to know the pitfalls and blessings of credits, copyrights and royalties. If you’re co-writing a song with friends or bandmates, figure out the credit to each contributor before you put pen to paper. Will the credit be 50/50, 70/30? It will save headaches in the long run. Once you write the song, get the songwriters’ names out in public. The internet makes that easy to do. For MP3s, WMAs and other digital formats, encode the text tags for your files with the songwriter and copyright information. As your song gets shared in cyberspace, you can get noticed and protect your ownership rights. Don’t forget to register with the performing rights societies, BMI or ASCAP. They collect royalties from all outlets where music is played and distribute royalties to the members. Always retain your copyright ownership in the song because that is the key to all music publishing revenue. Seek a music lawyer’s help. Lastly, think outside the disc and consider other avenues in which to exploit your song. The internet, video games, ad agencies, and television are all great sources.

Beat or pay your Traffic Ticket

From my weekly (AM) radio segment titled "Legal Minute"

If you drive enough on the highways, you’ve probably seen those red and blue flashing lights accompanied by a siren behind your car at least once. Do you fight the ticket or pay it? If you’re a lawyer, it’s practically our nature to fight it. Otherwise, if you have had a clear driving record and this is your one ticket in 10 years then you may want to just pay it and restore your clean record. If you have a ticket or two already, then you may want to fight. Start by studying the law under which your ticket was issued. Sometimes, the officer can get the law wrong. So, read the statute carefully, word-by-word and break the law down piece by piece. Make sure that each requirement in the statute was satisfied in your case. If you can show that your conduct did not violate at least one element of the law, then you can beat your ticket. If the law is not on your side then look at other facts surrounding the stop to use in your argument. Never argue that the officer was lying, that you were ignorant or mistaken in the law or that you have a good reason for breaking the law. You will win if the officer doesn’t show but don’t count on that.

Buying a Business

From my weekly (AM) radio segment titled "Legal Minute"

Starting a business is a lot of work so, for some, buying an existing business is often an easier and faster way to get into an industry. There is much that we need to do before buying any business. Start by considering a business in a field of which you know something about otherwise, you may not be able to assess if the value is a good one and you’ll have a steep learning curve to climb. Begin your search in your local community as you may find what you want by word of mouth. You can also try searching the newspaper, Internet, trade associations and business or real estate brokers. Once you make a selection, conduct a thorough review of the businesses’ finances, employee and customer contracts, assets, leases, and past lawsuits, if any. We lawyers call this process “due diligence” and it’s worth having a lawyer help you with the review. This is no time to be timid. Ask the hard questions and gather as much information as possible. After due diligence is complete, have the value of the business appraised. Then, you’re ready to negotiate the price with the seller and have your lawyer document the purchase in a formal agreement.

Patents- as American as Apple Pie

From my weekly (AM) radio segment titled "Legal Minute"

Patents represent that great spirit of innovation and discovery that is as American as apple pie so it’s not surprising that most Americans are inventors. We’ve all had good ideas now and then but when we have that useful, non-obvious and novel idea, it’s worth thinking about a patent. Obtaining the patent for our idea means we can have a 17 to 20 year monopoloy in which to profit from the invention. Filing a provisional patent buys an inventor some time before they file the full blown patent application. This process can be more costly but gives inventors the peace of mind to know that they have some protection when speaking with potential manufacturers. Before filing the full patent application, start with an online patent search. The internet makes this easy and inexpensive. If there is no patent representing your idea, then the time may be ripe for your patent. Next, make detailed written records of your ideas from conception, conduct testing of your invention and record that in writing as well. Finally, ensure that your application is clear so that the patent examiner can understand how your invention works and how to build it.

Trade Secrets

From my weekly (AM) radio segment titled "Legal Minute".

For those of you who own a business or are thinking of starting a business, you need to know about some trade secret basics. A trade secret is any valuable business information that is not generally known to the public and is subject to reasonable efforts to preserve confidentiality. That means that if you do not take proper steps to protect the secrecy of your valuable business information then the information will forever lose its trade secret protection. One of the most famous trade secrets is the formula for Coca-Cola. They’ve done a very good job of keeping that recipe secret for decades. The best way of protecting your trade secrets is requiring the person to whom you disclose the secret to sign a non-disclosure agreement – or NDA. The NDA contains a promise by the recipient to keep your trade secret confidential. Call your lawyer for a proper form of NDA. Also keeping your trade secrets under lock and key or accessible by only those who have signed an NDA is a wise practice. A trade secret will be protected under law from exploitation by those who steal your trade secrets or those who breach the NDA.

Immigration Issues in the Neighborhood

From my weekly (AM) radio segment titled "Legal Minute".


So-called immigration reform may soon be coming to a neighborhood near you. The Department of Homeland Security estimates that there were 2.5 million more illegal immigrants living in the US in 2006 than in 2000. As President Bush has urged Congress to compromise on the divergent House and Senate versions of immigration reform bills, city councils seem to be taking matters into their own hands. Lawmakers in the southern California city of Escondido recently approved an ordinance that will prohibit landlords from renting their properties to illegal immigrants. The measure requires landlords to submit documentation to city authorities to prove their tenants' immigration status. If found in violation, landlords could face suspension of their business licenses and fines. Opponents called the new ordinance racist and said immigration enforcement should be handled by the federal government, not local governments. The ordinance takes effect Nov. 18th, but opponents said they plan to challenge the law in court before city officials begin enforcement. Escondido's ordinance follows passage of similar local immigration enforcement laws in Pennsylvania and New Jersey.

Childish Tactics

From my weekly (AM) radio segment titled "Legal Minute".




Childhood games of ‘rock, paper, scissors’ in the schoolyard is something we remember but in the courthouse? A Florida courthouse perhaps. In a recent case where a hotel investment firm sued an insurance company for allegedly not paying a claim fast enough after Hurricane Charley, attorneys for the parties fought at every turn. When it came time to select a location to depose a witness, the attorneys would not agree. As a result, the court was asked to intervene. The presiding U.S. District Judge was not amused. After chastising the attorneys for not being able to agree on even the simplest matter, the Judge issued his ruling stating that “the Court will adopt a new form of alternative dispute resolution calling for the attorneys to meet at a neutral site agreeable to both parties. If the attorneys cannot agree on a neutral site, they shall meet on the front steps of the courthouse. Each attorney is entitled to be accompanied by one paralegal who shall act as a witness. At that time and location, counsel shall engage in one (1) game of 'rock, paper, scissors.' The winner of this engagement shall be entitled to select the location for the deposition.” Perhaps they needed a time out.

R.I.P. Law

From my weekly (AM) radio segment titled "Legal Minute".


Just when you thought there were more than enough laws out there, we have a category of law that consists of funeral rules. Those making funeral arrangements for a loved one are under emotional stress and time constraints due to the short notice required for the planning. As a result, people are vulnerable to making poor business and financial decisions during such a time. So, in order to prevent funeral homes from taking advantage of their customers’ situations, the FTC passed regulations known as the “Funeral Rule”. The Funeral Rule is designed to protect people making funeral arrangements and to inform them of the economic choices they have in planning a ceremony. The Rule requires funeral providers to give their customers an accurate, itemized price list about funeral goods and services. It also prevents funeral providers from misrepresenting legal, crematory, and cemetery requirements; embalming for a fee without permission; requiring the purchase of a casket for direct cremation and so on. If funeral providers violate the Rule, they can be subject to penalties of up to $10,000 per violation.

On the Board

From my weekly (AM) radio segment titled "Legal Minute".


Given recent headlines, it’s helpful to know what are the functions and responsibilities of the boards of directors or board of trustees. Boards of directors occupy twin roles involving support and governance. The primary functions of the Board are to: provide continuity to the organization, select the CEO, govern the organization with broad policies and objectives, acquire resources for operations, and account to the public for activities and expenditures of the organization. Other responsibilities of the Board include acting as the court of appeal for disputes within the organization, enhancing the organization’s public image and assessing the Board’s own performance. The support role of the Board is designed to ensure the organization’s success while the governance role of the board is to protect the shareholders and the public interest. Both of these board roles are distinguished from management of the organization which is a function reserved for the CEO. Directors on the board are each bound to fiduciary duties – similar in nature to those of agents or trustees. In the US, the Sarbanes Oxley Act introduced new standards of accountability for Boards and we may see more of that in the wake of the recent scandals.

Do Lawsuits Suit You?

From my weekly (AM) radio segment titled "Legal Minute".


We’ve all heard it before in movies, the dramatic “you’ll be hearing from my lawyer” before storming out of a room. But in real life, the decision to pursue a legal matter in court is an important one. Before contacting a lawyer, we should consider whether we have a case at all. If so, what are our damages? Is the statute of limitations in effect? What sort of lawyer will we need? Should we file in State or Federal court? Who is the defendant? Every lawsuit begins with a complaint. Then, the other party has an opportunity to respond in an answer. The other side may argue that the case has no merit and should be thrown out of court. If they don’t succeed, we move into discovery where each side tries to discover more facts about the other. At that point, an offer of settlement is often made. If the case doesn’t settle, we move forward to trial before a jury or a judge, known as a bench trial. Lawsuits are time consuming and becoming tangled up in a legal action can have a heavy financial and emotional toll. Lawsuits don’t always fit well.

Protecting Your Privacy - Part II

From my weekly (AM) radio segment titled "Legal Minute".


When E.T. phoned home, it was cute. When telemarketers phone home, it’s downright annoying. To avoid receiving unwanted calls, registering on a National Do Not Call List or a Do Not Call Registry sounds appealing. However, if we receive calls about either of these programs then they are definitely scams as confirmed by the FTC. Recently, the FTC amended the Telemarketing Sales Rule to give consumers more control over the calls they receive at home. Under the amended Rule, the FTC is creating a National Do Not Call Registry and that is the only legitimate registry out there to combat intrusive callers. The FTC has never hired any private companies to engage in calling consumers about the registry. So, we must be wary of the scams. The only safe procedure by which to ensure that we will not receive unwanted calls is to visit the FTC’s National Do Not Call Registry located at www.donotcall.gov. The site is available in English and Spanish and we can register both our home and cell phone numbers.

Protecting Your Privacy - Part I

From my weekly (AM) radio segment titled "Legal Minute".


Technology can be a blessing but it’s a curse when it comes to preserving our personal privacy. Let’s start with spam – one of the most common and intrusive privacy violations. The CAN-SPAM Act of 2003 was a win for consumers. CAN-SPAM stands for the title of the law: Controlling the Assault of Non-Solicited Pornography and Marketing Act. The Act sets forth strict requirements for those who send commercial email, imposes penalties for spammers who violate the law and for companies whose products are promoted by spammers. It also gives consumers rights to ask emailers to stop spamming them. The FTC is the nation’s consumer protection agency and is charged with enforcing CAN-SPAM along with the Department of Justice. The most we can do to protect ourselves from spam is to keep our email address unlisted. There is no such thing as a National Do Not Email Registry- the FTC confirms that it’s a scam. Send problematic spam to the can by filing a complaint at www.FTC.gov.

Counterfeit is Never in Style

From my weekly (AM) radio segment titled "Legal Minute".


For those of us planning to enjoy off-season travel in Europe this year, we may be looking forward to finding some great bargains on designer items. However, we cannot give into temptation when street vendors in Europe or the US entice us with fake Fendi, Gucci or Louis Vuitton. This doesn’t only apply to ladies; men also fall prey to great looking knock-off designer luggage, wallets and briefcases. Buying fakes is criminal and the profits are often used by criminals to fund illegal activity such as drug smuggling and terrorism. Most of Europe and the US are cracking down hard on counterfeiters and tourists who buy their goods. In the US buying counterfeit goods is criminally and civilly punishable under Federal law with fines and prison time. In Europe, Italy and France gave new meaning to fashion police by increasing penalties for counterfeiting in 2005. Any person caught in these countries buying or wearing fake designer goods will be penalized anywhere from 10,000 to 300,000 Euros. Remember, counterfeit is never in style.

Making Your Mark

From my weekly (AM) radio segment titled "Legal Minute".

When we start or manage our own business- making our mark in the community is important. One of the ways to do this effectively is by owning a trademark of our own. Trademarks and service marks are names, words and symbols used by vendors of goods or services to identify and distinguish their goods or services from those offered by others. Trademarks are used on goods and service marks are used for services. McDonalds is a well-recognized trademark as is the Nike swoosh. Symbols, characters and unique product shapes can be trademarks as well. Tony the Tiger who appears on frosted flakes is an example of a trademarked character used to represent a product. A trademark can also aid in domain name ownership. All states protect unregistered trademarks under non-statutory common law. However, protection of trademarks used in commerce is available under the Federal Trademark statute known as the Lanham Act. Federally registered trademarks are best but the law is complex so seek the help of an attorney to assist.

Right of Publicity

From my weekly (AM) radio segment titled "Legal Minute".


We all have many rights in common. One of them is that we each have an individual right to control the use of our own name and likeness. This right is known as a right of publicity. The right of publicity allows us to prevent the use of our name or likeness for commercial purposes. For example, imagine as you walked down the street, you were stopped and asked by a major fast food chain if you would like a free burger in exchange for allowing the chain to take your smiling picture with the burger in hand. Then imagine that your picture was later used by the fast food chain in a nationwide TV ad campaign and all you got out of it was the free burger. In addition to being rather upset, you would have a right of publicity claim against the fast food chain. The right of publicity is often confused with our individual right of privacy. The two rights do intersect but they are not the same. The right of publicity gives us a property right in our identity. The right of privacy protects us if we suffer emotional harm from the publication of private facts that are embarrassing, intimate or portray us in a false light. If you believe that your rights have been infringed upon, seek advice of counsel about these issues.

Monopoly is No Game

From my weekly (AM) radio segment titled "Legal Minute".


We’ve all played Monopoly but in real life, it’s not a game. So what is a monopoly in real life? Some may say Microsoft but, seriously, real life monopolies are concentrations of wealth in the hands of a few. Monopolies negatively impact competition in the marketplace. If we form a monopoly then we are anti-competitive. Without competition, there is no price control. In other words, if we want to buy something under a monopoly, we have to pay the monopolist’s price for it. We would have no choice and no price protection. Monopolies also lead to sluggish markets and a loss of entrepreneurship and innovation. Congress passed the anti-monopoly law over 100 years ago. The U.S. Constitution applies that law to all business in all states. The problem these days, is how do we identify what sort of conduct by businesses might lead to a monopoly? Federal agencies are hosting public hearings this year to discuss how to better identify and enforce anti-competitive conduct. Aggressive pro-consumer programs will come under scrutiny as well as loyalty discounts such as buy 3 get one free offers. One thing is certain, however; there are no “get out of jail free” cards for monopolies.

Home Improvement

From my weekly (AM) radio segment titled "Legal Minute".


Summer is the time to start those home improvement projects. As we purchase new windows, contract for a new roof or buy anything else for our home, we must remember to ask about the warranties up front. If we don’t check our warranties then we’ll find ourselves in a mess should we discover that our home improvement items have defects. Anytime we buy a new product for personal, family or household use we are protected under State and Federal warranty laws. The benefit to us of this protection is that every product we purchase must carry some type of warranty. If there is no warranty then that’s a bad sign and should be a red flag. When we have a warranty we can make a claim with the manufacturer for a repair, replacement or perhaps a refund if we discover that the product is defective. Product warranties are free to us as consumers and extend for a reasonable period of time- usually thirty or ninety days. Under the law, product warranties are supposed to be hassle-free. We don’t need to fill out a registration card to receive our warranty. If we’re asked to do this then it’s illegal. Good luck on the home improvement!

Art and Morality

From my weekly (AM) radio segment titled "Legal Minute".

What if someone went and sprayed hot pink graffiti all over the Lincoln Memorial? The act would be an outrage. All civilized cultures throughout the ages recognize the moral duty to protect works of fine art. Federal and state law recognizes this duty and imposes it on all of us. The law give protection to the moral rights of artists. What that means is that each work of fine art carries with it a moral right of its creator requiring that no person deface, alter or destroy a work of fine art intentionally or with gross negligence. Gross negligence would be something like – letting your kids run around with water balloons in the Guggenheim. California gives any creator of fine art (and their heirs) a legal right of action during the artist’s life and for 50 years after death. So what is fine art anyway? Well, that depends on recognized standards and, if there are none, upon opinions of artists, art dealers, collectors and museum curators. For fine art, such as murals, that exist on buildings scheduled for demolition, the artist is entitled to receive notice and the opportunity to remove his or her work of art. Opinions may differ as to what is fine art but not on the desire that all fine art should be protected.

The 411 on DBAs

From my weekly (AM) radio segment titled "Legal Minute".


Owners of start ups are wise to start off on the right track. One item on the to do list is filing a Fictitious Business Name statement or DBA, doing business as, statement. This is a requirement under state law for any person or company who is in business for profit. Filing a DBA is useful when we want to collect funds or market our business under another name. For example, my firm is known as “Zent Law Group” but we also have a DBA under the name ZLG which is sometimes used for marketing and collection purposes. Filing the DBA statement is easy. Run a search on the internet, download the appropriate forms and file the statement with our county. Filing the DBA early in the startup phase is best in order to have exclusive rights in the county to use the DBA name. It’s helpful to keep a few rules in mind when filing DBAs. For individuals, the DBA must exclude our last name and the suggestion of other owners (such as John Doe brothers or John Doe and associates). For companies and partnerships, the DBA must exclude the name on the articles of incorporation or certificate of partnership. No DBA statement is required for non-profits. For more help on filing, check the state code or contact your business lawyer.

Say No to Junk Fax

From my weekly (AM) radio segment titled "Legal Minute".

We all get junk fax, even if we have a home fax machine. In the spring of 2005, President Bush signed the Federal Junk Fax Prevention Act which allows organizations to fax ads to consumers and businesses with which the organization has a qualifying established business relationship. Critics of the law claim that the standard is too loose. California’s answer was a far more restrictive standard when Governor Schwarzenegger recently signed legislation that will impose significant burdens on businesses communicating with consumers via fax machines. Under the new law, unsolicited commercial faxes can be sent only with the express prior consent of the recipient. There is no exception for any established business relationship and the law applies to both intra-state and interstate faxes. There’s a fine of $500 fine for violation of the ban with triple damages for willful violation. The burden is now on the sender of unwanted faxes if they are sending to Californians. It pays to live in the golden state. The new law takes effect on January 1, 2006.

Drink Responsibly

From my weekly (AM) radio segment titled "Legal Minute".

During this season of holiday parties and year-end celebrating, alcohol is everywhere, so everybody needs to remember the laws regarding drunk driving. California has two basic drunk driving laws found in Vehicle Code sections 23152(a) and 23152(b). 23152(a) makes it a misdemeanor to drive under the influence of alcohol and drugs. 23152(b) makes it a misdemeanor to drive with a blood alcohol level of .08% or greater. Drinking and driving can result in being convicted of both offenses but the punishment will be singular. Punishment varies by facts but generally, for the first offense, it will consist of a fine, a 90 day license restriction in addition to a DMV suspension, attendance at DUI school for up to 9 months and probation for up to three years. Vehicle Code section 23153 sets forth the felony DUI provisions where an injury results from the drunk driving. The Penal Code sections 191.5 and 192 describe the crime of vehicular manslaughter where a death results from the drunk driving. Be safe on the road this season.

Personal Finance Woes

From my weekly (AM) radio segment titled "Legal Minute".

Many folks spend beyond their means during this time of year and before they know it, they are being swallowed up in debt. The way out used to be declaring personal bankruptcy under Chapter 7 which permitted the canceling of all debts. But, Congress made some key changes to the personal bankruptcy laws. One of the most notable changes to Chapter 7 is that the debtor – the person filing the bankruptcy – prove that his or her income is less than the state median income. In addition, the consumer cannot obtain relief under Chapter 7 if his or her current monthly income, less all debts and allowable expenses, is greater than $100 per month. Debtors who meet this threshold would be shifted out of Chapter 7 and into a 5 year repayment plan under Chapter 13. The creditor has some duties as well. Under the new law, credit card companies are required to inform consumers up front what they are expected to pay, and what penalties they will face if they are late on a payment. Stricter laws make personal bankruptcy a last resort. Spend wisely.

Notes on Copyrights

From my weekly (AM) radio segment titled "Legal Minute".

Kids who are growing up with iPods, Rhapsody and Napster often forget the original ownership of the music they download. The ownership of a musical composition is called a copyright, and that copyright exists at the moment a song is composed by its author. The musical composition is the melody of the song which may or may not include words, known as lyrics. Under the US Copyright Act, the copyright belongs to the author of the song and gives the author the exclusive right to make and publish copies of the song, make recordings of the song and perform the song in public. So, it is illegal to make an unauthorized copy of a song. There are some exceptions and they’re covered by the Audio Home Recording Act but it’s important to remember that it’s the author who holds the rights to those works. The only music that is free to everyone is music that is in the public domain. Very old songs such as religious hymns or classical music are examples of public domain works. We value art by respecting copyrights.

Protect Your Child Online

From my weekly (AM) radio segment titled "Legal Minute".


Kids today have more devices and access to computers than any generation. So, it can be tough for parents know their rights when it comes to what kids are doing online. Kids are also unsuspecting prey for online predators. That’s why the Federal government enacted the Children’s Online Privacy and Protection Act – or COPPA- back in 2000. COPPA applies to the online collection of personal information from children under the age of 13. Website operators cannot collect or use personally identifiable information about a child, such as full name, home address, email address, telephone number or any other information that would allow someone to identify or contact the child without meeting certain conditions. The conditions are that the website operator must have a privacy policy available on their website and direct notice must be provided to the parent about the proposed collection of the child’s personal information. Notice to the parent by email is acceptable. Then, the parent has the right to consent or withhold consent before any information about their child is collected. Parents also have the right to revoke a previous grant of consent. Keep our kids safe online and exercise your right to say no.

Clearing the Air

From my weekly (AM) radio segment titled "Legal Minute".


The Federal Clean Air Act has been around for a while and you probably know that it is designed to prevent environmental dirty air culprits such as smog and hazardous air pollutants. The Act is also, technically, designed to cut back on the use of fireplaces and woodburning stoves, a luxury that many enjoy during the winter months. Wood smoke contains air pollutants that can also be cancer causing. In an effort to comply with the Clean Air Act, the San Joaquin Valley Air Pollution Control District in California has devised a plan that will leave many of the Central Valley's 3.5 million residents out in the cold by banning wood-burning fireplaces and stoves. If approved, the new regulations would affect approximately 500,000 households that currently have traditional wood-burning fireplaces and stoves. Residents of such households are up in arms as they depend on the warm blaze during the Valley's cold winters to save on energy costs -- which, by the way, have skyrocketed in the state over the past several years. We could all use an oil or gas fired furnace as a safer alternative or there could be a lot of cold winters ahead.

Stop the Traffic

From my weekly (AM) radio segment titled "Legal Minute".


Human Trafficking is a crime that offends all of humanity and all countries must do their part to stop it. If you don’t know what it means, it means just what you would think- the forced sale of human beings into slavery or servitude, most commonly, as prostitutes, many of whom are children. Only weeks ago, President Bush signed the Trafficking Victims Protection Reauthorization Act in response to the issue. The Act, in its basic form, has been in effect since 2000. Prior to that, no federal law existed to protect trafficking victims and prosecute their traffickers. The new version of the law, however, expands the scope of the act to incorporate more resources for victims. In addition, the new law grants funds for state and local law enforcement agencies for the investigation and prosecution of human traffickers. On the international front, the United Nations established the a global program designed to assist member states in their efforts to combat human trafficking. If you think you have come in contact with a victim, stop the traffic by contacting the Trafficking Information and Referral Hotline.

Stare Decisis

From my weekly (AM) radio segment titled "Legal Minute".


During Samuel Alito’s confirmation hearings, when pressed for statements as to how he would rule on certain issues he stated that he would follow the doctrine of Stare Decisis. Stare Decisis is Latin for “to stand by that which is decided”. Stare Decisis is used to refer to a complex legal doctrine that requires the prior decisions of courts to be regarded as precedent. The motivation for the doctrine is that we need to maintain certainly, predictability and stability in the law. Although, there are exceptions to the doctrine. For instance, courts may deviate from precedent by overruling cases that may be contrary to public policy or for other reasons. Some argue that the doctrine interferes with judges’ rights to interpret the law and the legislature’s right to make the law. It is, however, a fundamental policy of jurisprudence that relevant precedent must be followed even if a case, if decided anew, might be decided differently. A party seeking to overturn precedent has a challenging task of proving that the existing precedent is no longer good law.

Not For Sale - U.S. Social Security Numbers

From my weekly "Legal Minute" radio segment, delivered in 2005


After the ChoicePoint debacle, involving the inadvertent sale of 145,000 U.S. Social Security numbers to crooks, lawmakers are taking a closer look at regulating the business of selling personal information. Social Security ("SS") numbers are used to verify sensitive personal information in a variety of contexts, from banking and credit reports to hospital records. Obtaining valid SS numbers is a prime objective for identity thieves. Now, the Federal Trade Commission (FTC) and US legislators are investigating the ChoicePoint security breach(es) in reference to a proposed ban on activities of data brokers; in particular, on the sale of SS numbers without first obtaining approval from the affected persons.

The proposed law sounds attractive but is it really?

Are lawmakers going after the right parties? Shouldn’t the thieves be the focus and, if so, shouldn’t legislators look at increasing penalties for identity thieves as well as imposing heightened security requirements upon data brokers?

If such a law is passed, I’m not so sure that it would actually protect consumers. For instance, could such a law contravene its intent by forcing consumers to divulge their SS numbers more frequently every time they wish to obtain a home loan quote, an insurance quote, open another bank account, or visit the doctor? Without ready access to SS data, will services organizations such as banks, insurers, medical institutions and private investigators be forced to increase their fees to consumers for the added trouble of verifying identities of its customers? Will prospective customers of these institutions be subjected to long, invasive and tedious identity verification practices? And, we are all users of the internet. How will this affect our user experience when we want to quickly investigate a quote on a property loan before making an offer, for instance?

I am concerned that the proposed law could do more harm than good and still not solve the problem. The problem is not the collection of our personal data and the brokers who hold that data because we all have an interest in that process (e.g., reduced fees, convenience, etc.).

The problem is that there is an incentive for thieves to obtain that data. Legislators need to address that incentive and seek to eliminate it.






This blog is for general information only and is not intended to serve as legal advice. Any liability or attorney-client relationship that might arise from your use of or reliance upon any content (including links) on this blog or from any email sent to me via this site or the web is expressly disclaimed. The content of this blog contains views of the author and shall not be attributed to Zent Law Group, PC.