California Business Legal Questions

Essentially, you are claiming is that the tenant has stolen your goodwill, an intangible asset.  Also, you appear to be claiming that, by virtue of the use of the restaurant trade name over many years, it obtained the status as a common law trademark, which the new tenant is infringing.  I assume that you never applied for a formal trademark registration; while such a registration would provide you with additional benefits above and beyond the benefits of a common law trademark, including additional damages which can be recovered for infringement, you can sue for infringement of a common law trademark.  The tenant may have valid defenses to such a claim, including defenses based on your "not being able to continue the fight" earlier, so I can't predict whether your suit would succeed.  Also, you would probably have to prove that the mark had obtained "secondary meaning" among consumers, meaning that consumers had come to associate the mark with your restaurant, and would be confused by the tenant's use of the mark into believing that they were dealing with your restaurant.  Consumer surveys are often required to meet the burden of proof on such a claim, and those surveys can be very expensive.... Read More

I would need quite a bit more detail to give you helpful guidance on this. I was involved in what sounds like a similar dispute several years ago involving a church. In that case changes were made with the secretary of state as well that impacted control over church assets. Can you provide me with more info? Where was the lawsuit filed? It might be best to email me directly on this jon@czechandhowell.com. Thanks,Jon... Read More

If I understand you correctly, your partner is buying out your share of the business.  You will have a promissory note from him setting forth the indebtedness and payment terms, but you want to secure his payment by liens on his assets.  For real property assets, you would have a mortgage lien, for non-real estate assets you would get a U.C.C. lien.  There is documentation connected with either of them (including, of course, your partner's agreement to grant you the security interests), and you would need to register them, but you would need tp speak to a California lawyer to get the particulars of what needs to be done in California.... Read More

The question is whether your use of 1oak is likely to cause consumer confusion between your goods and those of the party which has trademarked "one oak."  I believe it would, but it is possible that a ttab examiner or Court might have a different opinion.  However, it does seem clear that you can't use "one of a kind", assuming it is a valid trademark (you may be able to challenge this trademark as being too generic to be protected), just as Burger King can't use McDonalds'golden arches symbol on its materials, even if they otherwise clearly indicate that they are from Burger King.... Read More

It really depends upon what the individual is doing. If she is making defamatory statements about you you could sue to seek an injunction preventing her from continuing the behavior.  There are likely other options as well, but I would need to know more of the specifics facts to give you a firm opinion. Thanks,Jon... Read More

You certainly have an argument that you are entitled to a portion of the company and/or reimbursement of the money that you invested in the companyy. Although there was no written contract, it sounds like you entered into an oral agreement and that agreement can be evidenced by your testimony, the email you referenced and proof of payment for the money that you have invested. This certainly sounds like something worth pursuing if you believe that your partner has resources and/or is still operating this business. Let me know if I can be of any assistance. Thanks,Jon... Read More

Hi Chris, In order to collect anything on top of the outstanding amount that is owed and interest you would need to have a contract that called for payment of attorney's fees and penalties for late payment. Do you have a written agreement? In the event that you don't have a written agreement you still may have a claim for late fees if your invoices clearly set forth that a late fee will apply if a payment is overdue. Let me know if I can assist you in this collection. Thanks,Jon... Read More

There's no reason why a general partnership can't operate numerous business under various names, just as individuals can operate John's Pizza at the same time as they operate Joe's Garage and Mary's Bowling Alley.  However, it may not be the best way to handle it.  If you own partnership x, which operates businesses a, b, and c, those businesses (a, b, and c) are each responsible for each other's obligations (your personal assets could also be in jeopardy if you use the partnership form.)  If someone driving a truck delivering a's merchandise has an accident, and  insurance and assets are insufficient to satisfy the liability, the assets of b and c can be in jeopardy - a, b, and c are not separate entities (d/b/a just means doing business as, it doesn't create a separate legal entity.)  However if you own llcs x, y, and z, which operate businesses a, b, and c, respectively, each of them is a separate legal entity, and one is not responsible for the debts of the other.  You have to weigh this advantage, however, against the possible tax disadvantages.  If a, b, and c are all owned by the same partnershiip, a's losses can be offset against b's and c's profits when it comes to income tax.  There are other factorsis to consider as well, and the best structure for any sort of business venture may depend on each individual's personal situation.... Read More

That depends.  If you added the word "apparel" to "McDonalds", consumers are not likely to  confuse your apparel company with McDonald's fast food restaurants.  However, just adding the word "apparel" to "Aeropostale" would not get you off the hook.  By using the term "Aeropostale", even with the additional word "apparel", consumers would still confuse your business with theirs; you would be trading on their goodwill and name recognition, and consumers would think they were buying clothing from the original Aeropostale, not  your new business.  Some more fanciful and less descriptive term might help to prevent confusion.  In other words, "influx apparel" will probably not pass muster if there is another "influx" clothing store, but "influx benini brothers" has a better chance; the first term "apparel" is just descriptive and doesn't distinguish the two marks.  The second one might still not be different enought to avoid confusion, but it has a better chance.... Read More

Even if you were tutored by the same tutor, I am aware of no requirement that the service has to charge everyone the same rate, as long as it doesn't discriminate on some basis prohibited by statute (e.g. race, religion, gender, etc.)  There is nothing unlawful about a dealership selling you a car for $5,000 and selling the same car to your friend for $4,000; if just means your friend negotiated a better deal.... Read More

Hi, The broker is not going to be able to force the landlord to allow for the assignment of the lease to the potential buyer. The lease terms will govern whether or not the landlord is required to do so, but most leases typically allow for the landlord to have final say over whether a lease can be assigned. Often, the lease includes language that a landlord will not unreasonably withhold their approval, but in this case if the potential buyer has bad credit the landlord's refusal would not seem unreasonable. Thanks,Jon... Read More

Most contracts (other than those for personal services) are freely assignable, absent language to the contrary in the agreement.  Thus, if you contract with Beyonce to appear at your wedding, she can't assign that personal services contract to Rihanna, but if you contract with a soda provider to provide 50 bottles of assorted soft drinks, that provider probably can assign the contract to another beverage business.  Assuming your contract was validly assigned, you would have the same rights in your dealings with the assignee as you previously had in your dealings with the assignor.... Read More

I think you may have omitted a word or two, because it doesn't seem to make sense grammatically, but it appears that VocalViews is agreeing to indemnify its client for any claims that may be made relating VocalFiews' right to the data with which it has provided its client.  I can't tell exactly what VocalViews' agreement is with its client, but if, for example, VocalViews is licensing a mailing list to the client, VocalViews is agreeing to indemnify the client if someone claims that the mailing list didn't belong to VocalViews, but rather to the person making the claim, and that therefore the client had to stop using it and/or pay the true owner for its use.  From the point of view of the client, I would be happier if the indemnification language were more specific and explicit:  "VocalViews hereby undertakes to indemnify and hold harmless Client for any and all damages or expenses incurred by Client as a result of any claim or dispute with any third paty (not including assignees or other successors in interest to VocalViews or Client) relating to VocalViews' acquisition and commercial use of the Data." - In this example, Data would be defined earlier in the agreement.... Read More

As a general rule, owners of llc's are not personally liable for the llc's debts so, unless you signed a guaranty (or your husband forged your signature) agreeing to be personally liable for the llc's debts, you are not.  That's the main reason why people form corporations or llcs in the first place. If your husband won't give you further information, you can get certain documents from the government department where the llc is registered (not sure what agency in California), or from suing your husbsnd for such information.   If you still wish not to be listed as an owner of the llc, and your husband won't voluntarily agree to remove you, you can sue him for that relief as well.... Read More

It depends on whether you would be using any trademarks or other intellectual property of someone else.  For example, you couldn't use the particular interlocking "NY" design used on Yankee caps because that is a trademark of the New York Yankees.  The Yankees may have sold the trademark to MLB Properties or some other entity, but the point is that you can't use it for your commercial purposes without the trademark owner's permission, which you would have to pay for. ... Read More

Assuming he got your phone number from publicly available information, it was not illegal for him to use it.  It may constitute harassment if he calls back after being asked not to do so, but (although I'm not familiar with California law) I doubt that one or two unwanted phone calls, without any threats, would constitute the crime of harassment.  You may want to speak to your phone company about what you can do, short of changing your number to an unlisted one. ... Read More