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montysimmons, Patent Prosecutor
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This is a dispute about intellectual property of a logo/brand

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This is a dispute about intellectual property of a logo/brand and recipes for a dog biscuit company. Please see the backgrund below. I have already received an answer regarding this issue from a business lawyer, but I would like an IP perspective. Thank you.



I have been building a dog biscuit company with a supposed "partner" for a while now. In fact, I did all of the work of designing the logo and the recipes by myself, without his help, for months and months under no formal agreement. About a month or two ago, we formed an LLC, but did not sign any partnership agreement. Now, I want to dissolve the LLC and move ahead with my own company. However, he is making claims to the logo design and the biscuits even though I invented them without his help before we ever had a formal LLC.

He has absolutely no evidence of any contribution to the logo design whatsoever. And I never formally assigned the property to the LLC. The logo was designed in a collaboration between myself and a graphic artist. She and I signed a personal contract (before the LLC was ever created) and the copyright actually technically still belongs to the designer. The problem now is that I want to break off from this original LLC and start my own and take the assets with me. The biscuits were created and analyzed in MY name, and the logo was designed in MY name as well. There is no written evidence saying that I granted the LLC these properties. I think there was an assumption that if the LLC was successful we would use those logos, etc. But that hasn't happened. Furthermore, I began a trademarking request in my own name for the logo, and once my partner found out I was dumping him, he began a trademarking process for the logo under the LLC name.

Now the partner is claiming that even though we didn't have a formal LLC beforehand, that we had an understanding of partnership and that anything I may have pursued/developed belongs to that partnership and that he's entitled to half of everything. Mind you, as I mentioned above, I paid for the logo development and did all the work for it myself (along with a designer who still retains the copyright to the logo) before we formed the LLC (although we did have an informal oral partnership at that time). All I want is to leave the LLC that I'm in with this guy and to start my own company, taking the logo/recipes with me. I want to know that he does not have any right to the logos and that I will not be pursued by him legally if I break away and start my own thing. At this point, as I mentioned, the LLC has no assets. We don't even have any accounts yet. I want to be completely free of him before I begin building a customer base. Also, he is claiming we should go into arbitration so we can come to some kind of partnership agreement. I am not in favor of this as a) I no longer want anything to do with him and b) I do not believe he is entitled to collect anything from my future actions, since he has put no work into building the company at all.
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  montysimmons replied 1 year ago.

montysimmons :

I will review data and get back to you.

Expert:  montysimmons replied 1 year ago.
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Expert:  replied 1 year ago.

My understandings of the facts:

 

  • (1) you and "guy" entered into a oral partnership;
  • (2) the two main assets are (a) dog biscuit recipe and (b) a logo;
  • (3) while a partnership, you designed and paid all expenses for a logo which a designer created with your help and the designer still owns the copyright in the logo;
  • (4) then you and "guy" form an LLC - which has no assets;
  • (5) You want to end the LLC and go your own way with the logo and dog biscuit recipe

 

Dissolving LLC

 

Ending the LLC is easy, just have it dissolved or let "guy" have it as long as the LLC name and logo are not the same.

 

Dog Biscuit Recipe

 

Regarding dog biscuit recipe: I will assume there are no patents on the dog biscuit recipes. If so, you both have rights to use the recipes. That said, you have no duty to give him the recipes if he does not know them. But either can use the recipes if they know them.

 

Regarding the LOGO:

 

The graphic artist is the key. If you and the graphic artist agree that the deal was the graphic artists was to keep the copyright in the logo (i.e. not a work for hire), then graphic artists still owns those rights.

 

There may be an implied or oral license that the partnership use the logo and such right could be said to have transferred to the LLC even without a written agreement.

 

Still, the graphic artist may believe the deal to be the partnership and then th eLLC can to use the license and only the partnership/LLC - not transferable

 

IF true, then such license cannot be transferred to another entity.

 

Seems only you and the graphic artist know the deal as nothing is written.

 

If so, when the LLC dissolves, so should that license depending on the agreement.

 

Thus, if true, graphic designer owns the copyright rights to the logo, and there is no requirement for him to license same to any entity once the LLC ends . . . then he decides who uses the logo in the future.

 

If so, I would have graphic designer register the logo with the copyright office ASAP (cost less than $100 if you do it yourself - not difficult).

 

Then I would have him to assign all rights to the logo over to you. If done correctly, you would be the only person that could legally use the logo.

Now the logo would need enough artistic expression to qualify as a "work of art' but I suspect it does.

If you have the copyright rights on such logo, only you would be able to use trademark in same.

Both parties can use the dog biscuit recipes. If you have any further questions, please ask.

montysimmons, Patent Prosecutor
Satisfied Customers: 225
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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Customer: replied 1 year ago.

I'm having a hard time understanding the language you used regarding the logo. In particular, I don't know what this section means:


 


There may be an implied or oral license that the partnership use the logo and such right could be said to have transferred to the LLC even without a written agreement.


 


"Still, the graphic artist may believe the deal to be the partnership and then th eLLC can to use the license and only the partnership/LLC - not transferable


 


IF true, then such license cannot be transferred to another entity."


 

Expert:  montysimmons replied 1 year ago.

Sorry, let me rephrase my answer.

 

My goal is to find the cheapest way for you to obtain your goal of:

 

  • (a) going your own way;
  • (b))with the right to use the dog biscuit recipes;
  • (c) with the exclusive right to use logo you designed;

 

(a) and (b) above are easy.

 

For (a), One simply dissolves the LLC;

For (b), One simply keeps using the dog biscuit recipes.

 

I see little way for you to stop anyone from using the dog biscuit recipes (anyone that knows the recipes) as there are no patents or non-compete agreements.

 

Therefore, issues (a) and (b) are easy : you dissolve the corporation and you use the recipes and let him use the recipes if he can.

 

As for issue (c), where you keep exclusive rights to use the logo . . . such is a more the tricky issue.

 

So, You stated: "I have been building a dog biscuit company with a supposed "partner" for a while now."

 

OK. If you have been building a business with someone else and there is no formal written agreement between the parties, then the business entity that best describes such a relationship is a partnership.

 

Such is a common occurrence when people try to start a business before actually filing the legal documents needed to form a business entity such as a corporation or LLC.

 

Now your "partner" has stated:

 

"Now the partner is claiming that even though we didn't have a formal LLC beforehand, that we had an understanding of partnership and that anything I may have pursued/developed belongs to that partnership and that he's entitled to half of everything."

 

There are good arguments to support that position although I think he would lose on the logo issue but there is a chance he would not. Further, you want the cheapest way to make him stop using the logo.

 

LOGO AGREEMENTS

 

There are no written logo agreements. You do not have anything in writing with the graphic designer regarding the logo. You simply paid her and instructed her and guided her as to want you wanted. 4

 

You further stated (basically) that the work was not a work for hire which means the graphic designer retains ownership of the IP rights in the logo design.

 

Finally, there has been no assignment from the graphic designer to anyone.

 

So, since there are no assignments and there is no written agreement between anyone and the graphic designer with regard to the logo, if you have a right to use the logo, it is an implied license (or a license that permits a party to do something that would normally require an expressed written license.

 

Now, if the LLC has a license to use the same logo, it would be because you were an agent of the partnership and the assets of the partnership passed to the LLC.

 

I am not saying I agree with this position; such is simply your x-partner's position.

 

That position is a stretch but not totally indefensible.

 

So we need the best and cheapest way around such argument, even though such argument is unlikely to win the day.

 

Assuming, arguendo, that the LLC has a license in the logo, the scope of such license can be no greater than the scope of the implied license the graphic designer granted you.

 

Since you and the graphic designer have nothing in writing, the type of implied license will depended on what you and the graphic designer contend was the agreement.

 

There are several types of licenses (whether implied or expressed) including:

  • (1) exclusive
  • (2) non-exclusive
  • (3) transferable
  • (4) non-transferable (to name just a few)

 

Thus, if your license in the logo is a exclusive non-transferable license, such a license will terminate when you stop using the license or when the LLC dissolves (again, assuming the LLC has the same license as you).

 

Such happens since the implied license you have is an exclusive non-transferable license, and if the LLC has a license to use the LOGO it has the same license.

 

Therefore, if you and the graphic designer contend that the graphic designer retained the IP rights to the logo, including copyrights, and the license granted to you is a exclusive non-transferable license, when that license terminates the graphic designer owns the logo with no duty to license to anyone, including you.

 

Thus, what I would do is:

 

  • (a) pay the graphic designer to assign all IP rights to the logo over to you . . . pay something, say $10;
  • (b) you file you a trademark application that uses the logo (this is optional, just makes your rights stronger but not necessary if you own the copyrights to the logo;
  • (c) after you have the assignment from the graphic designer in hand and have filed to register the copyright, then you can send a cease and desist to your old partner at any time demanding that he stop using your logo protected by copyright.

 

To me such is the path that gives you the strongest protection for the least amount of money.

 

The key points out of all of the above are this:

 

  • (1) you and the graphic designer have to agree the work on the logo was not a work for hire;
  • (2) that the graphic designer gave you a exclusive non-transferable license that reverted to the graphic designer if you stopped using the logo;
  • (3) Pay the graphic design for a complete assignment of all intellectual property rights in the logo;
  • (4) Register the copyright in the logo; and
  • (5) optional step, file for trademark where the mark uses the logo.

 

Good luck and let me know if such answers your question.

Customer: replied 1 year ago.

Thank you for the information. I have already amended the articles of the LLC to remove myself, and as for the recipes, the "partner" doesn't even know what they consist of since he never cared or asked. I will follow your advice to allow him use them but not divulge any more about their formulation.


 


 


I just reviewed the contract that was in place between myself and the designer and there is this clause in the contract:


 


"Copyright is in Consultant's (designer's) name. Upon completion of the work, the copyright will only be released to the Client (me, not LLC) upon the Consultant's signing of the Release of Copyright."


 


To date there has been no "release of copyright" either formal or informal from the designer to me or anyone else. But what I would like to know is does this provision in the contract give the logo definitive protection from the "partner'? In other words, because the designer hasn't released anything to me, the logo never belonged to me (and by association, never belonged to the original LLC), and rights still reside with the designer. Is this correct?



Another question on the trademarking scenario. I began a trademarking process a couple of weeks ago (without the designer's knowledge and consent - tho i think she would be amenable to giving me the rights). Now I'm wondering if I should a) switch the trademark into the designer's name and then at a later time get rights to it from her? or b) continue with the trademark in may name and retroactively obtain rights to the image from the designer. I want to take the path that best protects the logo from the "partner." So, at which point does the logo become completely free of the "partner's" grasp?


 


And he is continuing to send harassing emails. What's the best course of action vis a vis that correspondence? For now, I've simply stated that I have formally terminated our partnership by filing to remove myself from the LLC.


 


Thanks for the followup!


 

Expert:  montysimmons replied 1 year ago.

I have a question first. It appears I received a "Bad Service" rating from you with regards XXXXX XXXXX first question.

 

What that rating a mistake?

 

If not a mistake, I need to know what was wrong with the first answer so I do not make the same mistake twice.

 

 

 

Customer: replied 1 year ago.

yes, it was. i believe there was a mistake with the website saying that you had answered my question when there was no content in the response. is there something i can do to rescind that? you have been very helpful

Expert:  montysimmons replied 1 year ago.

DISCLAIMER
The information provided on this website is general information, not individualized legal advice. Your use of this information is not intended to create, and does not create, an attorney-client relationship with the site or any associated attorney. This website is not an offer to represent you. Further, my comments are not an offer to practice in a jurisdiction, in which I am not admitted.



Use of Dog Biscuit Recipe


He can only use the Recipes he knows how to make. If he does not know how to make them, he is out of luck and you have no duty to give him the recipes. You could give him a similar recipe you found on the internet and he would not know the difference anyway.


Dissolving the LLC

Now be careful here. I assumed you and your old partner (call him "Mr. X") have mutually agreed to dissolve the LLC. But it sounds like the LLC will continue but you will not be a part of it. Such is not a huge problem as long as the name of the LLC is not the same as your logo or trademarks you wish to acquire.


That said, lots of other legal issues one should be aware of to avoid issues down the road. I suspect you already know most of them. Basically what you do not want to happen is for Mr. X to do business where people/creditors think you are still a part of the transaction. Thus, if the LLC had customers and creditors they need to be informed that you are no longer part of the LLC. And you will need to fill all the proper forms with the State where the LLC was formed and keep all your documentation.



Copyrights

  • You State :
    "Copyright is in Consultant's (designer's) name. Upon completion of the work, the copyright will only be released to the Client (me, not LLC) upon the Consultant's signing of the Release of Copyright. . . . To date there has been no "release of copyright" either formal or informal from the designer to me or anyone else."

 

OK. Good, it seems graphic designer still owns the copyrights in the logo.



  • You ask: "But what I would like to know is does this provision in
    the contract give the logo definitive protection from the "partner"?

 

Not Exactly; copyright law gives the logo designer protection from everyone including Mr. X. A contract can (and often does) transfer such protection to another.

 

I would answer that question as follows: the verbiage you quoted is not sufficient to transfer the copyright rights from the logo designer to anyone (including Mr. X); thus, copyright law is still protecting the logo designer.

 

  • You State: "In other words, because
    the designer hasn't released anything to me, the logo never belonged to me (and by association, never belonged to the original LLC), and rights still reside with the designer. Is this correct?"

 

Yes. I like your answer.

 

Trademarks


You State


  • "Another question on the trademarking scenario. I began a trademarking process a couple of weeks ago (without the designer's knowledge and consent - tho i think she would be amenable to giving me the rights).
  • Now I'm wondering if I should a) switch the trademark into the designer's name and then at a later time get rights to it from her?

 

NO.

 

You should not do this. Trademark application remains in your name.


The purpose of a Trademark is to identify the source of a good. Thus, if one sees a drink with "Coca Cola" on the label one knows that beverage was manufactured by the Coke Company.


Trademarks are a way for companies to distinguish their products from others.


Thus, trademark law requires one to actually be selling a product (in more than one state - interstate commerce) or have a bona fide intent to sell a product.


The logo designer is selling nothing in interstate commerce (except the logo
itself), thus, she has no goods that need to be distinguished from another.


You, however, may apply for a trademark that will uniquely identify your products
from the products of others (perhpas a mark that includes the "Logo").


So keep the Trademark application in your name but obtain the copyright rights in the logo from the logo designer (this is the key point) ( and register them with copyright office).


  • You State
  • or
    b) continue with the trademark in may name and retroactively obtain rights to the image from the designer. I want to take the path that best protects the logo from the "partner."

 


YES. This is the way to go if you are confident you can get the copyright rights from the logo designer.

 

  • You ASK
    So, at which point does the logo become completely free of the "partner's" grasp?

 

The logo is free of Mr. X's grasp now - - - the graphic designer is in control via her copyright in the logo.


But Mr. X can chose to ignore the intellectual property of others if he wishes but I suspect he will soon find such path was a bad choice.

 

You State

 

And he is continuing to send harassing emails. What's the best course of action vis a vis that correspondence? For now, I've simply stated that I have formally terminated our partnership by filing to remove myself from the LLC.


Respond nicely (as you did above), always, and keep a paper trail. Continue to tell him you are no longer part of the LLC. There is always a chance such documents could end up in a court document one day and you want to be the good guy.

 

If he asks about the logo, just tell you believe the logo designer still owns and no one can use it without her permission.

 

Make sure any banks and creditors know you are no longer part of the LLC. Make sure all the necessary papers have been filed with the State. Keep all documentation.

 

Keep verbal conversations to a minimum so that you have a paper trail for almost all your communications.

 

I do have a question: Was the logo ever used by the LLC?

If so, how long?

Customer: replied 1 year ago.

Wow - thanks! I'm feeling more and more at ease about the situation. I will obtain the copyright in the designer's name right away.


 


So as of now I have amended the articles of the LLC to remove my name from it. As this was a nascent ventures, we have no accounts, no debts, no credits, not even any customers. I was a bit concerned about this piece you stated:


 


"But it sounds like the LLC will continue but you will not be a part of it. Such is not a huge problem as long as the name of the LLC is not the same as your logo or trademarks you wish to acquire."


 


The LLC and logo/trademark do share a name, so what is it exactly that I need to be concerned about here? Is it simply that he may continue using the name in the logo and parade as the legitimate company? On the advice of another of your colleagues on this website, I amended to remove myself from the original LLC and started my own LLC in a different state with a similar name to the logo (and thus a similar name to the original LLC). Is that a problem? I feel very confident about a) the designer's rights to the image/logo and b) the partner's lack of capacity to actually get the company up and running on his own. At this point, beyond protecting the logo, I want to know that I am within my rights to be independent and start another similar company elsewhere (by myself in a new state).


 


As the original LLC was only developed recently and the product has not yet gone to market, the LLC has no record of using the logo in any capacity. It never so much as put it on letterhead. The only place it ever was was in the development of packaging materials, which have not yet been finalized. Mind you, the designer was hired to make the packaging material as part of the overall contract, so the images/design of the packaging also fall under her contract.


 


I have registered a PO Box and a new LLC in the state of MD (the original was in FL) with a similar name to the original, and will be conducting all of my business under this new LLC. Will this be a problem? The other thing that Mr. X seems to think is that he will be entitled to a portion of my profits in the future, even though I've served him with ample notification of my leaving the LLC and starting an independent company. Am I safe in the future? Is my new company safe from him? And is it a problem that the new LLC has a similar name to the old one?


 


Thanks!


 

Customer: replied 1 year ago.

One more question: would a copyright cover an image as well? the logo consists of the name and an associated image. Just want to be sure that copyright will cover the two, on the designer's behalf

Expert:  montysimmons replied 1 year ago.

Regard the LOGO

I probably should have made the point more clear early on. I assumed the logo was more complex than simple since you needed a graphic designer.


I do not know what your logo looks like but please note that not all Logos can be protected by copyright.

 

In general, "works of art" or "pictorial, graphic or sculptural work" must embody some creative authorship.

 

Courts have held that if one seeks to register the logo (item) as a "work of art" or "pictorial, graphic or sculptural work, then the work must embody some creative authorship in its delineation or form." (John Muller v. New York Arrows)

 

But may logos qualify for both trademark and copyright protection. The key factor is whether or not your logo embodies the minimal level of creative authorship in its delineation or form.

 

For example: the Nike "Swoosh" would not qualify for copyright protection.

The more creative authorship (i.e. complex) embodied in the logo the better.

 

A logo that uses various elements in the public domain that are "selected, coordinated, and arranged in such a way as to render the work original" is one example where a LOGO is eligible for copyright protection (see Bouchat v Baltimore Ravens, Inc., 241 F.3d 350 (4th Cir 2001).

 

Examples: The "Starbucks Coffee" Logo, "Hot Wheels" Logo, and "Power Rangers" Logo are copyrighted.

 

Note that the Starbucks LOGO has the words "Starbucks Coffee" incorporated in the LOGO but copyright would not prevent another from using the words "Starbuck Coffee" - Trademark would be used to protect the words "Starbuck Coffee" (or more likely just "Starbuck").

 

Original logos, the associated art work, photographs ON product LABELS (with or without text) may be protected by copyright also. If your dog biscuits packing has a nice design that uses your logo you might want to register the copyright in such label design as well.

 

And, in some cases, the textual material in a LABEL may be protected by copyright.

 

But if you wish to protect the "text" of your LOGO, use trademark if possible.

 

It is likely the text part of the LOGO is not protected by copyright (almost a certainty). And you have no trademark in the text (at this point).

 

Further, the text may not even be eligible for trademark protection.

 

For example: you would not be able to get a trademark on the term: "Dog Biscuits" for a dog food product; Too descriptive.


If your LOGO is a circular image, for example, with a picture of a dog's head in the middle, the dog looks happy with mouth wide open and tongue hanging out, and the text: "World's Best Dog Biscuits" is written along the outer perimeter of the logo. (Just making this up I have no idea what your logo looks like).

 

The logo would likely be eligible for copyright protection but the text would not be.

 

Further, the text would not be protectable by Trademark - too descriptive.

 

If, however, the text were: "Happy Puppies" around the outside of the LOGO, that text would still not be eligible for copyright but one could get a trademark (as
long as someone else has not beat you to the name).

 

LLC

  • You ask:
  • The LLC and logo/trademark do share a name, so what is it exactly that I need to be concerned about here? Is it simply that he may continue using the name in the logo and parade as the legitimate company?

 

Well, yes, such could be a little problem, but the extent of the problem, if any, depends several factors.

 

If you used the logo before the LLC was formed, and the text of the logo is eligible for trademark, then you are in good shape. You could make him stop using the name if he became a problem.

 

If the LLC, with the "name" was formed before you used the LOGO with the "name" in interstate commerce, then you can still register the "name" but you would not be able to make him stop using the name (for his company name); although you may be able to limit his market and use of the mark. Very fact dependent.

 

  • You state:
  • On the advice of another of your colleagues on this website, I amended to remove myself from the original LLC and started my own LLC in a different state with a similar name to the logo (and thus a similar name to the original LLC). Is that a problem? I

 

 

Well, such is not necessarily a problem. The best case would be for the LLC to dissolve and go away but I suspect it takes all members of the LLC to dissolve the LLC and if Mr. X would not agree to the dissolution that option may have not been available.

 

The next best thing is to do exactly what you have done.

 

  • You State
  • feel very confident about a) the designer's rights to the image/logo and b) the partner's lack of capacity to actually get the company up and running on his own. At this point, beyond protecting the logo, I want to know that I am within my rights to be independent and start another similar company elsewhere (by myself in a new state).

 

OK, based on the facts above you can do the following:

 

(1) There are no written agreements between the parties you have mentioned and certainly no non-compete type of agreements. Thus, you can clearly end all involvement with the previous LLC and start your own LLC; No problem here.

 

(2) You can obtain a complete ASSIGNMENT for the IP in the logo from the graphic designer and then register for copyright protection for the LOGO (if it qualifies);

 

(3) You can file a trademark application to protect the text ("name") on the logo if
such text is eligible for trademark protection. One can always file a trademark application and try, but the USPTO will not approve a trademark for a term such as "dog biscuit" for products such as dog food or dog biscuits, for example.

 

(4) Once you have your trademark and registered copyrights, take a wait and see approach for a little while. See if Mr. X makes a go of the business and see if your business makes it. I sure hope it does but one never knows. The issues could resolve themselves. If both you and Mr. X make it and Mr. X becomes a problem, then you start more aggressively protecting your IP.

 

  • You State:
  • I have registered a PO Box and a new LLC in the state of MD (the original was in FL) with a similar name to the original, and will be conducting all of my business under this new LLC. Will this be a problem?

NO.

 

  • You State
  • The other thing that Mr. X seems to think is that he will be entitled to a portion of my profits in the future, even though I've served him with ample notification of my leaving the LLC and starting an independent company. Am I safe in the future? Is my new company safe from him?

 

Mr. X is making an absurd proposition if he contends he has rights in your new company or future profits. Based on what you have told me I cannot even image a legal principle that would give Mr. X rights to a portion of your profits derived from your new company.

 

  • You state:
  • And is it a problem that the new LLC has a similar name to the old one?

 

Lots of small companies have similar names. Since the original company was a startup with no customers, and you are clearly not opening the new LLC to defraud people (who would you defraud? the LLC had no creditor or customers) and there was little to no good will in the original LLC name, I see no problem.

Customer: replied 1 year ago.

Hi,


 


Thank you for your reply. I have another question. I informed the partner last week that I had filed to remove myself from the original LLC. I did not ask for anything from him other than to be released from my partnership, and I pursued that formally through the courts.


 


Now, he has written that he is filing a civil suit against me, claiming that just because I left the LLC doesn't mean that our partnership is over. He is trying to force me to continue to work with him, or to extort a percentage share of any future work that I do, outside of the LLC. As a mentioned, I informed him through email that I intended to end our partnership, and I subsequently filed to remove my name from the LLC.




The partner says that he's been informed he has a "good civil case" against me, but I cannot possibly imagine what this could be about. The only thing in dispute here would be the logo, but as I explained, I paid for that logo myself before the LLC was formed and the designer has applied for a copyright to that image/logo name.


 


He is pursuing a civil case against me, so I'm not sure where to go from here.




Thanks

Customer: replied 1 year ago.

By the way, here is the content of his latest email.


 


"Ghazaleh, Thank you for responding to me but honestly, I am disappointed that you are not willing to work with me on resolving this. We started this as friends and I was hoping that we could come to an amicable and fair conclusion. Unfortunately, everything I have proposed you have either refused, or countered with ultimatums and unrealistic deadlines for me to even consider options. This has not been an open negotiation with the goal of finding a fair conclusion.


As mentioned, I have discussed with a law firm in Florida. They have advised me to file civil suits in both Florida (on behalf of the LLC) and in DC (on my behalf as a US citizen living abroad). Although I prefer not to take this to court, you have left me no other option. Filing now allows for the cases to be scheduled during my time in the US.

I will be filing this week and you should receive something in the mail within about 20 days after. We will leave it to the courts to decide if we have a partnership, and the ownership percentage between us. I imagine they will be more generous than our discussions. As I have mentioned repeatedly, an LLC is not a requirement of a partnership, so dissolving this does nothing to dissolve the partnership. I was the first to invest money in the idea of high end dog biscuits a la Cordon Bleu recipes, before we knew exactly where this would go. We discussed Boeuf Bourgignon and Quiche Lorraine and name and design ideas. I continued to invest money in domains and website hosting. You and I have numerous emails between us in the creation and development stages of Le Petit Treat, written documentation, even you doing up business cards etc and I and the law firm are confident that I have a case (at least in Florida, as they do not practice in DC).

Up until we appear in court I am willing to discuss other options with you, such as a silent ownership agreement with a small percentage like you proposed earlier, and have our law firms work out the details and contracts.

This is not a win lose scenario unless we go to court. In which case, I too will be forced to accept what the court decides. Either way, within a few months we should have a definitive conclusion."

 


 


 


 


Hi,


 


Thank you for your reply. I have another question. I informed the partner last week that I had filed to remove myself from the original LLC. I did not ask for anything from him other than to be released from my partnership, and I pursued that formally through the courts.


 


Now, he has written that he is filing a civil suit against me, claiming that just because I left the LLC doesn't mean that our partnership is over. He is trying to force me to continue to work with him, or to extort a percentage share of any future work that I do, outside of the LLC. As a mentioned, I informed him through email that I intended to end our partnership, and I subsequently filed to remove my name from the LLC.




The partner says that he's been informed he has a "good civil case" against me, but I cannot possibly imagine what this could be about. The only thing in dispute here would be the logo, but as I explained, I paid for that logo myself before the LLC was formed and the designer has applied for a copyright to that image/logo name.


 


He is pursuing a civil case against me, so I'm not sure where to go from here.




Thanks

Expert:  montysimmons replied 1 year ago.
I am not at home right now.

Will respond tonight. Do not worry abouth this suit.
Expert:  montysimmons replied 1 year ago.

DISCLAIMER

 

The information provided on this website is general information, not individualized legal advice. Your use of this information is not intended to create, and does not create, an attorney-client relationship with the site or any associated attorney. This website is not an offer to represent you. Further, my comments are not an offer to practice in a jurisdiction, in which I am not admitted.

 

  • YOU STATE
  • Now, he has written that he is filing a civil suit against me, claiming that just because I left the LLC doesn't mean that our partnership is over. He is trying to force me to continue to work with him, or to extort a percentage share of any future work that I do, outside of the LLC. As a mentioned, I informed him through email that I intended to end our partnership, and I subsequently filed to remove my name from the LLC.

 

Please note you will need a Florida Attorney to get specific legal advice regarding contracts and business entities governed by the Stage of Florida.

 

That said, I can make the following general observations.

 

Review of facts:

 

  • (1) This is a dispute about intellectual property of a logo/brand and recipes for a dog biscuit company;
  • (2) You have been building a dog biscuit company with a supposed "partner" for a while now;
  • (3) There was no formal written partnership agreement;
  • (4) During such time you did all of the work of designing: (a) a logo, and (b) the dog biscuit recipes, without Mr. X’s help, for months and months under no formal agreement;
  • (5) There is a contract between you and graphic designer regarding logo design; Contract says: "Copyright is in Consultant's (designer's) name. Upon completion of the work, the copyright will only be released to the Client (me, not LLC) upon the Consultant's signing of the Release of Copyright."
  • (6) You paid for and did all the work on the logo along with graphic designer although you did not pall all that was owed? There the contract with the graphic designer was breached and no IP rights were transferred?
  • (7) The graphic designer has not released the logo to you or anyone at this point;
  • (8) About a month or two ago, you and “Mr. X” formed an LLC;
  • (9) The LLC is a nascent ventures with no accounts, no debts, no credits, not even any customers;
  • (10) The LLC has never used the Logo to sell a product;
  • (11) Now, you want to dissolve the LLC and move ahead with my own company;
  • (12) Mr. X is making claims to the logo design and the biscuits even though I invented them without his help before we ever had a formal LLC. Mr. X contends there was a partnership when you designed the logo and dog biscuits and, thus, he owns half;
  • (13) You filed a trademark application, in your own name, for the logo; and
  • (14) Once “Mr. X” found out you were ending the business relationship, he began a trademark process for the logo under the LLC name.
  • (15) The LLC and Logo share a name;

Recent Developments

 

  • You Stated
  • The partner says that he's been informed he has a "good civil case" against me, but I cannot possibly imagine what this could be about. The only thing in dispute here would be the logo, but as I explained, I paid for that logo myself before the LLC was formed and the designer has applied for a copyright to that image/logo name.

 

Again, someone in your position might inform Mr. X that you do not have rights in the LOGO and could not give him the rights even if you want to give him the rights.

 

Inform him that you never completed the contract with the designer and she has registered her copyright in same and it would not be wise for anyone to use the logo.

 

  • You Stated
  • Now, he has written that he is filing a civil suit against me, claiming that just because I left the LLC doesn't mean that our partnership is over.

 

That is just a stupid statement for Mr. X to make.

 

  • You Stated
  • He is trying to force me to continue to work with him, or to extort a percentage share of any future work that I do, outside of the LLC. As a mentioned, I informed him through email that I intended to end our partnership, and I subsequently filed to remove my name from the LLC.

 

Someone in your position should restate that the PARTNERSHIP ended log ago and there is nothing he can do about it. Tell him to google and study the concept of “partnership”.

 

A partnership is an arrangement where parties agree to cooperate to advance their mutual interests.

 

IF one party does not agree to a "partnership" and is forced to be a “partner” that is called “salvery”.

 

Tell him to google and study “The Emancipation Proclamation” and the Thirteenth Amendment to the US Constitution.

 

Such legal concepts ended forced “partnerships” long ago.

 

  • You State
  • He is pursuing a civil case against me, so I'm not sure where to go from here.

 

Well, anyone can file a legal suit against anyone for anything where so suit is totally lacking in a legal basis. Such a suit is frivolous, sure, but it can still be filed.

 

If you wish to fight this, I would send him the address where the Complaint could be delivered.

 

Then, if a Complaint is ever delivered, I would hire local legal counsel to file the reply. The suit should go away fairly quickly under the facts above (assuming my best guess is correct as to what the suit would be based in, that is)

 

If you do not wish to fight Mr. X, then you will need to negotiate and you may have to give up rights that you are not legally required to give up just to make him go away. Sometimes it is cheaper and quicker and less stressful to give an unreasonable person something he/she has no right to just to make them go away.

 

  • YOU STATE
  • Mr. X has stated: So Mr. X says he is going to file a law suit “this week” and “within a few months we should have a definitive conclusion."

 

LOL. Not even remotely possible to go from complaint to “definitive conclusion” in a few months. That is an absurd statement. If such is not a typo I have to wonder what else he is making up.

 

  • Conclusion
  • (1) I do not see Mr. X having much of a case. He may be entitled to use the dog biscuit recipes if he can make them.
  • (2) The partnership ended long ago and he cannot make you be his partner.
  • (3) Mr. X has on legal right to any future profits from any business entity you might form or have formed.
  • (4) As for the logo, one might remind everyone that YOU do not have the right to transfer the logo IP rights to anyone as you do not own them as the contract with the graphic designer was never fully fulfilled. That the contract with the graphic designer has been breached due to the problems with the LLC and there is no requirement for the graphic designer to deal with anyone with regard to the logo, and thus, the graphic designer still owns all IP rights in the logo. (assuming all that is true) That use of the logo by anyone without graphic designer consent would likely be a violation of her copyright in same.

 

I would not worry too much. He can only cost you money to make you defend your rights. Or you can always deal with him an give up stuff you are not legally required to give up just to make Mr. X go away.

 

Good luck with this. If you have more questions just ask.

Expert:  montysimmons replied 1 year ago.

I have a question for you.

With regard to the "brand" or "LOGO".

Assume LOGO includes an image and text.


Have you used either the image or the text or both of the logo to identify the source of your dog biscuit product?

When you filed the trademark application, did you file under:
1(a) actual use (i.e. mark already in use and associated with products being sold);

or

1(b) Intent to use.




Customer: replied 1 year ago.

It's a name with an original design drawing made by the designer. I filed under intent to use, as neither myself nor the LLC has sold any product to date, with or without the logo.


 


I'm not sure I understand the question: "Have you used either the image or the text or both of the logo to identify the source of your dog biscuit product?"


 


Thanks for your previous answer, by the way. The part about the Emancipation Proclamation made me chuckle.

Expert:  montysimmons replied 1 year ago.
You Stated

Quoting Mr. X: "I was the first to invest money in the idea of high end dog biscuits a la Cordon Bleu recipes, before we knew exactly where this would go. We discussed Boeuf Bourgignon and Quiche Lorraine and name and design ideas. I continued to invest money in domains and website hosting."

Did he pay for the recipe development?

You Stated
I'm not sure I understand the question: "Have you used either the image or the text or both of the logo to identify the source of your dog biscuit product?"

A "logo" can be just an image (like a picture of a dogs head with the dog smiling and tongue hanging out - creating a happy look)

or

an image and text (same image with the text "happy puppy dog biscuits running along the outer perimeter of the image).

One could have used:
(a) image of dog head only;
(b) text : "happy puppy dog biscuits"; and
(c) both (a) and (c) together.

I was just wanting to know if any of those three (a), (b), or (c) had been used in interstate commerce before.

Here, the logo has never been used . . . so my previous answers do not change.


Generally Speaking

Generally Speaking, when a business partner creates something for the business entity, that "something" belongs to the business entity.

Here you have no formal written partnership agreement but you and Mr. X did have a business relationship that seems best described as a partnership.

Dog biscuits

If Mr X does not know the dog biscuit recipes, and he can prove he funded their development, and there there was a partnership like business agreement between the parties, he might have a right to the recipes or a refund.

But from the facts above it seems Mr. X had nothing to do with the dog biscuit recipe development nor did he fund same.

Yet, he claims to have paid for other things for the "partnership" during the same time the biscuit recipes were developed and that the dog biscuits were developed for the partnership.

If Mr. X knows the recipes then this issue is no big deal as he knows the recipes and how to make the dog biscuits and he has the same right as anyone with such knowledge to use same (i.e. no patents on recipes).

If Mr. X does not have the recipes, then he has a bit of a mess as Mr. X does not know the recipes, and thus, he can never be sure that you will give him the exact recipe.

In addition, since the "partnership" (if there ever was one) and your involvement with the LLC has ended, you have have made improvements to the recipes. You certainly do not have any obligation to give him any recent improvements. So your dog biscuits, with new improvements, may be different and better than his dog biscuits based on the old recipes and there is nothing he can do about that (except file frivolous law suits).


LOGO Issue
It seems the biggest issue you have with Mr. X is the logo and brand name.

As stated above, generally Speaking, when a business partner creates something for the business entity, that "something" belongs to the business entity.

If the facts supported the position you created the logo for a partnership, that partnership would own what ever you created or had rights in.

Here, however, the "partnership", if it existed, was an undocumented partnership based on oral statements, actions; actions perhaps documented by some written communications.

Then the "partners" formed an LLC (Mr. X's position) but the LLC never gets past the paper work stage (basically).

No one has ever used the logo work including the partnership and the LLC.

In fact, the logo work was never completed, and, as a result, the graphic designer retained all IP in the logo.

Thus, if the IP in the logo never transferred to you, such IP certainly transferred to the partnership nor the LLC.

At best, XXXXX XXXXX X and the LLC has standing to attempt to force the graphic designer to transfer the IP rights to the LLC.

Mr. X cannot make you transfer what you do not own.

Thus, I submit the following:

(a) with regard to the logo, I say Mr. X is suing the wrong person; he should be suing the graphic designer; If he does he is almost certain to lose. But what I am certain about is he cannot force you to transfer to him the IP rights of another.

(b) With regard to the dog recipes, he is in a tough position as he cannot verify if he ever gets those recipes if he does not know them and if he knows them then he has no need to sue.

(c) With regard to the trademark :
Since no one has used the mark before, the first to file for the mark gets the mark if the mark is suitable for trademark. You quit the LLC and there is no longer a partnership and then you filed a trademark application on an Intent to use basis. Such seem perfectly illegitimate.

Is Mr. X contending the logo would make or break his business? That no one would buy his dog biscuits under another name? Once he has the recipes he can generate his own logo perhaps a better logo. Is Mr. X contending the purchase of domain name and web hosting service that one can purchase from Register.com for $150/year is simply big a loss to survive - so he is suing? Such just makes no sense to me. What does make sense to me is he is trying to be as big a pain in the behind as possible and scare you into continuing as his partner.


(d) As for Copyright in Logo: Mr. X has the same rights as you to deal with the graphic designer.


In conclusion, I simply do not see Mr. X as having much of a law suit against you. He certainly will not get from complain to judgment in a few months unless he is going to file a complain in small claims court. Such a case can go from complain to judgment in a few months.

However, the jurisdiction of such courts is very limited typically the only legal issues such courts preside over are financial issues. A small claims court will not be deciding the ownership of IP rights.

Thus, if he does file a complaint that he expects to be resolved in a "few months", it will be a complain in small claims courts and he will be almost surely be asking for money only.

At such point you can then decide if you wish to fight the issue or simply pay him to go away.
















Customer: replied 1 year ago.

Thank you for the summary - very interesting points and exactly in line with my current thinking. He never paid for recipe development, aside from the very first attempt we made a year ago. The rest of the recipe development was paid for solely by me, while I was half a world away. I have receipts to that effect and even paid for their laboratory analysis on my own. Incidentally, the current recipes look nothing like that first one we tried together.


 


Also, the logo/brand have not been used in any way prior to the time that I ended our partnership. However, I am poised to continue into the commercial market within the next month or two.


 


My question is this: Since I already formally filed for dissolution of the partnership, and have a recorded history of my intention to do so, am I safe in continuing on with my endeavors on my own? I don't want him to try and claim that what I do from now on in any way should benefit him. But at the same time, I don't want to wait forever for him to file/not file whatever bogus law suit he is pursuing.


 


I sent him an email summarizing the key points we have exchanged over the past few days and await his response to see if I have any follow up questions for you.

I agree with your assessment that is just trying to scare me into giving him something for nothing, as it seems that was his strategy all along.


 


 

Expert:  montysimmons replied 1 year ago.

In my opinion, the best shot that Mr. X would have at any future payments from you regarding the issues identified above, such will occur when/if you sell your business and he will ask for 1/2 of what you get for selling the "brand".

I have had clients that had a partnership which had a trademark; an issued trademark that was filed while both parties were clearly working as partners. Partner 1 had been using the name before Partner 2 came along and before the partnership but Partner 1 and Partner 2 officially filed for a trademark together.

The partnership ended and Partner 1 keep the trademark alive by continuing in the business for several more years. Partner 1 had an opportunity to sell the trademark and end his business and he did.

Partner 1 decided to share with old Partner 2 the money from the sale of the trademark just to avoid legal issues (not 50/50 more like 80/20 - still a nice payday for partner 2 for doing almost nothing).

The point is, if the legal issues to the logo are not resolved now, many years from now, after you have made your business and brand very valuable, and you decide to sell your business, Mr. X could slither back into the picture with his hands out looking for a windfall.

At a minimum you want to keep all your documentation on this issue so that years from now you will still have evidence needed to help you make Mr. X go away should he try to cause more problems.



Customer: replied 1 year ago.

Can you tell me more about this trademark timing thing. I may have filed for the trademark mere days/hours before he did. Would that still put me first in line for it? I filed for it in my own name, and I think a few days later he filed for it in the LLC's name. Wouldn't his trademark claim expire if he didn't keep it alive by actually conducting commerce using the brand?


 


Also, what is the best approach for protecting said brand and trademark right from the start so that he can't come back as a nuisance later? If he's going to bother pursuing a court case against me, I want to at least get something out of it, which is to prevent him from ever using the brand. For the record, by the contract that I had with the designer, she still has ownership over the drawing because she never formally signed it over to me/anyone (in the contract there was a specific clause to that effect saying that until she released the copyright in writing, it belongs to her). However, she and I have agreed that once Mr. X is out of the picture, she will sign everything over to me. We're just not doing it yet so that it doesn't get caught up in this mess. She also went ahead and copyrighted the logo in her name last week, as you advised.


 


So, what I would like to know, is what do I do in this current time period to protect that logo 100% from Mr. X in the future? And, much earlier in our exchange you had mentioned that if he does try to use the logo that is copyrighted by the deisgner that she could sue him for royalties, no? I think having someone draft legal language to that effect is at least one important thing I can do right now.

Thanks!

Expert:  montysimmons replied 1 year ago.

First, Please be careful not to post any information you would want to keep confidential via (attorney/client confidentiality) as what you provide on this site is available for public viewing.

 

 

  • You Stated
  • So, what I would like to know, is what do I do in this current time period to protect that logo 100% from Mr. X in the future? I am not sure there is a 100% answer that makes Mr. X go away forever if you turn your business into something valuable.

 

I suspect people like Mr. X will always try to scam money off the works of others.

 

  • (1) The almost 100% answer to prevent problems in the future is to not use the logo and design another one. But that does not allow you to use the logo.
  • (2) The next almost 100% answer that allows you and only you to use the logo is to pay Mr. X for an assignment for any rights that Mr. X might own in the logo. I submit his ownership interest is zero but if you can pay him a reasonable amount for his “zero” interest and obtain assignment in same then you will be well protected.
  • (3) The next path to take is to simply document everything regarding the logo. Continue the trademark application and then make a bona fide purchase from graphic designer for the copyright in the logo design. Mr. X can still cause problems but he should (i.e. not 100%) lose in the end.

 

  • You State
  • And, much earlier in our exchange you had mentioned that if he does try to use the logo that is copyrighted by the designer that she could sue him for royalties, no? I think having someone draft legal language to that effect is at least one important thing I can do right now.

 

Yes, if graphic designer still owns the copyright (and I contend she does based on the facts above) and Mr. X does not have implied consent to use the logo (he definitely does not have expressed consent from graphic designer to use the logo), and I contend Mr. X does not implied consent based on the facts above, then Mr. X cannot legally use the logo. But he can illegally use the logo and force graphic designer (or the copyright owner through assignment in the future) to sue.

 

This would be an expensive suit to lose (in the unlikely event one loses), not to mention a huge time sink and pain in the behind; thus, number (2) above (where one simply pays Mr. X for any rights he might have in logo just to make him go away) is a good path if Mr. X gives a reasonable price.

Customer: replied 1 year ago.

ok thanks, XXXXX XXXXX wait for his response and see what is next.


 


is there any way to make these responses private for now?

Expert:  montysimmons replied 1 year ago.

I do not know, but I can check.

It might be possible for you to edit your questions and remove any content you do not want to be public?

If so, go back and delete all the stuff you do not wish to be public.


Customer: replied 1 year ago.

I dont think I can change the responses.



Another question: what is the best type of lawyer to hire here? Small business? IP?



Thanks,


Ghazaleh

Expert:  montysimmons replied 1 year ago.

I believe either one would do a good job. That said, I would think the best lawyer to hire would be a lawyer well versed in business entity law and contract law. Such a lawyer may have to consult an IP lawyer but most of the main issues deal with agency, contract, business entity law in general --- issues lawyers that focus in business law would be able to address quite nicely and they likely have more experience in litigation.

IP lawyers would be well versed in the requirement to obtain and transfer IP rights and I suspect most IP lawyers do not do litigation or have much experience in same. They read about it but seldom actually litigate a case.










Customer: replied 1 year ago.

OK, thank you, XXXXX XXXXX look for a good business attorney.

 

Now that I have repeatedly told him via email and filed to remove myself from the LLC, can you confirm that our partnership is indeed over? It's important for me to be able to pinpoint the "end" date for my records.

 

Can you also elaborate this idea of the timeline of trademarking. Does the first person to have gotten to the trademark office have any advantage? And what happens if he trademark's the designer's image without her consent? Is it a problem if she copyrighted the image after he trademarked it, even though she has substantial and provable record that it is her own design and she did not release it to him? What could he be sued for? I just want to be clear on the facts.


Thanks!

Expert:  montysimmons replied 1 year ago.
If you have more questions, please ask.

Also, please remember to rate my answer.

Thanks.
Customer: replied 1 year ago.

Thanks, XXXXX XXXXX see the last questions I asked?

Expert:  montysimmons replied 1 year ago.
  • YOU ASK
  • Now that I have repeatedly told him via email and filed to remove myself from the LLC, can you confirm that our partnership is indeed over? It's important for me to be able to pinpoint the "end" date for my records.

 

 

I cannot give specific legal advice here, or to anyone regarding the laws of the state of Florida. I am not licensed to practice in Florida.

 

What I can say is that based on the facts above, generally speaking, a "partnership", if one ever existed, between two parties ends (or is converted to an LLC) on the date the parties form an LLC. Such is the purpose of forming the LLC. If the parties decide to go their own way, and end the LLC, or one party leaves the LLC, the parties' business relationship has ended period.

 

What one has to look out for is to verify ALL clients, customers, suppliers, bankers, creditors, etc., who considered the parties one business entity understand such has changed and that the business relationship has ended.

 

I suspect the the state of Florida is the same as above.

 

 

 

  • YOU ASK
  • Can you also elaborate this idea of the timeline of trademarking. Does the first person to have gotten to the trademark office have any advantage?

Very fact specific question. If the mark has not been used before, as in your case, and two applications file for the same mark on an Intent to Use basis, the first to file wins.

 

If the "loser" believes some kind of fraud has been committed, once the mark has been allowed, the loser can file an opposition proceeding and present his/her case to the USPTO and try to cause problems.

 

 

  • YOU ASK
  • And what happens if he trademark's the designer's image without her consent?

 

Such is not a problem for the trademark unless the designer makes it a problem. Then she can file an opposition as stated above.

 

 

YOU ASK

Is it a problem if she copyrighted the image after he trademarked it, even though she has substantial and provable record that it is her own design and she did not release it to him?

 

 

His "trademark" has no affect on designer's copyright. Designer's copyright attached to the item as soon as the designer created the item. All she did was register the copyright. Copyright in a design ALWAYS comes before a trademark in same.

 

 

  • YOU ASK
  • What could he be sued for? I just want to be clear on the facts.

 

 

IF anyone uses an item that is protected by copyright without permission from the copyright owner, the unauthorized user of the time can be sued for copyright infringement. Damages vary but if copyright in the work/item has been registered, statutory damages may apply, and if the unauthorized work is willful, the damages can be substantial.

Customer: replied 1 year ago.

thanks for all of your help! i've reviewed everything carefully and although I will be getting a lawyer on retainer soon, i intend to settle this out of court for a very small percentage equity in the company. at the end of the day, i think it would be easier to do this than to continue with ongoing headache of court cases and potential lawsuits down the line. besides, there is always a risk that once something goes to court i'll end up with less than i would have had in a settlement.


 


i really appreciate all of your help and you've really empowered me to move ahead boldly in this matter. i am at work at the moment, but i will go back and rate all of your correspondence this afternoon.


 


thanks again!

Expert:  montysimmons replied 1 year ago.
OK. Come back when you have more questions. Good luck.

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