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Andrew Monroe Baer

Andrew Baer’s Answers

41 total


  • If one company buys another company that held a contract with you, are you held responsible for said contract?

    I was paying for services at a facility which closed down completely - buildings emptied and corporate phone numbers went dead. The contracts were bought by another company, but I was never informed of this takeover and assumed the service was ter...

    Andrew’s Answer

    The "Assignment" paragraph of the contract deals with the prerequisites (if any) to assignment of a contract in connection with the sale of a business -- for example, whether notice to the other party or the other party's prior consent is required. Generally, if the contract is silent on these issues, contract rights can be purchased and assigned along with the other assets of the business being acquired (and if the acquisition was by stock purchase rather than purchase of assets, then no assignment would be deemed to have taken place at all, unless the contract explicitly treats a stock purchase or other change in control as an assignment of the contract).

    Where a contract is assigned and continues in force, the party to which it is assigned (the purchaser here) assumes all rights and obligations of the assigning party (the seller). So if the assignee is charging you but is not performing its obligations under the contract, there is a breach. Also, if assignment of the contract required prior notice to you and this was not provided, this would be a breach and might nullify the assignment if the contract so provides. The contract will likely state what the parties' respective rights and remedies are for breach. If it isn't clear, you should show the contract to a business lawyer and have him/her advise you. If you are getting charged but services are not being provided, you probably have some sort of legal remedy, although more information is needed to determine what this might be.

    Disclaimer: The foregoing is provided for informational purposes only and does not constitute legal advice. You should consult with an attorney licensed in your jurisdiction before taking definite action on this or any other legal matter.

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  • Legal to trademark a name already being used but in which is not filed?

    I am ready to go forth and trademark my artist name. It is being used by another person as well, but they have not filed it and officially trademarked it. If I file it with uspto before they do, do I beat them too it and own rights?

    Andrew’s Answer

    I agree with my colleagues. Trademark rights arise out of usage of a mark in commerce in connection with particular goods or services. If someone else is already using the same or a very similar name for the same or related services, then as the prior user they have probably acquired common-law trademark rights (i.e., rights that exist without a USPTO registration) in those geographic areas in which they are conducting marketing and sales. You should definitely consult a trademark attorney before applying for the mark, since you will need advice on possible infringement issues as well as the likelihood of obtaining a federal trademark registration. Having said all that, legal issues aside, why would you even want to brand yourself using a mark that you know is not unique to your business and services and therefore cannot function as a great differentiator? From a branding perspective, as well as a legal perspective, starting afresh with a new name might very well be the way to go.

    Disclaimer: The foregoing is provided for informational purposes only and does not constitute legal advice. You should consult with an attorney licensed in your jurisdiction before taking definite action on this or any other legal matter.

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  • Can I be sued to remove someone's name from my blog?

    A man insulted a friend of mine online on his web site. I defended my friend on my web site and referred to the attackers name and original web site. The original attacker is now threatening to sue me for using his name and is demanding I take d...

    Andrew’s Answer

    I agree with the other attorneys here -- as attorneys, we know the sad fact is that you can be sued for everything, anything and nothing. More facts are necessary to answer the specific question and determine your actual liability. If the original attacker used his name in connection with certain statements on a publicly accessible web site and you truthfully reported those statements on your site or gave what was clearly an opinion (and also did not do so in a way that suggested the existence of other facts that, if stated explicitly, would be untrue), then you would not ultimately be liable for defamation or invasion of privacy, but you might still be sued for these claims, among other others. You should talk to a lawyer and make sure you give him or her the full facts and context.

    Disclaimer: The foregoing is provided for informational purposes only and does not constitute legal advice. You should consult in person with a qualified attorney before taking definite action on this or any other legal matter.

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  • I would like to design products featuring the Coca-Cola label. Does this constitute trademark infringement?

    For example, a table displaying a piece of original coke merchandise and the trademark symbol.

    Andrew’s Answer

    I totally agree with Ms. Koslyn about infringement. Furthermore, in addition to infringement, there is a good chance you would also be liable for trademark dilution. Use of a famous (i.e., extremely well known) trademark -- there are not many, but Coca-Cola is one of them -- is dilutive, even if consumers are not likely to be confused about who is providing your goods or services, if your use is likely to dilute (i.e., blur or tarnish the distinctiveness of) the famous mark. If everybody could sell Coke merchandise, regardless of the nature or quality of the merchandise or how it related to Coke, there would certainly be a dilution problem. Definitely talk to a trademark attorney, and definitely do NOT start advertising or selling this merchandise until you have done so.

    Disclaimer: The foregoing is provided for informational purposes only and does not constitute legal advice. You should consult with an attorney licensed in your jurisdiction before taking definite action on this or any other legal matter.

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  • Copyright infringement. Who to turn to??

    Someone has taken photos of me from a website and have put them on their on website without my permission. Is it possible for me to sue them? This is really upsetting to me. I do not know who owns this website. The only information I have about th...

    Andrew’s Answer

    Talk to an IP and Internet lawyer right away. There are also couple of key facts here that are relevant to your case. First, who took the photos of you? Generally speaking, that person owns the copyrights in the photos, unless they assigned them to you in a written document. So while the other site's reproduction of the photos is probably copyright infringement, if you don't own the copyrights, you won't have standing to sue. (To bring suit for infringement, you'll also need to register the copyrights with the U.S. Copyright Office, which similarly raises the issue of who owns the copyrights.)

    Secondly, how and for what purpose are the photos being used on the other site? You may also have other claims, such as violation of your right of publicity (if your likeness is being used for commercial purposes to advertise a product or service) or false light invasion of privacy (if the photos are being used to falsely suggest your participation or involvement in, or association with, the site or some related activity).

    Where the identity of the site operator is not known and he/she cannot be contacted, an attorney take-down letter alleging copyright infringement and complying with the requirements of the safe harbor provisions of Section 512 of the Digital Millennium Copyright Act, sent to the hosting service and/or ISP, will often be sufficient to get them to remove the site. The risk, here, is that the site often quickly pops up under a different hosting service. If you filed suit, you might also be able to get the hosting service and/or ISP to turn over the identity of their customer by serving them with a subpoena.

    Disclaimer: The foregoing is provided for informational purposes only and does not constitute legal advice. You should consult with an attorney licensed in your jurisdiction before taking action on this or any other legal matter.

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  • Can I still open my own business even though I signed a contract?

    I was hired with a local wedding hair and makeup company, and signed a contract saying I couldn't open my own company within 60 miles for 2 years after I started working- however, I realized this company is not the way I want to go- I haven't work...

    Andrew’s Answer

    • Selected as best answer

    Mr. Murillo states the issues well, and I agree with his advice that you should consult a business attorney. Interpreting the scope of the restriction in the contract is important ... does it prohibit you from opening any type of company within 60 miles for 2 years, or just a company engaged in the same business as your would-be employer? The latter restriction is more reasonable and would be more likely to be upheld than the former. Also, why did you decide not to start work, and in the course of your discussions with this company were you exposed to their customer list, proprietary marketing strategies or any other information that they could rightly claim is confidential and proprietary? (If so, they could argue that, as applied to you, the restriction is necessary and reasonable to protect their legitimate competitive interests.)

    Disclaimer: The foregoing is provided for informational purposes only and does not constitute legal advice. You should consult with an attorney in person before taking action on this or any other legal matter.

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  • If a college professor gives advice and information (non documented).Can it be bundled with other information and be sold?

    Just curious on the intellectual property aspect/

    Andrew’s Answer

    More facts are necessary to answer this question. Do you mean that he/she gives this information orally and you want to publish it? To be copyrightable, original material must be fixed in a tangible medium of expression, i.e., written or recorded somehow. Ideas by themselves are not copyrightable; only the expression of those ideas can be copyrighted. In addition, it would be helpful to know what kind of information or advice you are talking about ... facts, for example, are not copyrightable by themselves, but if they are arranged, compiled or selected in some manner that reveals creative choice, this presentation is entitled to copyright protection.

    There are also other proprietary rights to consider besides copyright. Even if a professor aired information orally and never wrote it down (in which there would be no copyright issue), if you bundled or sold information using his/her name without permission, it could constitute a violation of his/her right of privacy or publicity (unless there was a fair use involved, such as writing a news story on a controversial professor's statements which were legitimately a public issue). There might also be defamation if the material was presented in a factually inaccurate manner or in a manner that suggested that existence of facts that were not true. The damages in these cases could be substantial given the value of the professor's name and reputation.

    Finally, in an academic setting, there is also the ethical issue of plagiarism to worry about, even if there is no legal copyright or privacy/publicity claim. Reselling a professor's orally expressed ideas as your own, without attribution, is hardly a way to build a reputation as a credible source in such a setting.

    Disclaimer: The foregoing is provided for informational purposes only and does not constitute legal advice. You should consult with an attorney licensed in your jurisdiction before taking definite action on this or any other legal matter.

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  • My company published my personal phone number with ouy my permission in an advertisement.

    Do I need to file a suit against the company or the individuals responsible? Are there any cases I can look up? What do i Need to do first?

    Andrew’s Answer

    I agree with the other attorney who responded that more information is necessary to determine whether or not you have a cause of action. In particular, it would be helpful to understand what products or services the advertisement was for, how your phone number was used (e.g., were people told to contact this number to respond to the ad or if they had questions about the advertised products or services?), and whether your name was identified with the phone number in the ad.

    If your phone number was intentionally used in a manner that exposed you to intrusions upon your privacy by the public, you might possibly have a cause of action for the tort of invasion of privacy based on intrusion upon seclusion, but again, this is very fact-dependent and it's impossible to judge from the information given.

    Disclaimer: The foregoing is provided for informational purposes only and does not constitute legal advice. You should consult with an attorney licensed in your jurisdiction before taking action on this or any other legal matter.

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  • Chapter 7 for California Business - Licensing Issue

    If we own a software company and a customer licenses the software but the revenues just can't support the company; and 45 days later we file CH7...can the court reverse the license and take it away from a real and honest customer? Curious as we ju...

    Andrew’s Answer

    Licenses are "executory contracts" under U.S. bankruptcy law, meaning that a debtor in possession or bankruptcy trustee can reject continuing obligations under the contract. However, under Section 365(n) of the U.S. Bankruptcy Code, which deals with licenses in intellectual property, a licensee can elect to retain its license rights, i.e., its right to use the software. It can also retain its ability to access escrowed source code covered by a supplementary technology escrow agreement. The licensor's other obligations under the contract, which may include the obligation to maintain, support and/or update the software, will disappear in this situation, but if the licensee elects to retain its license rights, the software will not be taken away from it.

    Disclaimer: The foregoing is provided for informational purposes only and does not constitute legal advice. You should consult with an attorney licensed in your jurisdiction before taking action on this or any other legal matter.

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  • Idea for product

    Hello, I have an idea to make an existing product better, but I do not want the selected company to use the idea and take it for their own. Like in the movie "Flash of Genius" where his windshield wiper idea was stolen by an auto company. What ...

    Andrew’s Answer

    Sorry for the shameless self-promotion, but you may want to check out my Avvo legal guide on how to protect ideas in business discussions. (Link provided below.) The additional wrinkle here is that your idea is an improvement to an existing product, which may be patented. That shouldn't be a legal problem if you're proposing the improvement to the patent owner, but you should just be aware if you tried to sell or manufacture your idea without them and it required you to use or sell their product as part of your offering, you might be infringing their patent or other intellectual property rights, which of course gives them leverage in any business discussion they have with you. On the other hand, your idea might be patentable or copyrightable in itself, which would give them more of an incentive to deal with you. You should consult with an IP lawyer to get an NDA in place and to determine whether you have protectible intellectual property rights in your idea -- for example, it might be worth filing a provisional patent application before the discussions occur.

    Note: The foregoing is provided for informational purposes only and does not constitute legal advice. You should consult with an attorney licensed in your jurisdiction before taking definite action on this or any other legal matter.

    (If the product is copyrighted, like much software, then modification would likely also infringe their copyright.)

    Having said all that, your improvement might be patentable or copyrightable in itself,

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