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Matthew Joseph Kading

Matthew Kading’s Answers

32 total

  • I received a ticket for cell phone use while driving a cmv. I did have the phone in my hand but was only plugging it in

    its a smart phone and I have proof there was no calls or texts during this period of time or within a hour of getting pulled over. I have no moving violations on my record in the past 11 years. what should I be expecting to face with this? is ther...

    Matthew’s Answer

    This question needs to be asked in the Criminal Law or Transportation Law practice areas. Unfortunately, telecommunications law attorneys are not equipped to answer your question responsibly (unless of course they also practice criminal and/or OTR Transportation Law). Best of luck to you.

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  • Are text messages and verbal agreements legally binding

    I did business with someone via text messages. However when I don't accommodate his personal needs which are not part of our agreements he likes to change the plans . Just recently he agreed to let me pay him to not releasing a video . However ...

    Matthew’s Answer

    I agree with my colleague, but would also add a couple of additional suggestions. Also, you may simply wish to contact your local prosecuting attorney. The specific nature of your situation and your "agreement[s]" with the other party are unclear. It's impossible to tell if there is extortion taking place here or if there is some form of contractual obligation between the two of you. Any responsible attorney would need much more specific and detailed information to give you an informed and professional response. My best advice: contact your local prosecutor, police or criminal defense attorney if you feel like you are being "blackmailed" or extorted.

    Regards,

    Matt Kading
    mjkading@alchemistlaw.com
    www.alchemistlaw.com

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  • Can I sue an ex-boyfriend for abuse?

    I am pressing charges against my ex. He has yet to be convicted. Can I sue him for emotional damage, bills from psychiatrists for me and my daughter, and wages lost from work as a result of the emotional damage he's caused?

    Matthew’s Answer

    The short answer to your question: Yes, you can sue your ex under different types of intentional torts depending on the type of abuse you suffered--mental, emotional, physical, etc. It would, however, be irresponsible for me to attempt to answer the specifics of your question without additional facts--i.e. the specifics of your situation.

    Generally speaking, there exists a cause of action for intentional infliction of emotional distress in most states. Your ex must have, by extreme and outrageous conduct, intentionally or recklessly caused you severe mental distress. Most states no longer require that the victim suffer physical manifestations of the mental distress. [See, e.g., State Rubbish Collectors Ass'n v. Siliznoff, 240 P.2d 282 (Cal. 1952).] Additionally, the following must be proved by a preponderance of the evidence:

    (1) The defendant (your ex) either intended the distress OR intended the conduct and knew or should have known the distress was likely to occur. For recovery under intentional infliction of emotional distress, you would need to prove that your ex intended to cause you severe emotional distress or acted with reckless disregard as to whether you would suffer severe distress. Although characterized as an “intentional” tort, recklessness, in addition to intent, generally suffices for liability. [See Restatement § 46 cmt. i.]; and

    (2) Your ex's conduct must have been extreme and outrageous. Extreme and outrageous conduct is defined as behavior which is “beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.” [Restatement § 46 cmt. d.] The vulnerability of the victim and the relationship of the defendant to the victim can be critical.

    Damages and causation are entirely separate-but no less important-animals. These issues are beyond the scope of this forum and are best discussed with a reputable civil litigator in your area. Tort damages include nominal damages, compensatory damages, and punitive damages.

    Nominal damages are a symbolic award (often one dollar) given to the plaintiff when liability for a tort is established but no actual harm is proven. [See Restatement § 907.]

    Compensatory damages are awarded to a person to indemnify for personal injury, property, and other economic harm sustained by the victim. [See Restatement § 903.] Compensatory damages are awarded for both pecuniary and non-pecuniary losses. Unlike economic loss, pain and suffering, and other forms of mental distress have no obvious monetary equivalent. This valuation problem has generated controversy over the desirability of compensating for pain and suffering at all. [See, e.g., Seffert v. Los Angeles Transit Lines, 364 P.2d 337 (Cal. 1961).]

    Punitive damages are awarded to punish and deter particularly egregious conduct. [See Restatement § 908.]

    This is merely intended as a jumping off point---you should consult a civil litigation attorney in your area to discuss the specifics of your situation and the prudence of filing such a suit. Best of luck to you. Take care.

    Matt Kading
    mjkading@alchemistlaw.com
    www.alchemistlaw.com

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  • Is there an affordable way to protect intellectual property (for inventions/new products)?

    It's easy and cheap to copyright a screenplay, music, or even a film. Why is it so complicated and expensive with inventions? What's the difference? Aren't they're both inventions? Anyway, I am looking for an affordable way to get it done, especia...

    Matthew’s Answer

    Unfortunately, as my colleagues have pointed out, that is not the current state of the law--it has not been that way for nearly a half-century. While your inventions may be fantastic, you're ideas on raising capital to patent those inventions are misinformed and could lead you or others down that infamous creek w/o the proverbial paddle. I practice primarily in the area of IP litigation and this idea is rife with opportunities for those less honest and trustworthy than the majority of us. You're best bet, find a patent attorney that can get this filed for you--at least provisionally and at a reasonable fee. If you do some shopping around and bargain with certain patent attorneys (especially those in small, solo or virtual firms), you might be pleasantly surprised at the arrangements that can be made. Please, however, seek guidance from a qualified attorney before someone else beats you to the PTO. All my best.

    Regards,

    Matt
    Matthew J. Kading
    mjk@alchemistlaw.com
    www.alchemistlaw.com

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  • I would like to be a non-resident unclamied property finder for California. Is it legal to contact California residents?

    I would like to be a non-resident unclaimed property finder (investigator) for California residents. I would charge a fee to help residents claim their property or cash. Is it legal to make initial contact with California residents to help them...

    Matthew’s Answer

    My colleague is right--contacting California residents from Illinois for the purposes of "helping them claim unclaimed property for a fee" would subject you to the jurisdiction of California state (and Federal District) courts. Your contact with residents of California would, and no pun intended here, amount to "sufficient minimum contacts" with the state of California and giving rise to personal jurisdiction over you in a California court. I think, however, the placement of this question in the "Intellectual Property" category was an oversight--you're obviously not helping people find their lost patents, ©s , or TMs....Simply tangible personal property and cash, correct? If so, you may find more meaningful responses in another category on AVVO.

    Regards,

    Matt
    Matthew J. Kading
    Alchemy IP Law Group
    mjk@alchemistlaw.com

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  • Can text messages be used as proof in a civil suit to collect a debt ?

    a man owes me $3700 and I have text messages to prove it

    Matthew’s Answer

    As with all evidence, the key here is authentication. Here’s the basic rule: Before you can introduce a writing into evidence (including a text message), you have to make a preliminary showing of relevance to the issues to be decided in the action. This usually entails authenticating the writing, i.e., proving that it was made or signed by its purported maker.

    How do you authenticate a text message? Don’t be thrown by the new technology, it’s the same as with other writings under the rules of evidence. Text messages can be authenticated under the laws and rules of evidence of most states through:

    (1) Direct testimony of a witness who saw the messages created or executed;
    (2) Distinctive characteristics of the message itself; and
    (3) Circumstantial proof of authenticity.

    This is only a basic overview regarding the rules of admissibility of evidence, and I would need more factual information to give you a meaningful and responsible answer. Feel free to post additional information about the character, context and specific language of the text messages, and I may be able to provide you with a more substantial answer. Best of luck to you.

    Regards,

    Matt

    Matthew Kading
    Alchemy Law Group PLLC
    http://www.alchemistlaw.com
    mjk@alchemistlaw.com

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  • I got a call from my university's IT saying they had been contacted by a company claiming I received copyrighted material.

    I recently received a phone call from my university's IT department saying they had been contacted by a media company saying that I illegally downloaded copyrighted material. I do not live on campus , but the media company contacted the university...

    Matthew’s Answer

    This is a complex set of facts and, from the information you've provided, I would strongly suggest that you contact an attorney in your area that is familiar with these issues--i.e., an experienced IP litigator with experience in © infringement. and possibly an education lawyer

    With the understanding that you maintain this was a result of a "root kit" and/or computer virus, (my understanding of a "rootkit" is it is a stealthy type of software, often malicious, designed to hide the existence of certain processes or programs from normal methods of detection and enable privileged access to a computer thereby allowing the person that installed the backdoor the ability to use your user account to access the university's network and download ©ed materials) it would be unprofessional and a disservice to provide you with a specific answer to your question without an exhaustive recitation of the facts in your case.

    I can, however, provide you with some guidelines to help you clearly delineate the issues so you may confront them individually and as a whole--preferably with an attorney that is familiar with these issues.

    For our purposes, I'm going to assume that "media" means either music, movies or software, all of which can be protected under U.S. © law. According to the US Copyright Office, "copyright infringement occurs when a copyrighted work is reproduced, distributed . . .without the permission of the copyright owner."

    Generally, you are infringing copyright if you download or store copyrighted materials on your computer without the permission of the copyright owner, unless fair use or another exemption under copyright law applies. Most downloading over the Internet of commercially available copyrighted works, such as music or movies, through file sharing systems is illegal. Moreover, it is a common mistake to believe that only sharing or "seeding" media using p2p or other software is illegal. Downloading the material is, however, © infringement as well.

    So now we're left with your specific factual situation. You appear to concede that the alleged illegal downloading occurred and facilitated your university network account without your knowledge or permission. Assuming this is true, I would need more facts to provide a clear, concise and, most importantly, responsible answer.

    For instance, does the university log all network traffic on an account by IP address? Was your IP address logged and are you alleging that your IP address was spoofed? (I realize that someone could--and likely would--use a proxy to access your university network account if they were doing so illegally and without your knowledge, but some criminals are very, well, stupid and he or she may have left breadcrumbs). Have you given your login information out to anyone? Does anyone have physical access to any location where your network credentials are stored?

    These are simply a few of the multitude of questions you should be asking yourself in preparation for any possible litigation by the © holder or disciplinary action by the university. I understand you have limited financial resources (which I can empathize with as my law school loans still carry a balance), so you may need to act as your own detective and try and figure out what happened.

    Playing devil's advocate, if YOU did the downloading, it's clear that you committed copyright infringement absent defenses such as the "fair use" doctrine and a couple of others. My best professional advice, find a lawyer that is willing to take this case for a reduced fee or pro bono (there are plenty of us out there that remember what it is to be a struggling student), and sit down with the university IT department to find out exactly what happened here.

    Regards,

    Matthew Kading
    Alchemy Law Group PLLC
    http://www.alchemistlaw.com
    mjk@alchemistlaw

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  • Can i use site's logos in an app?

    I am currently making an app with links to major sites. When you tap on their logo you will be directed to their sites. The question is if i can use their logos in the app. Thanks

    Matthew’s Answer

    If you used the logos in your commercially available app, without the mark owner's permission or license, a deeper analysis is required. Logos are protected by U.S. trademark law, not copyright, and fair use of a trademark is not the same as fair use of copyrighted work. The reasoning behind fair use in either instance, however, is similar as it protects a fundamental right of free expression. Fair use allows the use of a logo without seeking permission from the trademark owner, but only under certain circumstances.

    Trademark infringement is a violation of the exclusive rights attaching to a mark without the authorization of the trademark owner or any licensees. Infringement may occur when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the ® covers.

    In many countries (but not in countries like the United States, which recognizes common law trademark rights), a trademark which is not ® cannot be "infringed" as such, and the trademark owner cannot bring infringement proceedings. Instead, the owner may be able to commence proceedings under the common law for passing off or misrepresentation, or under legislation which prohibits unfair business practices. Infringement of trade dress may also be actionable.

    Where the respective marks or products or services are not identical, similarity will generally be assessed by reference to whether there is a likelihood of confusion that consumers will believe the products or services originated from the trademark owner.

    Likelihood of confusion is not necessarily measured by actual consumer confusion, though normally one of the elements, but by a series of criteria Courts have established. A prime example is the test announced by the Ninth Circuit Court of Appeals in AMF, Inc v Sleekcraft Boats. The Court there announced eight specific elements to measure likelihood of confusion:
    (1) Strength of the ®; (2) Proximity of the goods; (3) Similarity of the ®s; (Evidence of actual confusion; (5) Marketing channels used; (6) Type of goods and the degree of care likely to be exercised by the purchaser; (7) Defendant's intent in selecting the ®; and, (8) Likelihood of expansion of the product lines.

    U.S. trademark law as set forth in the Lanham Act provides for a non-owner of a logo registered as a ® to make fair use or “nominative use” without prior permission from the trademark owner. Logos as ®s also can be protected by state law and court rulings in common law. Unlike a copyright, the ® ownership of a logo could potentially last forever. But logos don’t have to be registered as trademarks to be protected under common law. The law allows the owner of a ® logo to attempt to prevent any appropriation of the logo for use on competing goods or services or any use that could cause consumer confusion on ownership or endorsement. The rights of the logo owner, however, are not absolute.

    The fair use or nominative use of a logo is recognized for purposes of description and identification. A newspaper, for instance, can incorporate a corporate logo in an article about a company’s annual report. Trademark allows a nonfiction work to use a trademarked logo only to describe or identify the product or service of the company it represents. It might not be considered fair use, for instance, for a book on the general condition of the auto industry to incorporate only the logo of Ford on its cover. An article on the release of a new product using the logo of a competitor likely to be found an infringement of a ®.

    A logo cannot be used in a way to suggest an endorsement by the logo’s owner where none exists. Selling T-shirts with the unlicensed logo of a rock band on tour is an infringement of trademark, and a cease & desist letter from the band's attorney. Best talk this through with an experienced IP lawyer.

    Regards,

    MJ Kading

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  • Can I use a text from my sister saying she will cancel her membership on my account in small claims court.

    She signed with me as her guardian on a gym member ship when she was 17 now she is 18 and refuses to cancel her member ship or to put under her account or to pay. Can I take her to small claims and win? I have a text saying she will cancel members...

    Matthew’s Answer

    The texts, in another situation, could amount to something like anticipatory repudiation---but not here. At the very least, you acted as a co-signer/obligor on the membership agreement. Under most circumstances, your exposure here is more that that of a co-obligor under the agreement. The fact that she was 17 at the time the agreement was signed is also important here: under most circumstances, a minor cannot enter into a legally binding contract. You are likely on the hook here, but it would be in your best interest to contact the gym management and see if you can work something out for the remaining term and-as the attorney above mentioned-let the gym no that you will not be renewing the agreement after the term expires--preferably both orally and in writing. Best of luck to you.

    Sincerely,

    Matt

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  • Can text messages be used against me in court if they were stolen off my phone? My phone has a lock option and they got thru it.

    The messages aren't anything criminal, but the fact my phone was hacked is illegal, makin any evidence against me inadmissable right?

    Matthew’s Answer

    Your question is a bit vague in some factual areas. The most glaring of which is who "stole" the SMS messages from your phone and what kind of suit you find yourself in the middle of -- criminal or civil. First, if the police illegally retrieved private messages from YOUR PHONE, and this is a criminal trial, the prosecutor would have a nearly impossible time fighting a motion in limine or to exclude the evidence.

    This does not account for the fact that if these SMS messages were sent and delivered to a 3rd party, the police and/or prosecutor could simply ask the 3rd party to see the messages at issue and there is nearly nothing that could protect you unless the texts amounted to a privileged communication (attorney, doctor, spouse, clergy, etc.)

    It's an altogether different story if this is a civil action, as the attorney above me stated, judges frown upon conducting trials within trials, and while illegally (if in fact the messages were obtained illegally) gained evidence is frowned upon by the courts, it's not per se inadmissible.

    Your most prudent path would be to discuss this matter with a local attorney well versed in civil or criminal litigation and the admissibility of evidence at trial. Best of luck to you.

    Very Truly Yours,

    Matthew Kading

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