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Tamara Lynn Harper

Tamara Harper’s Answers

35 total

  • Denied unemployment extension here in California.

    Received a letter stating that "You are not qualified for extended unemployment benefits under.the emergency unemployment compensation extension because you do not have earnings in excess of 40 times your weekly benefit amount or 1.5 times the hi...

    Tamara’s Answer

    Yes you have the right to appeal, provided you do so timely. Look at the date of mailing of the letter and there will be a paragraph which tells you about your right to appeal. You will need to locate your initial UI award letter which calculates your weekly benefit amount and your highest quarter calculations. You may find a discrepancy with your prior year W2 earnings and need to contact your last employer to make sure they filed and reported you on their EDD Form DE-6. To file a successful appeal, you must send in the form sent with the letter together with evidence that you have earned the required earnings amount. Make copies of everything that you send. An administrative law judge will make a ruling and may contact you for further evidence if needed shortly after receiving your appeal.

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  • A corporation I am an officer of is being sued. Can they come after me and my personal assets.

    I am named as the person sued under the fictitious name of ____ in a civil lawsuit against a corporation for breach of contract on a second story parking garage waterproofing job . The job was completed to spec. and passed city final inspection. A...

    Tamara’s Answer

    I would recommend that you first have your corporate records books and files reviewed for compliance and to ensure the corporate veil cannot be pierced. Second you should seek the advise of a litigation attorney who is also familiar with corporate statutes and inquire about the probability and likelihood of filing a demurrer to the complaint to get you personally out of the lawsuit. In order to enforce a judgment against your personal assets, the Plaintiff must first have a judgment against you. You should review your corporate documents for the indemnification provisions within your Articles as well as your Organizational Minutes and seek indemnification from the corporation. There are other ways besides a demurrer to get you out of the suit. Deadlines are running if you have been served with a complaint and if you do not answer, a default judgment may be entered against you. If you need time to answer, call the Plaintiff's attorney and seek an extension of time to respond of 30 days and confirm such in writing. Don't try to tread the waters of litigation on your own and seek advise of counsel quickly.

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  • Is this trademark infringement?

    My wife and I own a vacation condo on a golf course (lets just say "xyz golf course (resort)") which we rent out by owner...We are legally registered as a business, and so on and so forth (regarding license and taxes). We advertise our condo on th...

    Tamara’s Answer

    If you are simply using the name as a geographic description of a place, it should not be trademark infringement. You should have an attorney review quickly the way you are advertising and using the name. It may be that they simply do not want you renting it yourself but rather through their program.

    Remember that just because they may not have a federally registered trademark, they could still have common law rights. Trademark rights arise in the United States from the actual use of the mark. Thus, if a product is sold under a brand name, common law trademark rights have been created. This is especially true once consumers view the brand name as an indicator the product's source. Common law marks are marks protected because they have been adopted and used, and the public recognizes the products or services identified by the mark as coming from a particular source. The term "common law" indicates that the trademark rights that are developed through use are not governed by statute. Instead, common law trademark rights have been developed under a judicially created scheme of rights governed by state law. There is an article upon my website that you may find of use in the area of trademark rights.

    The bottom line is whether or not you are using their mark in commerce and profiting from such and there is an argument to be made for such. It really depends upon how you are using the mark and the ad. A specific review of such would be recommended. Trademark infringement is a complicated area of the law and federal infringement litigation is expensive.

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  • What are my obligations to the trademark holder?

    I listed a photographic negative for sale on eBay. The subject was a train and the shot was taken at a public event (fair) in 1949. The photographer was a private citizen unconnected to the train or fair. I was notified - threatened actually -...

    Tamara’s Answer

    Copyright protects “original works of authorship” that are fixed in a tangible form of expression. If the person is objecting to the name of the train, then I do not see the legal problem presented. I recommend that you show the letter to an attorney for specific advice. I would however, expect that the person objecting is claiming copyright rights to the photo itself. Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents are not eligible for federal copyright registration. The name of the train may fall into this category. You should check with the U.S. Library of Congress as to whether or not the work is registered as a copyright or check with the owner claiming rights. There are further articles regarding copyright upon my website that you may find of use. I do not believe that you are using the copyright in a fair use manner since you are deriving profit from the sale upon the internet. You may inquire with the registered owner or owner claiming copyright about a licensing agreement or royalties agreement. The owner may be agreeable to receiving a portion of the profit. An attorney can prepare a simple licensing agreement for this purpose.

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  • Tradename infringement on a registered trademark

    I'm a full time computer consultant and setup my sole proprietorship in my state of florida (fictitious name, state resell license, etc.) in 2001 and have used the same name as long ago as 1988 in CA. I recently received a letter asking me to cea...

    Tamara’s Answer

    Common Law Trademark Rights - Trademark rights arise in the United States from the actual use of the mark. Thus, if a product is sold under a brand name, common law trademark rights have been created. This is especially true once consumers view the brand name as an indicator the product's source. Common law marks are marks protected because they have been adopted and used, and the public recognizes the products or services identified by the mark as coming from a particular source. The term "common law" indicates that the trademark rights that are developed through use are not governed by statute. Instead, common law trademark rights have been developed under a judicially created scheme of rights governed by state law.

    Coexistence of Federal, State, and Common Law Trademark Rights - Federal trademark law coexists with state and common-law trademark rights. Federal trademark law is embodied in the Lanham Act. The Lanham Act is based upon the Commerce Clause of the Constitution. Therefore, to obtain a federal trademark registration, in most cases the owner of a mark must demonstrate that the mark is used in a type of commerce that may be regulated by Congress.

    The Trademark Law Reform Act of 1988 amended the Lanham Act to establish trademark rights, which vest upon registration following use of the mark in commerce, as of the filing date of a trademark application indicating a bona fide intent to use the mark in commerce. For trademarks used in commerce, federal trademark protection is available under the Lanham Act.

    Many states have trademark registration statutes that resemble the Lanham Act, and all states protect unregistered trademarks under the common law of trademarks. A trademark registered under the Lanham Act has nationwide protection. Today federal law provides the main and the most extensive source of trademark protection, although state common law actions are still available.

    State and Federal Registration Systems - Registration at either the federal or state level is not necessary to create or maintain ownership rights in a mark. State registration systems exist throughout the country to allow the owners of common law marks to register them if they are used within a particular state. As commerce between the various states evolved, the federal system of registration emerged to provide protection for marks in interstate commerce. Federal protection may be available for the name of a product and/or service, a logo, or any other mark that identifies the source of a product or service. Common law and state registration rights are enhanced by the benefits associated with federal registration.

    Federal registration is not required to establish common law rights in a mark, nor is it required to begin use of a mark. Federal registration is almost always recommended and gives a trademark owner substantial additional rights not available under common law.

    Limited to Geographic Area of Mark - Common law trademark rights are limited to the geographic area in which the mark is used. It can be difficult to discover whether anyone has trademark rights in a particular mark because no registration is required in order to establish common law rights to a trademark.

    First-in-Time Rule - The general rule is often referred to as "first-in-time," which states that the first person or entity to use a trademark in commerce receives common law protection for the use of that trademark. Thus, this "first person" can prevent others from using that same trademark even if this "first person" never registered the mark. The first business to use a trademark generally obtains certain common law rights to it, whether or not it is registered. The owners of unregistered trademarks may indicate their claim to common law rights to the trademark by using "TM" with it. Priority of trademark rights between owners of confusingly similar marks, regardless of whether the marks are federally registered, is based upon first use.

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  • Power of attorney? Next of Kin? Father is in hospital under full sedation, can not speak, is not coherant, is on ventalator!

    My father has no living trust or will in testament. Hospital social worker wants me, son, to apply for medi-cal and Social security on his behalf. Speaking to hospital financial counselor, I need financial records to apply. By applying for medi-ca...

    Tamara’s Answer

    I am sorry to hear about your father. A power of attorney would allow to act for him on his behalf financially and perhaps medically, if you also had HIPAA Declaration, and Durable Power of Attorney for Health Care. Unfortunately, you cannot obtain these documents, as your father is unable to have them prepared for him and sign them. You cannot do so for him. When he recovers, he may then seek out these documents in addition to other estate planning documents. You may be able to apply for Social Security on his behalf and act as his Representative Payee, but need to seek the advice of a SSA lawyer. Again, I believe that they would required a Power of Attorney. You cannot sign the applications for your father for him without having the power of attorney. You would not be responsible, if you were the power of attorney, but do have fiduciary duties. In the event that your father passes, you may need to file for probate depending upon the types of assets that he owns.

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  • My grandmother passed away in 2005 and left a trust with 3 trustees and 4 beneficiares

    One of the trustees refuses to distribute the assets as instructed in the trust left by my grandmother. One beneficiary has since passed away and the other 3 are waiting and asking what can they do to get this trust distributed. Can we legally do ...

    Tamara’s Answer

    If the trustee is not performing his or her fiduciary duty, e.g. accounting, reporting, distributing the trust in accordance with the trust documents, then you may need to file a petition to remove the trustee and seek court intervention. The trust may simply instruct the payment of income and not principal and continue in this fashion. I recommend that you have the trust reviewed by a counsel in your area and explain to you your rights as a beneficiary under this particular trust in question.

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  • RE: Inheritance distribution payment method

    The Probate Attorney seems to 'think it cumbersome to send payment via USPS Priority Mail/Signature Required'! He advised me it will 'delay the payment getting to me by 'a few days more'!!! I advised him, via email, that if possible they could 'e...

    Tamara’s Answer

    In my practice I generally have the devisee pick up the inheritance check, title etc. and sign the Receipt of Distributee at the same time. Or I have the personal representative deliver such. The assets to be transferred are not handled through the mail - e.g. deed, large check etc. as these items are too important, can be lost and subject to fraud. Additionally, the Receipt of Distributee needs to be signed and then filed with the Court.

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  • Parents died, no will, house in probate, need equity to pay off creditors. grandson wants house, can we tranfer his name .

    how can we get the equity ? And tranfer grand son name?

    Tamara’s Answer

    The creditors must be notified using the Notice to Creditors Judicial Counsel forms and complying with the probate code for such - notice, serving, filing etc. The creditors will then file their claims for the court to decide upon and confirm payment. The house cannot be transferred to the grandson without a court order. You will need to wait to inherit the house pursuant to the final court distribution and conclusion of the probate. You need to be represented by probate counsel in your area.

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  • Does Mom need to go through probate for the house (or stocks, cars) if it's in her name and her husband's. He recently died.

    Stepfather died w/o a will, has two grown children who disowned him. Does mom need to notifty them during probate? Are they entitled to anything when he left her as the beneficiary? Mom already transferred the the bank money into a separate acc...

    Tamara’s Answer

    Probate procedures in California are complicated. Your step father passed intestate, or without a will and a probate will need to be filed. Under the probate code, family relations of certain degrees must be notified. The children will need to be notified. If all of the assets are community property, then you mother will inherit as spouse. However, if there are any assets held in joint tenancy or separate property, your mother may not be entitled to those assets in their entirety. I recommend that a probate attorney be consulted in your area.

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