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Intellectual property advice

Napa, CA |

I see a lot of persons asking questions about patents, trademarks, copyrights, etc. on AVVO and attorneys from totally different states provide a useful, actually quite good, starting point answer, followed up with something like "call me and the first call is free." Good marketing, but if that attorney is not licensed to practice law in the questioner's state, and gives legal advice, charging for it, isn't that the unauthorized practice of law?

Attorney Answers 7

  1. Patent, trademark and copyright law are all federal and licensed attorneys in any state are entitled to file for registrations. There are state laws, like California's state trademark, as opposed to Unites States Patent and Trademark Office federal registration under the Lanham Act, but lawyers in general including those on Avvo are very careful about unauthorized practice of law in states where they are not licensed. For state specific matters they often has correspondents in those states. Thank you for the positive points mentioned in your question, such as "useful, actually quite good, starting point answer..." and "Good marketing."

    The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also terms and conditions item 9, incorporated as if it was reprinted here.

  2. The short answer is that in no case is any attorney engaging in an attorney client relationship, nor in fact offering legal advice. Most attorneys on Avvo add an automatic tag line to this effect. It is closer to standing in front of an audience and giving general interpretations.

    A longer answer, at least for these three areas is that the three areas are controlled by federal law, not local law--three different parts of the U S Code, which Congress controls. So familiarity with local statutes and case law is generally not relevant. There are exceptions when these IP matters interact with contract obligations or family law, etc. Then we generally recommend seeing a local attorney who has knowledge of both.

    Information here is general, does not create a lawyer-client relationship, nor a substitute for consulting with an experienced attorney on the specifics of your situation.

  3. Patent, copyright, and trademark law are federal statutes so any attorney who is familiar with those statutes can provide you with advice on them. Just placing a call from one state to another does not constitute "practicing law" in that other state. Lawyers place calls to other states all the time.

    So no, if the lawyer gives you competent advice over the phone, that lawyer has not engaged in the unauthorized practice of law.

  4. Lawyers who comment on questions are not practicing law. Further, most IP law issues involve questions of Federal law, not state law. It is common that law firms that specialize in IP issues are located in major cities, such as New York and San Francisco,. and many companies look to such law firms for advice on these issues. The bottom line is that unlike many areas of the law, IP law tends to be viewed on a national or even international perspective, and the lawyers and law firms that practice in this area properly hold themselves out as practicing on a national or international basis. Further, lawyers in one state are routlinely hired by clients who require legal advice about the laws of other states. While lawyers cannot maintain offices outside the states in which they practice, lawyers certainly can provide advice about laws of other states----this is often necessary because even if your client resides in the state where your practice, your client might be sued pursuant to contracts and/or claims that arise under laws of other states---or for that matter, other countries. It is not the unauthorized practice of law for lawyers to provide advice on laws of other countries or states than those in which they practice.

  5. The lawyers who answer questions here are, for the most part, just providing a public service, friend. I do not expect to generate revenue from AVVO ... That's not the point. Sometimes a spoonful of advice confers a lot of benefit.

    All comments on this site are 'in the cloud' and do not form an attorney-client relationship of any kind. Just consider them ideas for discussion. J

  6. NO, absolutely not.

    First, It is authorized, not unauthorized. Patents, trademarks and copyrights are federal law, so intellectual property lawyers can AND DO represent clients anywhere in the US.

    Second, the attorney doing the answering IS located in the state where he or she is licensed. It is no different really than if you hop in your car an drive to that attorney's office.

    Third, it is NOT the "practice of law". Read the disclaimers. These answers are free.

    You are drinking too much of that NAPA wine to think you can charge any one of us with unauthorized practice of law, particularly any registered patent attorney.

    So far, this is free to you. Until you pay a fee, I am not your lawyer and you are not my client, so you take any free advice at your sole risk. I am licensed in IL, MO, TX and am a Reg. Pat. Atty. so advice in any other jurisdiction is general advice and should be confirmed with an attorney licensed in that jurisdiction.

  7. No. Patents, trademarks, and copyright are all federal law, so any licensed attorney anywhere in the country can act on any client's behalf, no matter where in the country s/he is located.

    If we do not have a signed fee agreement I am not your attorney and this is not legal advice.