Legal Articles

Trademark Registration In India

(category: Legal, Word count: 513)
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A trademark refers to any word , symbol or letters or a combination of these that is used to mark the product so as to distinguish it from the product of another producer. The trademark is useful to make the public aware of the producer or the source of the product. Trademarks play a significant role in product marketing and thus there are certain rules laid down for the registration of trademarks. Every country or nation has a set of rules governing the registration of trademarks. India also has laid down a set of laws governing the registration of trademarks. For trademarks registeration in India the owner has to file an application in writing with the Registrar of Trade Marks in the required format.

Different states of India have their own particular offices wherein one can file the application for trademark registration . For instance for trademarks registration in Chennai , one has to file the application as per the prescribed format and make the payment of the fees either by cash, bank draft , money order or postal order favouring "Deputy Registrar of Trade marks", Chennai. For any other information related to the registration of trademarks in Chennai the Deputy Registrar of Trademarks at the Trade Marks Registry in Rajaji Bhavan , Chennai may be contacted.

How to file trademark application in India

The Trade Marks Act, 1999 governs all the matters related to trademarks and holds good throughout India. By registering a particular trademark the person gets exclusive rights for its use. Although it is not compulsory by law to register a trademark , registering the trademark provides legal protection to it.

The trademark offices in India are situated at five places namely , Ahmedabad, Mumbai, Kolkota, Delhi and Chennai. For the registration of a trademark, the application must be filed in Form TM-1 in any of the five offices of the Trademarks Registry within whose jurisdiction the business office would fall. A fee of Rs. 2500/- must accompany the application form. The application is then processed to check if the trademark is unique and not one that is already registered. If found valid then the next step would involve the publishing of the trademark in the Trade Marks Journal allowing others a chance to raise objection, if any. If it is found that there is no objection from anybody then it is registered as a valid trademark and a certificate is duly issued. In case of any objection and the application rejected by the authority the applicant has a chance for appeal to the Intellectual Property Appellate Board.

The general term for which a trademark is registered is for 10 years after which it has to be renewed . One can renew it for another 10 years after the expiry of the first 10 years. In case a registered trademark is not renewed then it is deleted from the register of trademarks.

Registering a trademark although not compulsory as per the law , is beneficial due to the legal protection that it offers.

Everyone Should Have A Living Will

(category: Legal, Word count: 650)
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According to information provided by http://www.plan-my-estate.com an an estate planning and asset protection resource web site, a living will, known in most states as a Directive to Physicians or Healthcare Directive, sets out your wishes about what extended medical treatment should be withheld or provided if you become unable to communicate those wishes. The directive creates a contract with the attending doctor. Once the doctor receives a properly signed and witnessed directive, he or she is under a duty either to honor its instructions or to make sure you are transferred to the care of another doctor who will.

There is an old saying, "nothing is sure in life except death and taxes". Whether you like it or not, someday you will die. How you die and how it effects the people you leave behind can be affected by whether or not you have a living will.

Say you feel that if you develop an inevitably fatal illness, you do not want any extreme measures taken to prolong your suffering or to cause you additional suffering or loss of dignity while you are dying. Say you have a massive stroke and end up in a coma and according to the doctors you are brain dead or completely unresponsive. You are being kept alive by a bunch of machines and tubes. Now say you had previously told someone, your spouse, one of your children or a parent, that you did not want to be kept alive by extreme measures. That person tells the doctor that you would not want to be kept alive by a machine, however, another family member, who can not take the thought of your dying, tells the doctor that you wanted to be kept alive by any means possible. Now, there is a problem. Remember the seven (7) year court battle over Terri Schiavo.

Both family members love you and both want to do what is best, however they disagree and end up causing great emotional distress to each other and to other people who love you, as well as forcing you to be kept ailve against your wishes while the matter is being settled, and as well as running up considerable medical and legal expenses that have to be paid by someone. None of this would have taken place had you taked the time to have a living will prepared.

Conversely, say that you would like to receive all medical treatment that is available, no matter what. Since you can not speak for yourself, your spouse or a loved one, not knowing your wishes and who believes in dying with dignity, tells the doctor to turn off the machines and let you die. No one else knows what you wanted so the machines are turned off and you die. Had you taken the time to have a living will prepared they would have tried to keep you alive.

The foregoing examples are very black and white and most incidences will vary in various shades of grey, however I hope that you will understand the point that I am trying to get across.

Note: I am not an attorney or a doctor and none of the foregoing should be construed as legal or medical advice. This article is written strictly as my opinion based on life experiences through both my personal life and my work as a private investigator when investigating family disputes. As in all matters of law you should always consult an attorney before taking on any legal endeavor.

Whether you are married, single, young, old, healthy or ill, a living will is an inexpensive way of insuring that your wishes are carried out in the event that something untoward happens. It could also spare your loved ones the emotional distress of being forced to make such an important decision for you.

Xbox Murder

(category: Legal, Word count: 149)
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It happened on August 6, 2004. A gruesome murder. At approximately 1am, six individuals were stabbed and then beaten to their deaths. The murdered victims were Michelle Ann Nathan, 19; Erin Belanger, 22; Francisco Ayo-Roman, 30; Anthony Vega, 34; Roberto Gonzalez, 28 and Jonathan Gleason, 17. Most of the victims were asleep when the attack occurred. According to reports, the victims did not fight back.

What in the world could have caused the heartless criminals to violently kill the aforementioned and two small dogs? The shocking answer is a Xbox game. The murderers were squatting at one of the victim's grandparent's vacant home. When the Xbox game and some clothing were removed from the home, where they were staying illegally, the boys became enraged.

A clerk at Wal-Mart told investigators that the band of criminals was joking and laughing about killing people. The crew bought baseball bats

How To Choose An Adoption Attorney

(category: Legal, Word count: 855)
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No matter where you are in the adoption process, whether you have just started your Home Study or have already connected with a Birthparent, choosing an attorney to help you through the process is one of the most important choices you will have to make. I have worked in adoptions for over nine years and I want to stress to you that choosing an attorney that specializes in adoptions or has significant adoption experience is highly important. Although as an agency we do a lot of the legal work ourselves with our own attorney, we also conduct Home Studies for couples who are doing independent adoptions, meaning they are going through an attorney rather than an agency. Most of the mix-ups and botched adoptions we see are typically associated with attorneys that do not practice adoption law or who know very little about adoption law.

When choosing an attorney to use in an independent adoption, I always recommend choosing one that is a member of the American Academy of Adoption Attorneys (also known as AAAA or Quad A Attorneys). Adoption law is typically state specific except for a few federal laws, so you want an adoption attorney that is well versed in the adoption laws of your state. Things get even more complicated if Birthparents live in one state and the adoptive family lives in another. This is called an interstate adoption. Not only are you dealing with the laws in each state, but you are also dealing with the Interstate Compact on the Placement of Children, a Federal law that regulates children being placed for adoption in a different state than where they were born. The adoption disruptions that we see played out in the media typically happen because something was not done legally the way it was supposed to be done. For this reason it is imperative that you use an attorney that knows the adoption laws for your state.

I teach monthly adoption seminars, which include a section on adoption law. During this session I always share the example of how both the lawyer and judge in a rural county in my state did not do things correctly, which ended in an adoption disruption. In this case the adoption was finalized in Juvenile Court, which cannot happen in my state as adoptions are finalized in Chancery or Fourth Circuit Court. But, even worse, the Birthmother never signed a Surrender to surrender her parental rights. You cannot finalize an adoption if one or both of the Birthparents still have parental rights to the child. Since her parental rights were still in place, when she went to the court five years later the adoption was overturned and her daughter was returned to her.

The purpose of sharing this story is not to scare prospective adoptive parents. I share it to educate them and to reinforce the importance of using an attorney who just practices adoption law or one who has done adoptions in their practice for at least five years. By doing adoptions for five years I don't mean two or three adoptions over the past five years. I mean someone who does them on a regular basis. Even if you know a lawyer who is a good friend or one who is doing the adoption just to help you, if they do not know adoption law they could end up hurting the adoption in the end.

Even if there is not a AAAA Attorney in your area, you should contact the AAAA Attorney that practices closest to you. They might travel to you or they could recommend someone in your area that knows adoption law. For instance, the AAAA Attorney that my agency uses along with most other agencies and adoptive families in the area has a list of attorneys that she contacts for adoptions in counties that are about two hours or more from her. If she is not busy, she will travel, but because she has such a good reputation she usually stays busy and she often refers families who live further away to other attorneys. She also will tell you which attorney to not use if she knows an attorney who has repeatedly done adoptions not according to the law, which is important information for adoptive families to have.

If you are beginning to search for an attorney to help with your adoption, the first thing you should do is to see if there is a AAAA Attorney in your area. You should always check their credentials and talk to families who have used them. It is also good to talk with other adoptive parents to see which attorneys they used and to find out if they had positive or negative experiences. The way an attorney handles or mishandles an adoption can literally make or break it. This is not a chance that you want to take when it comes to your family. You need to choose an attorney that will follow adoption law correctly and one that will make sure that the needs of everyone involved in the adoption process are met.

Whiplash Compensation Claims Advice

(category: Legal, Word count: 74)
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Whiplash Compensation Claims Advice

Whiplash Injury

is a sudden moderate to severe strain affecting the bones, discs, muscles, nerves, or tendons of the neck, which is composed of seven small bones known as the cervical spine.

Symptoms

may appear straight away or develop gradually over hours, days, or weeks after the injury.

Symptoms of whiplash may include

Lemon Law Lawyer Could Be Useful

(category: Legal, Word count: 427)
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Since the first lemon law was passed in 1982, all fifty states have enacted some form of consumer protection for owners of defective automobiles. The laws vary greatly from state to state, but the premise is the same - people who buy new, defective vehicles are entitled to receive a replacement or a refund. This works well on paper, but in practice, the process can be rather time consuming and complicated. Some states have rather straightforward requirements for which vehicles qualify; others are far more complicated. Some states allow the owner to sue the manufacturer directly; others require that the owner submit to manufacturer or state sponsored arbitration procedures first.

Since lemon law claims are complicated and are not the sort of thing that most consumers handle more than once, there is some advantage to hiring an attorney to help. In many cases, hiring a lawyer isn't necessary, as the system was designed to let the consumer handle the case without legal assistance. But there are many unexpected circumstances that can turn up in these cases, and most people could benefit from the help of an experienced attorney.

Here are some examples of how an attorney can help:

Speed up the process - Manufacturers are notorious for finding excuses not to pay on a claim. They may be more likely to be cooperative if the consumer has hired legal representation, especially if you have hired one with a proven record of success in lemon law cases.

Arbitration help - Arbitration programs tend to favor the manufacturer. They fund the programs, and many arbitrators are on their payroll, given them ample reason to rule against the consumer. While most states do not regard arbitration decisions as binding, many consumers who handle the cases themselves give up after losing an arbitration decision. The presence of an attorney can help.

Advice in a poor case - Some states require the consumer to pay the manufacturer's legal costs in the event that the consumer should lose his or her case. These costs can run into the tens of thousands of dollars. If your case is a weak one, an experienced lawyer could save you this money by letting you know ahead of time that you shouldn't pursue it in court.

In most states, consumers who win their cases are entitled to compensation for attorney's fees. That being the case, there is a strong argument for at least discussing your defective automobile with a lawyer before you seek a refund or replacement for your defective vehicle.

Whose Body Is It Anyway

(category: Legal, Word count: 767)
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Would you like to turn over control of your health and viability - possibly your very longevity - to an understaffed, underfunded government bureaucracy?

Doesn't appeal to you, does it?

The FDA (U.S. Food & Drug Administration), which if you think about it for a little while, has extraordinary power over your personal well-being - may gain even more dominance over your destiny. The battle for world domination of your body will occur this fall in the august chambers of the U.S. Supreme Court.

The foundation of the legal fight is the Vermont Supreme Court decision in Levine v. Wyeth.

Diana Levine, a professional musician, was treated, in April 2000, for a severe migraine headache and nausea. Staff at the Vermont Health Center injected her with Phenergan, a nausea medication. They used her arm to administer the injection and the outcome was very disastrous: she lost her right arm below the elbow, and left the hospital an amputee.

Levine sued Wyeth, which sells Phenergan, on the basis that the warning label on Phenergan - although it complied with FDA requirements - was inadequate. Levine won a jury trial and was awarded about $6.8 million.

Wyeth appealed the decision because it wants to hide behind the FDA. The case went to the Vermont Supreme Court which ruled against Wyeth, saying, in essence, the drug manufacturer had a duty under state law to strengthen the warning label on the drug, regardless of the FDA's confusing, and sometime conflicting, regulations on when, or if, warning labels should be revised.

The Politics of Pre-Emption

At the heart of the upcoming U.S. Supreme Court battle is the concept of pre-emption: that federal law pre-empts the right of victims such as Diana Levine to sue for the damages inflicted upon them in state courts.

The [supposed] logic is this: if the FDA has approved the drug, or medical device, and the label, then drug manufacturers need only to comply with the FDA's requirements to be granted sweeping immunity against personal injury law suits filed in state court for damages based for failure to warn. Or as the New York Times stated the drug companies are looking for "a legal shield" against being held accountable.

Why is it that major corporations, and many of their Republican supporters, are always talking about accountability and responsibility, until it comes to them?

The whole thing is scary.

Here is an agency - the FDA - which is understaffed and not keeping up with technology - faced with the possibility of assuming even more control over our very being. USA Today published a story - citing an independent panel review of the FDA - which revealed that the agency has about the same size staff as 15 years ago. According to the article, Instead of being proactive, the agency (FDA) is often in "fire-fighting" mode.

If the U.S. Supreme Court rules in favor of Wyeth, upholding the pre-emption rule, it takes away one of the major legal remedies the average U.S. citizen has when events such as Diana Levine's nightmare occurs.

And yes, politics, notably the Bush administration, is solidly evident. The Bush Administration has moved stealthily to prevent state common law claims.

In January 2006, the FDA adopted new regulations, the ultimate purpose was to torpedo efforts to allow personal injury claims to be heard by state court juries.

The FDA said "it is the expert federal public agency charged by Congress with insuring that drugs are safe and effective and that their labeling adequately informs users of the risks and benefits of the product and is truthful and not misleading." Translation: "if we say it won't kill you, it won't kill you."

And since when is the FDA in the job of insuring anything? These are the same folks who can even inspect imported food to make sure it is safe.

Take all the extremely technical legal argument out of this and there is still the factor of human error, of an understaffed agency monitoring an exponentially growing number of pharmaceutical products, and the potential for this agency to slam the door in a citizen's face should a medical catastrophe occur.

In May, the Congressional Committee on Oversight and Government Reform held hearings on the pre-emption issue. Chairman, Rep. Henry Waxman, said in his statement, that if the pharmaceutical managers, the FDA and the Bush Administration have their way in court, "...one of the most powerful incentives for safety, the threat of liability, would vanish."

Whose body is it anyway? Yours, or the FDA's?

The Right To Life Liberty And The Pursuit Of Happiness

(category: Legal, Word count: 565)
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The Bill of Rights exist in many different countries today to protect the people who are within the territorial boundary of the countries' government from unlawful actions that may deprive a person's right to live, security, and other necessities needed to survive. Originating from the British's Bill of Rights, which was literally a bill that was proposed and passed by Parliament in 1689 to protect the basic rights of the people. To effectively have the Bill of Rights into play it must be constantly be enforced by the government that it is trying to restrict.

The concept of the Bill of Rights is very popular with the population of countries that hold such a law in their constitution. Such one country is the United States of America in which the United States Bill of Rights protects the residents of the country from its own government from Federal to the local. The United States Bill of Rights was originally a series of amendments brought before the Congress in which ten of the amendments were put into effect in 1791.

The First Amendment which states the freedom of religion, speech, press, peaceful assembly and the right to petition the government is the most popular amendment that is in effect today. Though it may have some restrictions like as long as it does not create an imminent threat to the subject and those within the proximity or unless under warfare, the first amendment is in effect. An example is like shouting the word "fire" as a joke in a crowded area as it can create a widespread panic causing casualties or maybe during wartime some things just should be said or written.

The Second Amendment is in which gives the resident of the United States of America the right to bear arms. An amendment which is criticized today by those who promote gun safety as those who just promote the right to own a firearm have been known to legally abuse this law. As the law was originally in state for the protection of a resident and his or her family from outside forces that would cause harm to them or for hunting, groups such as the NRA use the amendment to be able to own automatic weapons which are mainly used for warfare and not for such measures as it was originally put into use for.

The Third Amendment protects the residents of United States of being forced to quarter troops in their own property in peacetime or even in wartime unless done in a process which is acceptable under the given circumstances.

The Fourth Amendment protects the resident from unlawful search and seizures in which they cannot be searched without just cause and or without a warrant, and if there is a warrant, the warrant only allows the items stated within the warrant to be seized within the location the warrant gives permission to search and nothing else unless the item in question is in plain sight and unlawful in other words illegal under the current law.

The Fifth Amendment gives the resident due process in which it prevents self-incrimination, double jeopardy, and eminent domain by the government. Where a person cannot convict themselves, be tried for more than once for the same crime, and have the government unlawfully take away property owned by an individual.

California Businesses Incorporating In Nevada

(category: Legal, Word count: 461)
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California is a notoriously bad state to do business in. Regulations, worker's compensation and tax issues overwhelm companies. Seeking relief, many incorporate in Nevada. Unless done carefully, this decision can lead to disaster.

Doing Business - Jurisdiction

Jurisdiction is a legal term used to define who has authority over something. Applied to this article, the term refers to the issue of which state has the right to regulate a business. In California, the issue boils down to whether you are considered to be "doing business" in the state.

California is the one of the most aggressive states when it comes to defining jurisdiction. If you maintain offices or have employees in the state, you are considered to be doing business here. You must register with the state and pay taxes even if incorporated in another state. This tends to makes incorporating in Nevada an expensive option since you have to pay fees twice.

If you are caught "doing business" in California without having registered, you can be in for a rough time. Initially, back taxes and fees come due. You are also going to be fined and probably suspended from doing business until an audit can occur. The California Employment Development Department may levy back taxes and penalties. Your bank accounts may be frozen. Let's look at an example.

The California Franchise Tax Board tends to look at the facts surrounding a particular situation. Assume I own a Nevada entity for the purpose of building web sites. I receive e-mail, snail mail and work out of my house in San Diego. The tax agency is going to take the position that I am doing business in California. My office is here. I take calls here. I do the work here. This scenario is going to be very difficult to defend. Playing out the scenario, I will probably end up going out of business due to disruptions, stress and the resulting financial burden.

So, can you use Nevada business entities if you are in California? Absolutely. Typically, you need to use a double incorporation strategy. Essentially, one entity is in Nevada and another in California. One entity provides services to the other through a fair value contract, to wit, you can't charge $1 an hour for services rendered. The Nevada entity has to have a business license, office, customary payables such as rent and the typical items you find with any business. This strategy is typically used to hold non-tangible business assets such as intellectual property or patent rights.

California has a brutal business climate. The Governator has promised relief, but an actor making promises is, well, an actor making promises. Using Nevada entities can provide relief to your business as long as they are used correctly.

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