Common Myths About Civil Law

Chances are the everyday average Joe doesn’t know too much about law and legal matters, beyond the most basic and obvious matters. It’s exactly for that reason that lawyers are able to make such a booming trade. When people find themselves faced with legal conundrums, they need someone who knows the laws involved and the legal system inside and out to help get them out again. So unsurprisingly, there are a lot of myths and misconceptions about civil law floating about the populace. Some are, admittedly, rotted in some measure of truth. Others are just outright fabrications.
Should you ever find yourself in a situation that requires a working knowledge of civil law, it’s important to know fact from fiction. Making yourself aware of the most common myths about civil law is the first towards gaining a basic working knowledge to help in any future cases.

#1 The McDonalds Coffee Case
You may have heard this floated around from time to time. If so, it usually goes like this: a woman having a meal at McDonalds orders a cup of coffee, and ends up burning herself on it because it’s “too hot”. She ended up getting $8 million from McDonalds, and that’s why we have to remind people coffee might be hot. This is usually followed by a jab at how easy it is to get money from lawsuits, or how stupid some people are to not realize coffee might be hot.
Don’t believe everything you hear around the water cooler.
What’s often not mentioned about this case is that the woman didn’t just singe her tongue on her coffee. She spilt it on her lap and the coffee caused third-degree burns on her thigh. For those who’ve forgotten, that means it was hot enough to burn through all the layers of her skin. That sort of thing requires emergency medical attention. So ask yourself: just how hot was that coffee to be able to do that?
Another thing often mentioned was that McDonalds didn’t just pay upfront the $8 million awarded. The woman initially just wanted her medical bills covered. However, during the course of the proceedings, it was found that McDonalds knew their coffee was being kept at temperatures high enough to cause third-degree burns, yet persisted the practice anyway. Thus, the amount was so inflated because the damages were so grievous, and because McDonalds showed such disregard for the health and safety of their customers.
What this all underlines is this: lawsuits do not usually pay out such high amounts of cash. In most personal injury claims, your winnings may actually be very small. Payments in the region of tens of thousands of dollars and larger are actually quite rare. The McDonalds Hot Coffee Case was the exception by nature of being very exceptional, it is not the rule.

#2 You Must Suffer Physical Damage to have a Case
When people talk of suffering “injury” or “damage”, they have a tendency to take those terms rather literally. Before you can go to court, you need to actually have a physical injury to show for it. So, for example, say you’re at work and you’re being bullied or harassed by a colleague, or even a superior. You’ve reported it to Human Resources, but they’re not doing anything about it. Over time, the harassment causes you emotional stress and prevents you from working. However, you don’t actually suffer anything truly physical from it.
Some would say this means you cannot take anyone to court. After all, how can you quantify feelings? A broken leg can easily be assessed by how much it costs to have it seen to at the hospital. But what does emotional pain cost?
Actually, that’s one of the things that would be settled in a lawsuit. An injury does not have to be physical, it just needs to have damaged the person somehow. And emotional anguish is damage. What it does mean, though, it that lawyers may be more reluctant to take up your case, as it can be hard to exactly assess how much those damages cost. Unless the potential claim is big enough to entice them, it may be hard to find representation.

#3 You Must Always Present Original Copies Paperwork
Actually, this is a bad idea. If you submit an original document when filing a plea, say a birth certificate or an important receipt, there’s actually a chance it could go missing during the process. And then where does that leave you?
This myth roots itself in the idea that, in order to proceed in a civil court, you must have original copies to verify their authenticity. After all, copies could easily be fake or stolen. It’s mistaken, however – most courts are happy to accept photocopies when filing a plea. You will, however, be asked to present originals during the actual hearing. If you can’t provide them, then it doesn’t mean your case won’t go through. It just means your copies have to be verified by a gazetted officer. To help the process, make sure all your copies are clear with identifying marks (such as seals, signatures and barcodes) clearly visible.

#4 It’s Fine to Copy Work if it’s Non-Profit
This only really applies under certain circumstances. Well there are works out there that can be freely copied and distributed – such as documents and works that exist the public domain – in most other cases permission must still be sought from the owners of the work in question before you use the work. Even if you don’t plan to make any money off of the work in question, the fact remains you’re denying the original owner the chance to make money themselves off of it. That counts as copyright infringement and allows the owner to sue for financial losses.
So to use an example. Copying and reproducing copies of Geoffrey Chaucer’s The Canterbury Tales is perfectly fine because that work exists in the public domain. It’s owned collectively by the public, and can be used, distributed and adapted freely. However, Tolkien’s The Lord of the Rings is a product still owned by Tolkien’s estate and is still held under copyright. Thus using anything from the works – even the word “hobbit” – is a breach of that copyright, even if the use is non-commercial.

#5 You Are Responsible for Your Spouse’s Debts
Again, this myth is only true under a specific circumstance – you’ve entered the debt jointly, have secured the debt against a joint property, or you are a guarantor of those debts. In those instances, you share responsibility for them. However, if the debts exist in solely the other person’s name, then they are solely responsible for it. You are not legally required to pay for any of it.
The law can be confusing as there are so many different scenarios where this can happen or this can’t happen. It can be overwhelming, especially if you are considering filing, or are in the midst of a trial. It is definitely up to you to do your research, but there are things that you won’t and can’t understand without a lawyer. So if you find yourself confused and, reach out to a lawyer, as most of the time they offer a first time free consultation, like David Heil at Heil Law in Orlando Florida.

About the author
Christian Mills, the writer of this article is a professional student and freelance writer who contributes articles for people to have a better understanding of the law and their rights.

5 Ridiculous Trademark Attempts

A lot of people are under the impression that you can trademark anything as long as no one else beats you to it. In reality, this simply isn’t the case 99.9 percent of the time.

There are several rules regarding what you can and can’t trademark, but the primary consideration is that what you are trademarking has to be original or exclusively associated with you or your brand.

Although there have been a few exceptions over the years where the UPSTO approved something that wasn’t completely original, it’s a very rare occurrence. However, that fact doesn’t stop some people and companies from trying to trademark things that obviously don’t qualify.

It’s hard to tell sometimes if these are just publicity stunts or if these people actually think they have a case for their trademark. Either way, some of them are really funny. In this article we’ve found five of the most ridiculous trademark attempts for you to get a laugh at.

1. Walmart Attempts to Trademark Yellow Smiley Face

In 2006, the international retailer Walmart filed an application to trademark the yellow smiley face that use on signs in their stores and in their advertising. Although the yellow smiley face is a key part of their branding, Walmart was not the first company to use the famous icon.

The first-known yellow smiley face was created by a freelance artist named Harvey Ball in 1963, which he sold to the State Mutual Life Insurance Company. The image later reached the masses when two brothers trademarked the combination of the image and the tagline “Have a nice day” and made millions off of merchandise featuring the combination.

2. Harley Davidson Attempts to Trademark the Sound of a Revving Engine

Inspired by NBC (which trademarked their three-tone jingle) and MGM (who trademarked the lion’s roar), Harley Davidson wanted to trademark their own signature sound and filed for an application to trademark the sound of a revving engine. Although their vehicles aren’t the first or only vehicles to feature that sound, one could argue that a loud revving engine is something that most people could associate with Harley Davidson.

However, the application was dropped in the year 2000 after several other manufacturers complained that their engines made the exact same sounds. It might have been a clever idea, but it’s definitely one of the more ridiculous trademark attempts of any auto manufacturer.

3. Jason Gamber Attempts to Trademark the Term “SEO”

The term SEO is an acronym for search engine optimization, which is a marketing strategy to boost the rankings of a website in search engines such as Google. The term is used widely among internet marketers, marketing professionals, and people who manage websites for personal or business use.

The idea of trademarking SEO is almost as ridiculous as trying to trademark the work marketing. Gambert filed several applications beginning in 2007, which never received a final decision until 2010 when a blogger alerted the public of his attempts. Several people filed notices of opposition and the UPSTO denied his requests in March of 2010.

4. Donald Trump Attempts to Trademark the Phrase “You’re Fired”

No surprise here, as The Donald is known for his attention-grabbing antics. Following the success of his reality show The Apprentice, Trump attempted to trademark his signature phrase from the show -- “you’re fired” -- in an attempt to make more money off the show’s success.

Despite the fact that this phrase is so commonly used in the public domain, that’s not the exact reason that Trump was denied. Apparently, officials felt that “you’re fired” sounded too similar to “You’re Hired,” which is an educational board game.

5. The New England Patriots Attempt to Trademark “19-0”

After going undefeated throughout the entire 2008 season and the playoffs, the New England Patriots’ owner rushed to apply for a trademark on the phrase “19-0” just weeks before the Super Bowl. They ended up losing the Super Bowl to the New York Giants, losing their perfect record. In addition, they were denied their trademark.

The New York Post refused to let them off the hook for this ridiculous trademark patent and filed an application for the phrase “18-1” following the Giants victory in the Super Bowl.

Bonus: Boise State University Successfully Trademarks Their Blue Turf

Just to give you an idea of the ridiculous trademarks that do get approved, here is a great example. For years Boise State University has been known for their signature blue turf, also referred to as the Smurf Turf.

In 2009 they finally claimed their signature turf officially, which prevents other universities from using blue turf in their football stadiums. (Not that they want to.) In an interesting turn of events, several universities responded by changing the colors of their fields. A notable example is Eastern Washington that installed bright red turf.

Kyle Stout is a freelance writer based out of Houston, TX. This article was prepared on behalf of Vethan Law Firm P.C.

Rules on Service of Summons

Rules on service of summons is largely dependent upon the nature of action: whether it is in personan, in rem, or quasi in rem. In SPOUSES DOMINGO M. BELEN, ET. AL., vs. HON. PABLO R. CHAVEZ, et al. G.R. No. 175334, March 26, 2008, the Supreme Court cited a case, to wit:

In Asiavest Limited v. Court of Appeals,[7] the Court underscored the necessity of determining first whether the action is in personam, in rem or quasi in rem because the rules on service of summons under Rule 14 of the Rules of Court of the Philippines apply according to the nature of the action.The Court elaborated, thus:

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. Jurisdiction over the person of a resident defendant who does not voluntarily appear in court can be acquired by personal service of summons as provided under Section 7, Rule 14 of the Rules of Court. If he cannot be personally served with summons within a reasonable time, substituted service may be made in accordance with Section 8 of said Rule. If he is temporarily out of the country, any of the following modes of service may be resorted to: (1) substituted service set forth in Section 8; (2) personal service outside the country, with leave of court; (3) service by publication, also with leave of court; or (4) any other manner the court may deem sufficient.

However, in an action in personam wherein the defendant is a non-resident who does not voluntarily submit himself to the authority of the court, personal service of summons within the state is essential to the acquisition of jurisdiction over her person. This method of service is possible if such defendant is physically present in the country. If he is not found therein, the court cannot acquire jurisdiction over his person and therefore cannot validly try and decide the case against him. An exception was laid down in Gemperle v. Schenker wherein a non-resident was served with summons through his wife, who was a resident of the Philippines and who was his representative and attorney-in-fact in a prior civil case filed by him; moreover, the second case was a mere offshoot of the first case.

On the other hand, in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. Nonetheless, summons must be served upon the defendant not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements. Thus, where the defendant is a non-resident who is not found in the Philippines and (1) the action affects the personal status of the plaintiff; (2) the action relates to, or the subject matter of which is property in the Philippines in which the defendant has or claims a lien or interest; (3) the action seeks the exclusion of the defendant from any interest in the property located in the Philippines; or (4) the property of the defendant has been attached in the Philippines service of summons may be effected by (a) personal service out of the country, with leave of court; (b) publication, also with leave of court; or (c) any other manner the court may deem sufficient.

Republic Act 7875 Implementing Rules and Regulations

The law requires that all business establishments must enrol their employees with Philhealth. To know more about this law, you can read the Implementing Rules and Regulations of Republic Act No. 7875 from the Philhealth website.

Philhealth Vision: Bawat Pilipino dapat miyembro. Bawat miyembro ay protektado. Kalusugan natin sigurado.

Just What Are You Allowed or Not Allowed To Trademark?

Using trademarks to protect the intellectual property of your business is a smart move. However, before you start trying to prevent all of your competitors from using any word or image that you’ve ever looked at, it would be a good idea to find out what you can and can’t trademark. There are a number of things, or “marks”, that can be protected by trademark.

Before we go any further I should mention that this is not legal advice and you should always speak with an attorney before filing for trademarks or patents. Filing a trademark isn’t as straightforward as say for example, forming an LLC, and a trademark attorney can save you from wasted time and money.

What Can Be Trademarked?

A trademark’s purpose is to protect things that identify a business in the marketplace such as a word, phrase, symbol or design that “identifies and distinguishes the goods or services of one person or company from those of others.” Your logo, brand name, tagline, or any other similar branding elements are protected.

What Are the Easiest Marks to Trademark?

You must file an application to have your mark registered and there is no guarantee that it will be accepted, even if it appears to meet the basic criteria. Some marks are more likely to be accepted than others. Below are the marks that are most likely to be successfully trademarked.

Fanciful Marks

Marks that you’ve created originally or coined for the sole purpose of identifying your business or brand are referred to as fanciful marks. Well-known examples include Exxon, Kodak, Febreze, and Xerox. Fanciful marks are generally the easiest to protect. The only downside is that they can require a larger investment to increase awareness and establish a connection between the unique name and the brand promise it represents.

Arbitrary Marks

In the case of an arbitrary name, a common word is used for a brand or product that is unrelated. Arbitrary names are excellent for trademarks and are usually easy to protect. Some examples you are likely familiar with include Apple for a computer company, Coach for purses, Puma for athletic apparel, Lotus for software, and Jockey for underwear.

Suggestive Marks

Suggestive marks are generally unique and suggest a mental association between the name and the features or benefits of the product or service that the name represents. Suggestive marks are much more common than fanciful or arbitrary marks, despite not being quite as strong. The reason is that suggestive marks usually grant a marketing advantage of tying a mark to the product in a customer’s mind. Suggestive marks are often confused with descriptive marks, but the key difference is that suggestive marks require a bit of thought and creativity to link the name with the product or service, while descriptive marks do not require any imagination. As you can probably guess, this is a highly disputed area of trademark law.

Notable examples of suggestive marks include Microsoft for computer software, Sharpie for markers, Zappos for an online store, or Flickr for a photo sharing website.

What Can’t Be Trademarked?

While trademarks do cover a wide range of things, they still have their limitations. You can’t trademark generic names. A car manufacturer could not trademark the word “car” or “trunk” because those two words are very common in their industry. You (obviously) can’t trademark anything that’s already been registered by someone else. You also can’t trademark anything that might cause confusion between you and another business.

What Are the Hardest Marks to Trademark?

While there is a slight chance that you will be able to trademark one of the following marks, if you can prove that it is unique enough, the odds are not in your favor. Below are the most difficult marks to trademark from most likely to least likely.

Descriptive Marks

Choosing a company name that describes a certain feature of the product or service is considered descriptive and cannot be trademarked. An example would be “Garden Supply Store,” because it only describes what the store sells. In addition, changing the spelling of a common descriptive phrase, such as “Karpet Klean” will not likely be approved either. Small changes in spelling are not enough.

Geographically Descriptive Marks

Business names that include the geographic location of where the business operates are difficult to trademark. Examples such as “Houston Pest Control” or “Atlanta Auto Repair” would be very likely not be approved.

Surname Marks

Names that are primarily used as surnames are very difficult to trademark. Examples would be “Smith’s Lawn Care” or “Thompson’s Bakery.” The only way you would have a chance would be to invest so heavily in marketing that the names became established enough in the marketplace to have a secondary meaning in consumers’ minds as more than just a surname.

Generic Names

If your brand name could be used to describe an entire industry or category it is too generic to be trademarked. Examples would be “Speedy Car Wash” or “Dallas Loans.”

Deceptive Marks

Names that attempt to mislead or deceive consumers by inaccurately describing certain benefits or features of the product/service cannot be trademarked. For example, a company can’t use a phrase suggesting that the products are made in America if their products are manufactured in China.

5 Excuses Your Boss May Give You For Not Paying Overtime

The idea behind the movie “Horrible Bosses” was not dreamt out of thin air. Regardless of your critique of the movie, I think we are all well aware that not all bosses are great. In fact some are downright horrible. Hopefully you have not had the unfortunate pleasure of working under one, but if you have you know how miserable life can be for forty hours per week. Or more if you count overtime.

Speaking of overtime and horrible bosses, some bosses even go to great lengths to withhold hard earned overtime pay from their employees. You are legally entitled to an overtime pay rate if you work over forty hours in a workweek and are a non-exempt employee. So what do these horrible bosses commonly use as excuses for not paying overtime?

You Are Exempt
One common excuse that employers use to avoid paying employees overtime is claiming that the employee is exempt. To verify if you truly are exempt, you will want to run down the list of exemptions.

If you are a salaried employee, you are more than likely exempt. However, there is a caveat to this but more on that later. Another common exemption relates to job duties. For example, if your primary duties contain any supervisory role, you are usually exempt. The key to this is determining if your primary job duties consist of managerial or supervisory role. Simply having the job title of “Managing Supervisor” does not mean that you are exempt.

Executive, administrative, and professional job duties are also considered exempt. Professional job duties include doctors, lawyers, teachers and others.

You Are a Salaried Employee
As mentioned earlier salaried employees are typically exempt. In fact, most employers believe that any salaried employee loses their right to overtime pay. However, this is untrue. If you are not making at least $455 per week in salary, you are still entitled to overtime pay. Currently, this rate is in debate for being raised. Additionally, you must still fit into one of the other exemptions as state by the Fair Labor Standards Act.

That Was Off-the-clock Work
Another common excuse employers give to avoid paying you overtime is that the work you did was off-the-clock.

There are a number of ways in which employees can force you to do off-the-clock work. A common way is to make you work through your lunch or your break even though you’ve clocked out. They could also demand that you stay late, even if you’ve clocked out. Some employees do not even have a physical system for clocking in and out. In this case you are most likely required to keep a timesheet in which you are marked for eight hours each day, even though you worked through your lunch or stay late.

Hours Worked From Home Don’t Count
Another common example of employer excuses for not paying overtime is not paying your for the time you worked at home. Some jobs require that you respond to emails, texts, or phone calls even after you have left the office and are home.

If you are an hourly employee, you are entitled to earn your wage during that time period. So if you have spent an additional thirty minutes responding to emails before bed, make a point to track that time and add it to your daily total. Some employers think that they can get away with not paying you since you are not physically in the office.

Preventing You From Clocking In
The list of excuses continues as some bosses will actually require that you be in the office or jobsite at a certain time, but prevent you from clocking in until later. For example your boss may require you to come in at 8 a.m. but not allow you to clock in until 9 a.m. when the main business hours start. Regardless of if you are doing work in that hour or not, you are still legally entitled to that hour of pay. Your time worked starts the moment you enter the workplace.

All of these excuses can lead to employees missing out on some serious overtime pay. If you feel you have been cheated from overtime pay, you can contact your local labor commissioner or get in touch with an attorney that specializes in overtime wage disputes.