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Forget Hamlet. “To Click or Sign, THAT is the Question!”

In daily life today, most of us put our electronic “John Hancock” on the screen every day, whether at the grocery store, drug store or other businesses.  We’re used to it as a perfectly valid way to seal- the-deal for routine retail transactions.

But what about other forms of documents, such as business contracts or wills and trust? Are electronic (no ink, no paper) signatures valid?

The answer is MAYBE.

For more than ten years, the US has been a signator to The Electronic Signatures in Global and National Commerce Act (ESIGNA) which makes e-signatures just as valid as the ‘wet signatures’ on paper. “E-signatures” come in many forms, such as:  (1) typing a signature into a space as directed on a form; (2) copying and pasting a scanned versions of the signer’s name; (3) using one of the cryptographic technologies available that scrambles information of the sender and allows the receiver to unscramble; or (4) clicking that ubiquitous, “I ACCEPT” button before software is enabled.

So, the ESIGNA allows business to proceed efficiently with the foregoing methods of “e-signatures.”

But some documents still MUST be signed the old-fashioned way in order to be valid.  What is “old fashioned?”  Using a pen and signing your name on piece of paper. These types of documents include:

  • WILLS, CODICILS AND TRUSTS
  • DOCUMENTS RELATING TO ADOPTION AND DIVORCE
  • COURT ORDERS, NOTICES AND OTHER DOCUMENTS LIKE PLEADINGS AND MOTIONS
  • NOTICES/DOCUMENTS RELATING TO
    • DEFAULT, FORECLOSURE, EVICTION, REPOSESSION
    • CANCELLATION OF HEALTH OR LIFE INSURANCE BENEFITS
    • HEALTH & SAFETY PRODUCT RECALLS
    • TRANSPORTATION OF HAZARDOUS MATERIALS

You’ll notice that the above list has a common thread – all the types of documents mentioned pertain to personal, health and safety issues.  And even if you do have that original document, whether you need to provide a copy of that original “wet signature” document for a transaction here or abroad  (from  filing a deed with the county record or  applying for a foreign tax subsidy) will depend on a number of factors, including the intent of the parties.

In today’s marketplace for routine business transactions between private parties, contracts often have a clause that provides: A facsimile copy and signature or electronic signature shall be deemed an original for all purposes herein.

People routinely sign contracts, scan them into their computer and send those scanned signature pages around the globe for counter- signature with the parties honoring the scanned documents as originals.  Keep in mind, however, that you should consult with your lawyer to make sure that your particular document has been properly executed and maybe even notarized or given an “Apostile” status as required for some purposes internationally.

ExxonMobil Sues FXX Claiming Trademark Infringement

exxon_mobil_logo_fxx_logo

The television industry was abuzz last week when ExxonMobil, one of the most successful oil companies in the world, filed a lawsuit against another world-class conglomerate, Twentieth Century Fox Television.  Why would a U.S. television network be the target of a lawsuit from a company that brings us gasoline at the local pump?

The answer lies in two crossed letters where "XXes”  mark the spot!

Take a look at the two logos below.  Exxon has been using its double-x symbol for decades (even before its association with Mobil). Fox just started the edgy FXX network (an offshoot of the FX Network) in the last year and ExxonMobil claims that "FXX," is infringing on its  US registered trademark by causing confusion in the marketplace.

The first question you might ask is, "What is a 'trademark'?

A "trademark" is a word or symbol that identifies the source of goods or services. Think of it this way:  when you see the iconic “Coca-Cola” symbol, you know that the drink inside the can comes from the Coca-Cola Company and the liquid inside is the drink we have all come to associate with that mark.  “Coca-Cola” is a U.S. Registered Trademark of the Coca-Cola company.

The United States is not the only country that affords trademarks protection under its laws. Trademarks are protected by laws throughout the world when they are legally registered and/or established by continuous use in the marketplace. The highest form of trademark protection in the U.S. is obtained through a registration process with the US Patent and Trademark Office (USPTO).  The 'Exxon' trademark has been registered with the USPTO  and in use since 1971.

So do you think that the FXX Network’s mark causes confusion in the marketplace with ExxonMobil?

Take closer look --

What is your reaction?

A spokesperson for the network told Bloomberg News that they are confident that "viewers won't tune into FXX looking for gas or motor oil and drivers won't pull up to an Exxon pump station expecting to get It's Always Sunny in Philadelphia."

Quips aside, we won't know the answer to this question right now, but the dispute between two titans points out some things that every business person should know.

First of all, branding your product or service is serious business. The task requires knowledge of the law and careful planning.  It can be difficult to create a new name that hasn't already been taken or that won’t infringe upon an existing mark.

For example, all of us do-it-yourself Californians know that the 'Home Depot' brand is identified by its name and color (bright orange). If someone started a business called ‘Home Center’ and branded it with the same type and color as Home Depot, would that be infringement? Would you be confused as to the ownership of the business?

In simple terms, if a mark is confusingly similar and a reasonable consumer would think there is a commonality of ownership, that's not permissible under the law.

So what should we conclude as the titans of industry battle it out in the courtroom (or settle in the boardroom)?   It is very important to research any proposed mark before it is put into use with a business to avoid the headaches (and legal costs) that will follow if you unknowingly create confusion in the marketplace.  Or as the age-old adage goes, “An ounce of prevention is worth a pound of cure!”

Read Full Complaint Here

TV Series 'Veronica Mars' Finds Crowd Funding

Crowd funding is hot! It has taken form in recent years, allowing anyone with a project, cause, or company to secure donations online in exchange for various gifts, or simply just for the sake of donating. Typically, sites like Kickerstarter, Indiegogo and Rockethub serve as conduits for the campaigns and their gift givers.

One recent example is Veronica Mars, the defunct TV series now poised to be a motion picture thanks to its wildly successful crowd funding campaign. Veronica Mars' Rob Thomas spearheaded the capital raising campaign via Kickstarter, attracting 91,585 backers donating over $5.7 million dollars! Not bad for what typically turns out to be a thirty day time frame. While not all campaigns are successful, the amount of money raised by this budding industry has caught the attention of Congress.

In April of 2012, the President signed the JOBS ACT and TITLE III of that Act permits equity crowdfunding: selling shares or units in your company in exchange for cash. Until the SEC issues rules as required by TITLE III of the Act, it's still illegal to offer equity in exchange for investments online; however, once that happens, we will see a whole new industry blossom. Entrepreneurs and other business people will be able to use third party intermediaries to conduct campaigns to raise capital online. There are parameters upon how it all works-the devil is in the details, but it's expected that sometime this year those rules should be in place to make this a reality.

Perhaps Veronica Mars could have set up a campaign for equity crowd funding, seeking investment in its production company. The cap per twelve month period for the production company would be $1 million; and the investors would have a stake in the company, but perhaps if you have a well known brand like Veronica Mars, you might want to stick to the donative model that they used (they raised more money). If you are the "next" Veronica Mars and don't yet have brand recognition or a proven fan/customer base, perhaps you might want to use the equity model (once legalized) so as to incentivize investors that even though you can only raise $1 million per year, investors may possibly make more on a return (the donative concept doesn't allow any return-it's just a gift).

Time will tell how this space evolves, but one thing is for sure, it will be a show worth watching!