Four question about US law
scie...@ipotesi.net
I contacted 2 Italian attorneys
(see: "Cost of legal action about US trademark"
Sept 20, 2005).
Both told me that is better for me to hire a US
attorney and that in the USA there are certain
possibilities that are not allowed in Italy:
1) If the attorney is quite sure that the case
is favorable to us, he will not ask us for money,
and we can make a "percentage" agreement on the
supposed final refund that we will get at the end.
This seems strange to me (for sure, it is not
allowed in Italy)
2) Similar as above (1), but it is called
"pro bono" support.
3) By the way, it seems that US law allows sued
people to defend themselves without an attorney!
http://www.business.gov/phases/managing/handle_legal_concerns/hiring_lawyer_faq.html
(Just a fummy curiosity)
4) A complete different question.
(I understand that, if this possibility does not exist in the USA, my
question may seem weird).
Is it possible in the USA to make a "written official statement", so
that in the future I can legally demostrate that on September 23, 2005
(that is today) I have said (or written) what I have actually said (or
written)?
This is possible in Italy in 3 ways:
a) cheap way: to send a registered mail to myself, and never opening it
until I need to. Cost: Euro 4 or so.
b) standard way: to register a document in the "Ufficio del Registro"
(a local government office, recently it changed its name but a very few
people uses the new one, I can't even remember it). Cost: Euro 300 or
so.
c) expensive way: to give the document to a notary (Euro 1000+).
Thanks again,
Fabrizio
Em
payout is high, do not agree to pay a percentage, but insist on paying
hourly or fixed rate.
2) Pro Bono means "free". Not likely. Attorneys charge a lot of money.
3) The law allows it, but it is highly unadvised. If you go to court, the
judge will not give you extra time simply because you are not an attorney.
4) Even better, ... send the letter to somebody other than yourself.
Certified Mail will document the date. Registered Mail costs more but is not
necessary.
Not a lawyer. -BAM
<scie...@ipotesi.net> wrote in message
news:1127467496.9...@g44g2000cwa.googlegroups.com...
scie...@ipotesi.net
> Certified Mail will document the date. Registered Mail costs more but is not
> necessary.
Thanks for your reply.
However, I guess that this would not certify the *content* of the
letter
(that's why in Italy expensive registrations of the content are
allowed).
By the way: all our messages (on the newsgroups) are saved, recorded
and indexed by Google (and not only). So, in the future, it will be
possible to demostrate that on September 23, 2005 (that's today)
I have written what I am actually writing (provided that Google
mantains
these public records).
In Italy, something like this has no official or formal value.
Nevertheless, it will be taken into consideration by the Court
(probably)
for the final judgement, as well as anything else that may help to
make such judgement.
Is this the same in the USA?
That is:
Has Usenet a kind of... "likelihood" of a proof?
(I am not able to explain better what I mean :-)
For example I would make 2 statements, that I report below...
Thanks again
Fabrizio
P.S. Statements.
1) Our Credit Card processor is ClickBank.com.
ClickBank allows an affiliation program where anyone can become
an affiliate and sell the products of the sellers (as we are), earning
an automatic commission directly by ClickBank.
The important point is that the sellers are not allowed to contact
the affiliates, due to privacy issues. The sellers don't even know
who the affiliates are. This is the situation at September 23, 2005.
I can't know if this will be different in the future.
This is important because in July or in August 2005, a few ClickBank
affiliates (three or less, as far as we could understand) did advertise
our product on Google AdWords and *might* have written confusing
ads about our product (the Natural Stress Relief technique) and the
Transcendental Meditation technique. Such ads, through a Clickbank
automatic redirecting, called "hoplink", point to our website.
Also, Google pretends that the "display URL" on the ad, is related to
the *final* landing page (that's our site).
In any case, we can't control affiliates' acitiviry and we are not
liable
for this *possible* customer confusion. On September 2, 2005, we
asked ClickBank to stop the affiliates (that we don't know).
It seems that they stopped their ads and their activity.
This is in response to the following accusations written by the
attorney
James Nemmers agaist us on Sept 20, 2005:
"To claim that ads on the Stress Relief technique are not under your
control, or even created by you, is preposterous."
"... you are contracting with 'affiliates' to conspire to sell the
infringing services which you yourself have created."
"... You seek to pass your service off as the Transcendental Meditation
program and you do this by intentionally misleading the public by your
keyword and other advertising that, in the first instance when the
public is looking for Transcendental Meditation indicates that is what
you are selling."
"You do this through your extensive key word purchases of
Transcendental Meditation on the search engines, which resulting links
on those engines prominently state that you are selling Transcendental
Meditation for $25."
By the way, we also run our ads. But our ads state that our technique
is different from Transcendental Meditation.
At this time, our product, the Natural Stress Relief meditation,
is ranked #40 (on sale activity) on the "Mental Health" sub-category
of the "Health" category of the general ClickBank marketplace.
We have 1.9 gravity (this is a measure of the average number of
affiliates in the last 3 months or 6 weeks or so: this number used
to be 3 and it's slowly decaying). By the way, our low ranking
means that our sales are very few (averaging 20/month).
Of course, all the buyers declared that they could not afford
to spend $2500, that is the price of TM. However, this is not
important, since law allows us to sell a competing product
at the price that we decide, and competition is allowed in
the USA, as long as we state that our product is different from
the trademarked product we compare ourselves to.
ClickBank Payout Stats for our product as of Sept 23, 2005:
$earned/sale: $12.14, %earned/sale: 55.0%, %referred: 33.0%, gravity:
1.9.
2) On May 14, 2003, on a Press Conference, Maharishi Mahesh
Yogi said:
"40 thousand teachers of TM I have trained, and many of them have gone
on there own and they may not call it Maharishi's TM but they are
teaching it in some different name here and there. So there's a lot of
these, artificial things are going on, doesn't matter, as long as the
man is getting something useful to make his life better, we are
satisfied."
I don't have a recording of this conference, but one or more of the
Maharishi organizations have.
At this time, such statement by Maharishi's is reported by 2
independent web pages:
http://www.paulmason.info/themaharishi/mmych25.htm
http://www.geocities.com/bbrigante/updates.html
McGyver
> (see: "Cost of legal action about US trademark"
> Sept 20, 2005).
>
> Both told me that is better for me to hire a US
> attorney and that in the USA there are certain
> possibilities that are not allowed in Italy:
>
> 1) If the attorney is quite sure that the case
> is favorable to us, he will not ask us for money,
> and we can make a "percentage" agreement on the
> supposed final refund that we will get at the end.
> This seems strange to me (for sure, it is not
> allowed in Italy)
In a contingency fee case, the attorney gets paid out of the winning
judgment or settlement and gets nothing if the case is lost. This case of
yours is not a candidate for a contingency fee arrangement. Attorneys take
contingency fee cases when (a) the case is a clear winner and very big, so
that the payday for the attorney will be much bigger than would be earned on
an hourly fee basis and (b) cases in a field where the system is greased for
easy handling through insurance claims, such as auto accidents. A trademark
infringment case on the defense side isn't even close to being a candidate.
> 2) Similar as above (1), but it is called
> "pro bono" support.
Pro bono cases are taken for the public good or for charity. Not for the
routine defense of a client who can't afford an attorney. Even the law
clinics where lawyers volunteer their time to help the poor wouldn't take a
trademark case. You are not a charity and the public wouldn't be benefited
by an attorney defending you. Pro bono is not one of the possibilities.
> 3) By the way, it seems that US law allows sued
> people to defend themselves without an attorney!
> http://www.business.gov/phases/managing/handle_legal_concerns/hiring_lawyer_faq.html
> (Just a fummy curiosity)
I didn't look at the linked site, but it is legal for a person to defend
themselves in the U.S. But the person defending himself will lose unless
the person learns enough about the law and procedure to handle the case as
well as an attorney would. Most people who defend themselves lose, except
in small claims court, where the other side doesn't have an attorney either.
> 4) A complete different question.
> (I understand that, if this possibility does not exist in the USA, my
> question may seem weird).
> Is it possible in the USA to make a "written official statement", so
> that in the future I can legally demostrate that on September 23, 2005
> (that is today) I have said (or written) what I have actually said (or
> written)?
There are several ways to make a statement and preserve it so that you can
prove that you made the statement on a certain date. Mailing to yourself
isn't a good way. Mailing a notarized statement to an independant witness
would be better. I didn't read your post or the other one in this thread in
detail concerning what exactly you want to say in such a statement, so I can
not tell you anything about whether it would be a worthwhile thing to do.
> This is possible in Italy in 3 ways:
> a) cheap way: to send a registered mail to myself, and never opening it
> until I need to. Cost: Euro 4 or so.
> b) standard way: to register a document in the "Ufficio del Registro"
> (a local government office, recently it changed its name but a very few
> people uses the new one, I can't even remember it). Cost: Euro 300 or
> so.
> c) expensive way: to give the document to a notary (Euro 1000+).
>
> Thanks again,
> Fabrizio
Hiring an attorney is the U.S. while you are in Italy is easy. Just call
the attorney, interview each other, decide whether to hire the attorney,
send a check. Figuring out which attorney to call is hard, but that's no
different from what would happen if you were standing in New York trying to
select a New York attorney. Go on the internet, find the websites of
attorneys who work in the field you need, call. When in doubt, call a large
firm rather than a small one, if you don't know anything about either one.
The most important qualification is that they work in the field you need
help in.
McGyver
scie...@ipotesi.net
I understand that it is not good for us to hire an Italian attorney:
they don't know US law, and it seems to me that they know US
trademark law less than I do!
About preserving a statement, I realized it's not so important in
our case.
Thanks again,
Fabrizio
PTravel
>
> I contacted 2 Italian attorneys
> (see: "Cost of legal action about US trademark"
> Sept 20, 2005).
>
> Both told me that is better for me to hire a US
> attorney and that in the USA there are certain
> possibilities that are not allowed in Italy:
Did either of them confirm that a plaintiff can get personal jurisdiction
over you in the U.S.? If you have no contact with the U.S. at all, then you
can't be sued here. This, incidently, is a complicated determination, i.e.
one that should be made by a lawyer.
>
> 1) If the attorney is quite sure that the case
> is favorable to us, he will not ask us for money,
> and we can make a "percentage" agreement on the
> supposed final refund that we will get at the end.
> This seems strange to me (for sure, it is not
> allowed in Italy)
Trademark infringement actions in the U.S. cost a minimum of $75-100,000 and
can go way up from there. The term you are looking for is "contingency."
Trademark lawyers will do cases on contingency, but only if they're a
certain win AND the defendant has sufficient deep pockets so that a judgment
can be collected. Note, too, that, in contingency cases, you don't pay the
attorneys fees, but you DO pay costs. Costs can include filing fees,
deposition transcript fees, travel expenses, etc., and can be considerable.
>
> 2) Similar as above (1), but it is called
> "pro bono" support.
"Pro bono" cases are taken when there is a strong public policy reason for
doing so. Pro bono clients are, almost exclusively, non-profit
organizations or poor people. Generally, small businesses without a lot of
money won't be considered as pro bono clients unless there's some
particularly compelling _legal_ issue that's involved. For example, I'm
interested in a particular application of Fair Use Doctrine under U.S.
copyright law. I would consider taking a small business client on a pro
bono basis if their case implicated this issue.
The weakness of the U.S. civil justice system is that one must either have a
lot of money, or absolutely no money to gain access.
>
> 3) By the way, it seems that US law allows sued
> people to defend themselves without an attorney!
> http://www.business.gov/phases/managing/handle_legal_concerns/hiring_lawyer_faq.html
> (Just a fummy curiosity)
Yes, but it's a very, very, very bad idea.
>
> 4) A complete different question.
> (I understand that, if this possibility does not exist in the USA, my
> question may seem weird).
> Is it possible in the USA to make a "written official statement", so
> that in the future I can legally demostrate that on September 23, 2005
> (that is today) I have said (or written) what I have actually said (or
> written)?
I'm not clear what you're asking. If you want proof that you've said
something, you can have notarized, just as in Italy. There is no such thing
as an "official statement."
> This is possible in Italy in 3 ways:
> a) cheap way: to send a registered mail to myself, and never opening it
> until I need to. Cost: Euro 4 or so.
This provides proof in the U.S., too. However, it is extremely weak proof,
and easily rebutted.
> b) standard way: to register a document in the "Ufficio del Registro"
> (a local government office, recently it changed its name but a very few
> people uses the new one, I can't even remember it). Cost: Euro 300 or
> so.
No such thing within the U.S. Outside of the U.S., U.S. Consulates can
provide this service.
> c) expensive way: to give the document to a notary (Euro 1000+).
Notarization in the U.S. costs around $10.
>
> Thanks again,
> Fabrizio
>