Blog – William Day Law Group

What Are the 7 Steps in the Estate Planning Process?

Fri, 23 Feb 2024 18:18:05 GMT

Navigating the complex landscape of estate planning can seem daunting, but the peace of mind it brings is invaluable. At William Day Law, we understand the intricacies involved in safeguarding your legacy and ensuring your loved ones are cared for. Our experienced Maryland estate planning attorneys are dedicated to providing personalized legal counsel to craft the perfect estate plan tailored to your unique needs. Don't leave your Maryland estate to chance; secure your family's future with our expert guidance.

1. Assess Your Assets

The foundation of a robust estate plan is a comprehensive inventory of your assets. From real estate and investments to family heirlooms and digital assets, understanding what you own is the first step towards effective estate planning. Our team at William Day Law will assist you in cataloging your valuables, ensuring nothing is overlooked.

2. Consider Your Loved Ones' Future

Reflecting on the needs of your family members after you're gone is crucial. Whether it's appointing a guardian for minor children or making provisions for a family member with special needs, our estate planning services are designed to address these critical considerations, offering peace of mind that your loved ones' futures are secure.

3. Designate Your Beneficiaries

Estate planning empowers you to dictate the distribution of your assets. Without a clear plan, state laws determine the fate of your estate, often overlooking friends, extended family, and cherished causes. At William Day Law, we're committed to ensuring your legacy reaches those you hold dear, from family members to favorite charities.

4. Detail Your Distribution Wishes

Deciding how to divide your estate is a personal and complex process. Whether it involves setting up trusts for controlled asset distribution or other mechanisms, our legal expertise ensures your wishes are executed precisely as you envision.

5. Securely Store Your Estate Documents

An estate plan is only as effective as its accessibility when needed. We guide you through securely storing your documents and inform you who needs access to ensure your plan is executed without hurdles.

6. Keep Your Estate Plan Updated

Life's constant changes—births, deaths, marriages, and divorces—necessitate regular updates to your estate plan. Our team at William Day Law is here to ensure your plan evolves with your life, safeguarding its relevance and effectiveness.

7. Partner with a Trusted Estate Planning Attorney

The significance of professional legal guidance in estate planning cannot be overstated. While online solutions offer convenience, they lack the personalized protection your family deserves. At William Day Law, we're more than just attorneys; we're partners in protecting your legacy.

Embarking on your estate planning journey? Contact William Day Law at (240)-600-0174 for a consultation that respects your unique situation and provides tailored solutions for your peace of mind.

Three Strategies to Help Your Heirs Bypass the Probate Process

Tue, 30 Jan 2024 15:22:19 GMT

Planning for the future with a bit of foresight and guidance from an estate lawyer can alleviate a great deal of stress and financial burden for your loved ones later on.

The pain of losing a loved one is profound and navigating the complexities of estate settlement can intensify this grief, particularly if probate is involved. Probate, the legal procedure for estate settlement, can be time-consuming, costly, and stressful. However, with strategic planning, you can simplify the inheritance process for your heirs. Here are three effective strategies:

1. Draft and Regularly Update Your Will

"A will outlines your final wishes, including asset distribution, beneficiary designations, executor appointments, and burial instructions," explains William Day, founder and Principal of William Day Law Group in Bethesda, Maryland. "Without a will, the state dictates inheritance terms, which might not align with your preferences."

A comprehensive will should list all assets, name beneficiaries, appoint an executor, and include provisions for minors and pets. Regular updates are crucial to reflect changes in relationships, laws, assets, or tax regulations. "It's advisable to review your estate plan every two to three years," Day recommends, emphasizing the importance of keeping beneficiary and fiduciary designations current.

2. Designate Beneficiaries for All Financial Accounts

Ensure all financial accounts, including savings, investments, retirement plans, CDs, and life insurance policies, have designated beneficiaries. This straightforward step can prevent your heirs from enduring the probate process for these assets.

For example, a case I handled involved a straightforward estate inheritance, hindered by a single bank account lacking a beneficiary designation. This oversight necessitated opening a small estate in Maryland, involving considerable paperwork and stress for the heir.

To avoid such complications, consider Payable on Death (POD) designations for bank and credit union accounts, allowing beneficiaries direct access to funds without probate. However, exercise caution with joint account ownerships, as they can lead to potential abuse and unintended tax implications. "Beneficiary designations are generally safer and more efficient than adding joint owners," advises Day.

3. Explore Probate Avoidance Techniques

Various estate planning tools can either completely sidestep probate or significantly expedite the process, depending on your state and specific circumstances. For example, a living trust might be an ideal solution if your family dynamics are complex, you own property in multiple states, or you have significant assets.

"Living trusts are our preferred method for ensuring property passes directly to beneficiaries without probate," states Day. However, he cautions against including certain assets, like retirement accounts and life insurance policies, in living trusts due to potential tax ramifications.

By implementing these strategies, you can provide your heirs with the gift of a smoother transition during a difficult time, sparing them the complexities and delays often associated with probate.

Legal Audits: Why Your Business Needs One | William Day Law Group

Tue, 30 Jan 2024 14:36:11 GMT

As a Maryland attorney, I understand that the term "audit" often carries a negative connotation, evoking thoughts of IRS scrutiny and financial distress. However, from a legal perspective, an audit can be an invaluable tool for your business. Conducting a legal audit can not only save your organization money but also preemptively address potential legal challenges down the line. In Maryland, our firm specializes in providing comprehensive legal audits tailored to the unique needs of your business, ensuring that we identify and strategize solutions for any legal issues uncovered.

What exactly is a Legal Audit?

Think of a legal audit as a proactive health check for your business. Conducted by seasoned attorneys with a deep understanding of business law, these audits meticulously review various facets of your business. From your company's structure and management to its policies, procedures, and day-to-day operations, we assess all areas to identify any potential legal risks or compliance issues. This process is crucial for uncovering vulnerabilities that could lead to costly legal disputes or compliance penalties.

The reality of running a business is that it's easy to become engrossed in financial and operational concerns, especially during rapid growth phases. However, the legal well-being of your business is just as critical as its financial success. A legal audit performed by a knowledgeable business lawyer can ensure your company remains in good legal standing, safeguarding its future.

Preventative measures through a legal audit can significantly minimize legal risks, acting as a shield for your business against unforeseen legal troubles.

Coverage of a Legal Audit

The scope of a legal audit can vary based on your company's industry, the services or products it offers, and other specific factors. Nonetheless, there are common areas that most legal audits will scrutinize, including:

Protection of Personal Assets : Ensuring your business structure effectively limits personal liability and that you're maintaining this structure properly to shield personal assets from company debts and obligations.
Contracts : Evaluating the use of standard contracts that protect your company's interests, ensuring all business aspects are covered by contracts that are both current and legally enforceable.
Employee Matters : Reviewing your employee handbook and ensuring your policies are in line with state and federal laws regarding employment and discrimination.
Tax Compliance : Confirming adherence to all levels of tax laws, from local to federal, encompassing various tax categories.
Intellectual Property and Trade Secrets : Protecting your intellectual property through copyrights and trademarks, and using nondisclosure agreements to safeguard trade secrets.
Websites : Ensuring your website complies with copyright, terms of use, and privacy policy requirements.
Recordkeeping : Assessing the adequacy of your recordkeeping practices to protect you and your company in legal or compliance matters.
Customer Data Protection : Verifying that your data protection policies meet state, federal, and international privacy standards and that there are measures in place to prevent data breaches.
Compliance : Reviewing your company's adherence to required permits, licenses, and regulations specific to your business sector.

This list is not exhaustive; working closely with an attorney is crucial to tailor your legal audit to your company's specific needs and risks.

For Maryland businesses interested in understanding more about legal audits or wishing to schedule one, our firm is at your disposal. We are committed to providing a thorough legal checkup for your company, ensuring its continued success and legal integrity. Contact us to discuss how a legal audit can benefit your business in detail.

Understanding the Corporate Transparency Act: What You Need to Know

Tue, 12 Dec 2023 17:32:44 GMT

Decoding the Corporate Transparency Act (CTA) for you, the business owner, in a clear and straightforward manner.

Background of the CTA : Enacted as part of the Anti-Money Laundering Act of 2020 and effective from January 1, 2024, the CTA aims to combat money laundering and terrorist financing. It's a game-changer in how businesses disclose their ownership information, giving the federal government visibility into the actual individuals behind corporations and similar entities.

Who's in Charge? : The Financial Crimes Enforcement Network (FinCEN) of the U.S. Treasury Department is responsible for implementing the CTA. Despite their efforts to educate the public, many business owners remain unaware of the new requirements.

Who Must Report? : If you're a corporation, limited liability company, or a similar entity formed by filing with a state office or Indian Tribe, you're likely a "reporting company" under the CTA. However, there are notable exemptions like large operating companies and dormant companies.

What to Report? : Reporting companies must file beneficial ownership information (BOI). This includes details about your company, its beneficial owners (individuals with substantial control or at least a 25% ownership interest), and the company's applicants. Note that while trusts aren't typically reporting companies, trustees might need to report in certain cases.

Reporting Deadlines : Existing companies have until January 1, 2025, to file their initial BOI report. For companies formed after January 1, 2024, the deadline is 90 days post-formation, and for those formed after January 1, 2025, it's 30 days. Remember, you must update any changes within 30 days.

Consequences of Non-Compliance : Failing to report can lead to a $500 daily fine and up to two years of imprisonment. It's serious business.

How to Report? : FinCEN is expected to launch a web-based reporting portal. While some information might be straightforward to report, determining who qualifies as a “beneficial owner” can get complex.

Privacy and Access : The information is primarily for law enforcement and related agencies, but can also be accessed by state and local agencies, foreign law enforcement via U.S. agencies, and the IRS.

Moving Forward : Stay updated through FinCEN's website and consider seeking legal advice to ensure compliance. Preparing ahead of the reporting deadlines is crucial to safeguard your business from any legal repercussions.

At William Day Law Group, we're committed to guiding you through these changes and protecting your business interests. As the landscape evolves, we'll keep you informed and ready to navigate these new requirements. Please contact us if you would like assistance.

5 Myths About Estate Planning Debunked!

day@williamdaylaw.com (William Day) — Thu, 07 Dec 2023 19:56:38 GMT

Estate planning is a crucial aspect of life, yet it's often shrouded in misconception. Many people feel it's unnecessary, confusing, or simply not for them. As an estate planning attorney in Maryland with over 18 years of experience, I've witnessed firsthand the negative impact these myths can have on individuals and families. In this blog post, I'll debunk the five most common myths about estate planning and empower you to take control of your future.

Myth #1: Estate Planning is Only for the Wealthy

This is perhaps the most pervasive myth concerning estate planning. Many people believe it's only necessary if you have vast wealth or extensive assets. However, this couldn't be further from the truth. Estate planning is for everyone, regardless of age, income, or financial status. Even if you have limited assets, it's crucial to have a plan in place to ensure your assets are distributed according to your wishes and that your loved ones are protected.

Myth #2: You're Too Young to Worry About Estate Planning

Another common misconception is that estate planning is only for older adults. While it's true that planning becomes more critical as you age, it's never too early to start. Unexpected events like accidents or illnesses can happen to anyone at any age. Having an estate plan in place, even at a young age, provides peace of mind and protects your loved ones from potential burdens in difficult times.

Myth #3: All You Need is a Will

While a will is a fundamental element of estate planning, it's not the only tool available. Other crucial documents, such as powers of attorney and living wills, play vital roles in ensuring your wishes are carried out and your loved ones are prepared for any situation. A comprehensive estate plan should include a variety of documents tailored to your specific needs and circumstances.

Myth #4: Estate Planning is Just About Distributing Assets

While asset distribution is an important aspect, estate planning encompasses much more. It also involves making decisions about your healthcare, choosing guardians for minor children, and providing for your long-term care needs. A well-crafted plan addresses all these crucial issues, ensuring your wishes are respected and your loved ones are taken care of.

Myth #5: You Can Do It Yourself Online

While online resources can provide basic information about estate planning, it's not advisable to create your own plan without professional guidance. Each individual's circumstances are unique, and a qualified estate planning attorney can assess your specific needs, identify potential pitfalls, and draft customized documents that meet your specific goals.

Take Control of Your Future

Estate planning may seem like a daunting task, but it's an essential step in securing your future and protecting your loved ones. By understanding and debunking these common myths, you can make informed decisions about your estate and create a plan that reflects your wishes and values. Remember, estate planning is not about death; it's about life and ensuring your legacy is preserved according to your desires.

Contact William Day Law Today

If you have questions about estate planning or are ready to start creating your own plan, don't hesitate to contact William Day Law. With over 18 years of experience serving Maryland residents, I'm dedicated to providing personalized guidance and helping you navigate the complexities of estate planning with confidence. Let's work together to build a secure future for you and your loved ones.

A Maryland Will - General Information

Wed, 29 Nov 2023 21:33:08 GMT

What is a Maryland Will?

A will is a written (typed or handwritten) document that directs the disposition of a person’s property after death.

Does a Maryland Will Dispose of All Assets?

A will is effective only with regard to certain types of assets, often called “probate” assets. Generally, these are assets that belong solely to you or are titled only in your name.

A will does not affect the disposition of property that is titled in the names of two or more persons as “joint owners with right of survivorship.” Property titled in this manner will automatically belong to the surviving joint owner(s) upon the death of the first joint owner, regardless of the provisions of the deceased’s will. Similarly, property owned by you and your spouse as “tenants by the entirety” will immediately become the sole property of the surviving spouse when the other spouse dies. However, your interest in property that you own with someone else as “tenants in common” is a probate asset, which will be disposed of by your will when you die.

As a general rule, a will does not dispose of insurance proceeds. These proceeds will be paid to the beneficiary designated with the insurance company. A will may only dispose of insurance proceeds if your estate, or trust created under your will, is named as beneficiary (or there is no designated beneficiary). Pension benefits or annuities are not affected by a will unless the estate or trust created under the will is designated as the beneficiary (or there is no designated beneficiary).

Who Can Make a Maryland Will?

Anyone who is a least 18 years of age and of sound mind can make a will.

Are there Formal Requirements for a Valid Will?

In Maryland, you must sign your will, and two or more witnesses must sign the will in your presence. Each witness must be at least 18 years of age. Wills do not have to be notarized in Maryland.

Is a Will that has been Executed in Another State Valid in Maryland?

A will that is valid in the state where it was executed will be valid in Maryland. However, if your will was prepared in another state it should be reviewed to ensure that the language used in the other state will be given the same interpretation under Maryland law. In addition, death taxes and probate laws vary from state to state; therefore, your will should reflect the laws that would apply to your estate when you die. If you move to another state, your Maryland will should be reviewed by a lawyer in the new state in order to determine if any changes are necessary or desirable under that state’s laws.

Are there Any Restrictions on the Manner in which a Will May Dispose of Property?

Although the ancient “rule against perpetuities” limits how long property may be held in a trust, generally, no restrictions on the disposition of property exist. In addition, Maryland law now allows you to waive application of the rule against perpetuities in your will. A surviving spouse, however, has the right to “elect against the will.” This means that regardless of the provisions of the deceased spouse’s will, the surviving spouse may claim up to one-half of the probate assets if the deceased spouse had no descendants, or one-third of the probate assets if there are descendants. This prevents a spouse from being disinherited. Children have no similar rights in Maryland and may be disinherited.

Can a Will be Changed?

If you are competent, you can change your will at any time by signing a document called a “codicil” or by having a new will prepared. Either a codicil or a new will must be executed with the same formal requirements as the original will. You should not attempt to change your existing will by writing on it.

When Should a Will be Changed?

Review your will periodically. A significant change in personal or financial circumstances may mean that your will should be revised or replaced. For example, births, deaths or a change in marital status warrants a review of your will. Changes in federal or state tax laws may necessitate revisions in your will.

How is a Will Affected by a Subsequent Marriage or Divorce?

In Maryland, a will is not affected simply by a subsequent marriage. But if a child born following that marriage survives you, your will is revoked. A divorce automatically revokes the provisions of the will that pertain to your former spouse, but does not affect other provisions of the will. Thus, provisions benefiting family members of your former spouse will remain in force.

What if I Die Without a Will?

If you die without a will, state law will determine how your probate assets will be distributed. In Maryland, if you are survived by a spouse and at least one minor child (under the age of 18), your spouse will receive only one-half of the probate assets, and your children will receive the other one-half (a deceased child’s share will pass on to that child’s own children).

If you are married and all of your surviving children are over the age of 18, or if you have no descendants, and a parent survives you, your spouse will receive the first $15,000 of the probate assets, plus one-half of the balance of those assets. The remaining probate assets will pass to your surviving descendants or parents.

Your surviving spouse will receive the entire probate estate only if you have no descendants or parents who survive you. If you have no surviving spouse, your descendants will receive all probate assets. Your siblings or more remote relatives will receive a portion of your probate estate if a spouse, parent or descendant does not survive you.

Under Maryland law, probate assets will pass to the county board of education only if there are no surviving blood relatives.

Can a Will Provide for Anatomical Gifts?

A will may include specific directions for the disposition of your body and funeral. Because your will may not be reviewed immediately after death, such directions should be communicated to family members so they are aware of your wishes at the time of your death. If you wish to donate your body for research or transplantation, you should also notify family members and carry an organ donor card or note your wishes on your Maryland driver’s license. Maryland law also provides a one-page anatomical gift form concerning organ donation.

When are the Contents of a Will Made Known to Relatives?

You do not have to reveal the contents of your will to anyone while you are alive. After your death, the person who has custody of the will may disclose its contents to family members. The original will must be filed with the appropriate Register of Wills, where it will be recorded as public record. All beneficiaries named in the will and family members who would receive the probate assets if no will existed will be notified of the opening of the estate upon your death.

Who Should Prepare Your Will?

Your will should be prepared by a lawyer in order to structure the will so that it reduces death taxes, ensures that the property will be distributed as you desire and satisfies other legal requirements affecting your estate.

What Kind of Taxes are Payable When a Person Dies?

Both the federal and Maryland state governments impose taxes upon the property of a decedent. A federal estate tax with graduated rates is imposed on all property interests that the decedent owned at the time of death. The federal estate tax applies not only to probate assets, but also to such non-probate assets as joint property and insurance proceeds.

An estate may be subject to Maryland estate tax if the value of the assets exceeds the exemption amount. A properly drawn will can reduce federal and Maryland estate tax substantially.

Maryland imposes an inheritance tax on probate property, joint property, and certain other property. There is no inheritance tax on assets passing to exempt charities, a spouse, child (which includes a stepchild or former stepchild), other lineal descendant (grandchild, great grandchild, etc.), parent, stepparent, brother, sister, son-in-law, daughter-in-law, or the spouse of other lineal descendants. Inheritance tax at the rate of 10 percent will be assessed if the recipient is a niece or nephew, a more distant relative or a non-relative.

Who Should be My Personal Representative?

A personal representative is the individual or institution named to handle the administration of your estate. It is not necessary to name a lawyer as a personal representative, but your personal representative should be a person who is capable of handling financial matters, maintaining detailed records and administering your estate.

How Should My Will Provide for My Children?

In your will, you may name the person who will serve as guardian if you and your spouse both die while the child is a minor (under the age of 18). A will also gives you the opportunity to create trusts that will control how, when and under what circumstances your assets will be turned over to your children. In this way, you can prevent funds from being distributed to children before they are mature enough to handle them responsibly.

Where Should a Will be Kept?

A will should be kept in a safe place to avoid accidental loss or destruction. Executed wills may be kept in any secure location. Some law firms and banks retain clients’ executed wills in their vaults. In addition, an executed will can be filed for safekeeping with the Register of Wills in the county where you live. You should only keep a will in a safe deposit box if someone other than you has access to the box.

What Are the Three Elements of an Estate Plan?

Fri, 17 Nov 2023 18:59:23 GMT

Understanding Estate Planning: A Comprehensive Guide

Estate planning, often referred to as end-of-life planning, is a crucial process that involves making formal arrangements for the distribution of your assets after your passing. This is a vital step in ensuring that the fruits of your life's work are passed on according to your wishes, rather than being left to default legal processes or causing familial disputes in already challenging times.

Estate plans vary in size and complexity, but typically include three key elements:

Will or Trust : These documents are central to estate planning. Both wills and trusts let you specify your beneficiaries, but they operate differently. A will comes into effect posthumously, distributing your assets as per your instructions. A trust, on the other hand, is an active legal entity during your lifetime, managing and distributing your assets according to the set terms.
Powers of Attorney : This legal document authorizes another individual to make important decisions on your behalf. There are two types: financial and medical. A financial power of attorney handles your financial matters if you're incapacitated, while a medical power of attorney makes healthcare decisions for you under similar circumstances.
Beneficiary Designations : These are essential, especially for assets not covered by wills or trusts, like life insurance policies and retirement accounts. Beneficiary designations can supersede wills or trusts, as these assets often bypass the probate process.

When choosing beneficiaries, ensure they are legally adult, understand the estate planning process, have the mental capacity to make informed decisions, can communicate their wishes effectively, and maintain a positive relationship with the person selecting them.

Frequently Asked Questions About Estate Planning

Q: What are the three main goals of an estate plan? A: The primary objectives are ensuring your assets are distributed as you wish, delegating decision-making authority if you're incapacitated, and clearly defining your beneficiaries to prevent legal or familial disputes.

Q: What are common estate planning mistakes? A: Common errors include not properly funding trusts, leading to insufficient asset coverage, and failing to update plans in response to life changes like marriage, divorce, or childbirth, potentially leading to unintended asset distribution.

Q: How do I choose an effective estate planning attorney? A: Look for experience in relevant legal areas, clear and responsive communication, transparent fee structures, and a sense of trust and comfort in your interactions.

Q: What assets are typically included in an estate plan? A: Commonly included assets are real estate, personal property (like jewelry or furniture), financial investments (stocks, bonds, mutual funds), life insurance policies, family businesses, and valuable collections.

This guide provides an overview for those beginning their estate planning journey, emphasizing the importance of thoughtful preparation to ensure your legacy is preserved and passed on as you intend.

Please visit our website and click on the Contact tab to send a message. Please write “Estate Plan” in the “How can we help” form.

What Is the First Step in Estate Planning?

Sat, 11 Nov 2023 20:34:35 GMT

As a Maryland attorney with 18 years of experience, let me simplify the concept of estate planning for you. Imagine you're creating a roadmap for your family to follow once you're not there to guide them. It's not just for the wealthy or elderly, but for anyone who has something of value to pass on, whether it’s heirlooms, a car, a home, or a savings account.

The First Step in Estate Planning

The journey starts with making a list. Write down everything you own and owe, like your home, car, life insurance, retirement funds, and any debts. It’s like taking stock of your life's collection.

Choosing Your Captain

Next, think about who you want to be the captain of your ship, steering it to the right ports after you’re gone. This person is your executor, and they’ll ensure your treasures are handed out just as you wish and all your bills are paid.

Mapping Your Wishes

Now, it's time to draw your treasure map – that’s your will. It’s a document where you put down in words how you want your things to be divided and who will take care of your kids. It needs your signature and the signatures of two witnesses to be legally strong.

Avoiding Choppy Waters

To avoid the court stepping in and taking a long time to distribute your assets (that’s called probate), you might consider setting up a living trust. It’s like a safety deposit box that only opens when you can’t manage your affairs or after you pass away. It's private and swift, ensuring your loved ones get their inheritance without delay or public scrutiny.

Understanding Probate

Probate is like an official audit of your estate by the court. It can be a slow and public process, and it can eat into the inheritance you leave behind. That's why planning ahead is crucial.

Frequently Asked Questions

What's the very first step in estate planning ?

The very first step is to create a will where you list your possessions and decide who gets what, including who will look after your children.

What shouldn’t you put in a will?

Avoid funeral instructions or leaving things to pets in your will. Instead, talk to a trusted person about these matters.

How can you skip the probate process?

Start your estate planning early, use a living trust, and make sure your accounts have named beneficiaries.

What are the key parts of estate planning?

Remember these five things: a will, a trust, a financial power of attorney, a health care directive, and beneficiary designations.

Why is this all important?

Because you care about your family's future. An experienced attorney can make sure your estate plan is solid, so you can rest easy knowing your loved ones will be taken care of according to your wishes.

COVID-19 Financial Relief CARES Act: PPP Loans Q&A

Fri, 03 Apr 2020 16:18:00 GMT

Updated 4/3/2020 at 12:07 PM EDT: As of the this time most banks are still not taking applications as they wait for further guidance from The Small Business Administration (SBA). Bank of America is taking online applications from businesses that have a current relationship with the bank.

What is the Paycheck Protection Loan Program?

The Paycheck Protection Program (PPP) is a brand-new loan program structured around the SBA’s existing 7(a) loan program and will fund loans to qualifying small businesses.

Who is eligible for the Paycheck Protection Program?
A business, including a qualifying nonprofit organization, is eligible for PPP loans if it (a) meets the applicable North American Industry Classification System (NAICS) Code-based size standard or other applicable 7(a) loan size standard, both alone and together with its affiliates; or (b) has an employee headcount that is lower than the greater of (i) 500 employees or (ii) the employee size standard, if any, under the applicable NAICS Code. Businesses that fall within NAICS Code 72, which applies to accommodations and food services, are also eligible if they employ no more than 500 people per physical location. Sole proprietorships, independent contractors, and self-employed individuals are also eligible. More information on the NAICS-Code-based size standards can be found here .

How do business affiliates affect borrower eligibility for PPP loans?

Applicants typically must include their affiliates when applying size tests to determine eligibility. However, the CARES Act waives the affiliation requirement for the following applicants: Businesses within NAICS Code 72 with no more than 500 employees;
Franchises with codes assigned by the SBA, as reflected on the SBA franchise registry; and
Businesses that receive financial assistance from one or more small business investment companies (SBIC).

Who can make PPP loans?

Banks that are currently approved SBA 7(a) lenders and other banks that get approved by the SBA and the Treasury Department to specifically become PPP lenders. PPP lenders will be delegated authority to make and approve PPP loans, with no additional SBA approval required. Search the SBA lender tool .

What underwriting standards will PPP lenders use?
PPP lenders will only be required to consider whether an applicant was in operation on February 15, 2020, and either had employees for whom it paid salaries and payroll taxes or paid independent contractors. Applicants will not be required to demonstrate repayment ability.

What is the maximum loan amount for a PPP loan?
The maximum PPP loan available to any business is 2.5 times the average monthly payroll costs of the business over the year prior to the date of the PPP loan, excluding the prorated portion of any annual compensation above $100,000 for any person. There are some adjustments for seasonal employers and an overall maximum loan amount of $10 million.

How can PPP loan proceeds be used?

PPP loan proceeds can be used for:

Payroll costs; Group healthcare benefit costs and insurance premiums;
Mortgage interest (but not prepayments or principal payments) and rent payments; and
Interest on debt that existed as of February 15, 2020.

What is considered a payroll cost for PPP loan purposes?

“Payroll costs” include vacation, parental, family, medical and sick leave; allowances for dismissal or separation; payments for group health care benefits, including insurance premiums; and retirement benefits. Calculations vary slightly for seasonal businesses and businesses that were not in operation between February 15 and June 30, 2019.

Will PPP loans be forgiven?

PPP loans can be forgiven to the extent that the loan proceeds have been used for payroll costs and the following:

Certain utilities, including electricity, gas, water, transportation, and phone and Internet access for service that began before February 15, 2020; and Additional wages paid to tipped employees. These costs must be incurred and paid during the eight weeks after the loan is made. The amount forgiven will be reduced based on failure to maintain the average number of full-time equivalent employees versus the period from either February 15, 2019, through June 30, 2019, or January 1, 2020, through February 29, 2020, as selected by the borrower. The amount forgiven is also reduced to the extent that compensation for any individual making less than $100,000 per year is reduced by more than 25 percent measured against the most recent full quarter. Reductions in the number of employees or compensation occurring between February 15, 2020, and 30 days after enactment of the CARES Act will generally be ignored if the action (layoff or salary reduction) is reversed by June 30, 2020.

Forgiven amounts will not be considered cancellation of indebtedness income for federal tax purposes.

What are the primary terms of the PPP loans?

Any amount not forgiven as described above will bear interest at a maximum rate of 4 percent and mature no later than 10 years after the amount of forgiveness is applied.

When will payments begin on PPP loans?

Payments on PPP loans will be deferred for 6 to 12 months.

What are the terms of the deferral on PPP loans?

SBA will issue guidance on the terms of the deferral period.

Do PPP loans have collateral or personal guaranty requirements?

PPP loans have no collateral or personal-guarantee requirements. There will be no recourse to owners of borrowers for nonpayment, except to the extent proceeds are used for an unauthorized purpose.

Are PPP loans guaranteed by the government?

PPP loans are backed by a 100 percent guaranty from SBA.

What fees will have to be paid to the SBA on PPP loans?

The SBA has waived prepayment penalties, guaranty fees and the annual fee applicable to other 7(a) loans.

Where can I find an Application?

If you wish to begin preparing your application, you can download a copy of the PPP borrower application form to see the information that will be requested from you when you apply with a lender.

Bill Day
email: day@williamdaylaw.com
Facebook: www.facebook.com/williamdaylaw
LinkedIn: www.linkedin.com/in/williamday/

Do you have all of your important medical and legal documents in order?

Thu, 19 Mar 2020 16:12:00 GMT

If coronavirus, or any other illness or injury, hits your family you’ll need to have these documents and information readily available.

Based on our experience, here is what we suggest organizing to make sure that you have needed information together, in one place, in case you or a loved one contract the virus—or have any other health or emergency to contend with.

Legal Documents

Marshal Your Assets

It is important to gather all of your bills, bank accounts, investment accounts, retirement accounts, life insurance and other assets and liabilities together in one place. This will allow your loved one to help handle your day to day

You should also consider providing access to online accounts to a trusted loved one in the event someone is quarantined.

Medical Information

It is critical to have medical information in an easily accessible location. Make sure that you have organized your medical history, primary care physicians and their contact information, medicines (prescription and over the counter) and other key medical information for your loved ones. If you end up in the hospital, this will ensure you get appropriate treatment quickly and efficiently without delays from not having access to this information.

While there is always more that you can do, this is a great start that can really help your family.

Getting your information and wishes together can help ensure that if something happens to you, you’re your loved ones aren’t left without key information and documents that you need.

Do it today. Nobody ever wishes they had prepared less for an emergency.

If you would like help getting your legal documents in order, William Day Law is here to help. We have a useful form to help you organize all of your accounts and can prepare legal documents with your specific needs and wishes with a fairly quick turnaround time.

In addition, I will come to you to ensure all documents are properly signed, witnessed and notarized while following CDC guidelines on social distancing. Please visit our website and click on the Contact tab to send a message. Please write “LEGAL DOCUMENTS” in the “How can we help” form.

We are licensed in Maryland and the District of Columbia

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Does a Trust Protect Assets from Creditors

Sun, 24 Nov 2019 16:03:00 GMT

How Do You Protect Assets From Creditors?

An important estate planning goal for many individuals is to be sure that their money ultimately passes to their heirs, rather than their creditors. One common estate planning tool used for this purpose is the trust. Essentially, a trust is a legal arrangement under which the creator (often called a “trust maker” or “settlor”) transfers ownership of assets into the care of another person (the “trustee”) to be administered for the benefit of another person or group of people (the “beneficiaries”). The document that establishes the responsibilities of the trustee and the rights of the beneficiaries is called the “trust instrument”, “trust agreement”, or simply “the trust.”

Irrevocable Trust

One type of trust that will protect your assets from your creditors is called an irrevocable trust. Once the trust creator establishes an irrevocable trust, he or she no longer legally owns the assets he or she used to fund it, and can no longer control how those assets are distributed. By creating an irrevocable trust, the trust maker surrenders the ability to later modify the trust instrument.

Due to this change in ownership, a future creditor cannot satisfy a judgment against the assets held in irrevocable trust. It’s critically important to understand that the extent of protection turns largely on state law issues.

Importantly, a court can undo an individual’s transfer to a trust if it finds that the transfer was made with the intention of defrauding creditors. These transfers are considered fraudulent, and in many cases carry significant legal penalties. This is why it is important to practice asset protection planning well before you even anticipate being the subject of any liability. Moreover, it is imperative that you work closely with experienced and credible legal counsel before engaging in any measure of asset protection.

Revocable Trust

A revocable living trust, on the other hand, does not protect your assets from your creditors. This is because a revocable living trust can, by its terms, be changed or terminated at any time. Due to these terms, the trust creator maintains ownership of his assets. Therefore, a creditor could force the owner of a revocable living trust to terminate the trust and surrender the assets.

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William Day Law Group, LLC Earns Veteran-Owned Small Business (VOSB) Certification

Sat, 13 Jan 2018 16:33:00 GMT

To be eligible, applicants must be a small business, as determined by the U.S. Small Business Administration; must be at least 51 percent owned by at least one veteran; and the management and daily business operations must be controlled by at least one veteran. The veteran-owned business must be officially verified by the Department of Veteran Affairs as a VOSB. As such, the VOSB certification places William Day Law Group, LLC on a respected list of veteran-owned businesses that are government approved providers of high quality services and added to the Veteran business database.

“We appreciate the support and recognition by the Department of Veterans Affairs to veteran-owned business owners, and appreciate companies who choose to do business with a VOSB”, stated William Day Law Group’s Principal and Founder, William Day. “We are very proud to have received the VOSB certification, and look forward to continuing to growing our government services and providing quality legal counsel and services to all our clients.”

About William Day Law Group, LLC

William Day Law Group is a Maryland law firm providing litigation and trial experience, business planning , estate planning , and intellectual property services. We believe in taking a proactive approach that averts potential legal problems before you are involved in costly litigation. Our experienced attorneys understand both your legal needs and how important it is to match them with your overall business and personal objectives.

The post William Day Law Group, LLC Earns Veteran-Owned Small Business (VOSB) Certification appeared first on William Day Law Group .

WHAT DOES IT MEAN WHEN MY BUSINESS ENTITY IS NOT IN GOOD STANDING OR FORFEITED?

Tue, 05 Sep 2017 17:34:00 GMT

You just found out that your Maryland Limited Liability Company (LLC) is not in good standing. What do you do now?

“Not in Good Standing”

“Not in good standing” means the business entity is not in compliance with one or more Maryland laws that apply to businesses and their responsibilities in the State of Maryland.

The most common reasons that a business is not in good standing are
– Failed to file a Business Personal Property Return (PPR), also called a Form 1
– A monetary penalty resulting from the late filing of a PPR
– An issue with the Maryland Office of the Comptroller
– An issue with the Maryland Department of Labor, Licensing and Regulation
– A check or other form of payment that was dishonored
– Not having an active resident agent

The status can be returned to Good Standing by correcting the reason in which the business is out of compliance.

Failure to bring a “Not in Good Standing” company to “Good Standing” can result in forfeiture and the loss of the ability of your company to perform work or otherwise operate in the state of Maryland.

“Forfeited”

“Forfeited” means the right of the entity to conduct business in the State of Maryland has been relinquished. For domestic entities, this also means that the business has no existence under the laws of the State of Maryland. The business cannot bring a lawsuit to collect on a contract or bring any other legal proceeding for its benefit.

In most circumstances, a business is forfeited only after it has been “not in good standing,” so the most common reasons for forfeiture are the same as the reasons businesses fall out of good standing.

Even a “Forfeited” entity can be revived and brought back to Good Standing. Please contact William Day Law Group for help in making sure your Maryland entity is current with filings and stays in good standing.

The post WHAT DOES IT MEAN WHEN MY BUSINESS ENTITY IS NOT IN GOOD STANDING OR FORFEITED? appeared first on William Day Law Group .

Defending Trademark Infringement & Cyberpiracy

Fri, 01 Sep 2017 15:56:00 GMT

My client was sued for trademark infringement and cyberpiracy. The United States District Court for the District of Maryland granted summary judgment and the Fourt Circuit Court of Appeals Affirmed in B&J Enters. v. Giordano , 329 F. App’x 411, 417 (4th Cir. 2009) . Below is my brief to the Fourth Circuit Court of Appeals.

STATEMENT OF FACTS

The domain name: www.washingtontalentagency.com is the trade name that is the subject of this lawsuit.

The Defendant Albrecht Entertainment Service, Inc. is the registered owner of the domain name www.washingtontalentagency.com. Defendant Albrecht Entertainment Service, Inc. is a corporation organized under the laws of the Commonwealth of Virginia trading as USA Talent Agency. On or about September 15, 2004, Albrecht Entertainment Service, Inc. bought and registered the domain name “usatalentagency.com”.

Albrecht Entertainment Service, Inc., trading as USA Talent Agency provides entertainment services in Colorado, Virginia, Maryland, Washington DC and the surrounding region. (A28). On the advice of their website developer, on or about January 28, 2005, Defendant Albrecht Entertainment Service, Inc. bought and registered the domain names “washingtontalentagency.com”, “marylandtalentagency.com”, “virginiatalentagency.com” and “coloradotalentagency.com” to reflect the geographic areas of their services. (A42, 28-29, 80). Each website is used as a portal site directing visitors to the parent site: “usatalentagency.com” (A43, 29, 80).

Defendant Ken Giordano, a resident of the State of Colorado, is the President of Albrecht Entertainment Service, Inc.

Plaintiff is a corporation organized under the laws of Maryland and has been trading as “Washington Talent Agency” since 1967. (A85).

Sometime after June 2005, Plaintiff contacted Defendants to attempt to purchase the domain name “washingtontalentagency.com” (A104-105).

On July 10, 2006, after filing this lawsuit, Plaintiff filed an application to register the mark “Washington Talent Agency” with the United States Patent and Trademark Office (“USPTO”). (A89). On December 25, 2007, the USPTO published the mark for opposition. On January 24, 2008, Defendant filed an opposition with the USPTO alleging, inter alia, that the claims and assertions regarding the mark were misstated and/or fraudulent.

SUMMARY OF ARGUMENT

To prevail on a claim for trademark infringement, Plaintiff must demonstrate that it has a valid, protectable trademark and that the Defendant’s use of the trademark is likely to cause confusion among consumers. The disputed term “Washington talent agency” is geographically descriptive and thus not deserving trademark protection unless it has achieved secondary meaning (1) in the Defendants’ trade area and (2) prior to the time the Defendant entered the market.

In determining secondary meaning the Fourth Circuit considers the following factors in determining whether secondary meaning exists: (1) advertising expenditures; (2) consumer studies linking the mark to a source; (3) sales success; (4) unsolicited media coverage of the product; (5) attempts to plagiarize the mark; and (6) the length and exclusivity of the mark’s use.

When viewing the evidence in the aggregate and in the light most favorable to Plaintiff, they have not met their burden to prove that the mark has achieved secondary meaning within the eyes of the consuming public. No reasonable fact finder could find that Plaintiff had a valid trademark in the geographically descriptive term, “Washington talent agency.”
Since Plaintiff has failed to introduce evidence sufficient to prove secondary meaning, their claim under the Anticybersquatting Consumer Protection Act (“ACPA”) 15 U.S.C. § 1125(d) must also fail. To establish a prima facie case under ACPA Plaintiff must prove in relevant part that: it has a valid trademark entitled to protection and Defendants had registered the domain name with bad faith intent to profit. A prerequisite for bringing a claim under the ACPA is establishing the existence of a valid trademark and ownership of that mark.
Plaintiff was given a second chance to produce acceptable evidence to overcome a motion for summary judgment. Plaintiff failed to do so. The District Court properly granted Defendants’ motion for summary judgment and denied Plaintiff’s motion.

ARGUMENT

I. The unsworn letters were properly stricken, however, the letters, even if considered, are not enough to prove secondary meaning.

In support of Plaintiff’s motion for reconsideration of the grant of summary judgment, Plaintiff collected seven unsworn “consumer testimonial letters…to add weight to the previously submitted affidavits”. (A247, A303-310). Defendant moved to strike the unsworn statements (A263) which was granted by Memorandum and Order (A268).

The seven unsworn letters submitted by Plaintiff were properly excluded. This Court has consistently ruled that “it is well established that unsworn, unauthenticated documents cannot be considered on a motion for summary judgment.” Orsi v. Kirkwood , 999 F.2d 86, 92 (4th Cir. 1993) citing Hal Roach Studios, Inc. v. Richard Feiner and Co ., 896 F.2d 1542, 1550-51 (9th Cir. 1990); Martz v. Union Labor Life Ins. Co ., 757 F.2d 135, 138 (7th Cir. 1985). The unsworn letters do not qualify as affidavits and should not be considered by the Court when ruling on a motion for summary judgment. See First Nat’l Life Ins. Co. v. California Pacific Life Ins. Co. , 876 F.2d 877, 881 (11th Cir. 1989); Davis v. Howard , 561 F.2d 565, 569 (5th Cir. 1977). “The arguments of counsel, absent any evidence such as sworn affidavits accompanying objections to a motion for summary judgment, fail to meet the evidentiary standard necessary to create a genuine issue of material fact.” Roundtree v. Fairfax County School Bd. , 933 F.2d 219, 223 (4th Cir. 1991).

Plaintiff cites Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986) for the proposition that the unsworn letters should have been considered by the District Court in ruling on the motion to reconsider.(Appellant Brief at page 10). However, Plaintiff misinterpreted the holding and provided an incomplete quotation. The entire quotation as stated by the Celotex Court says in relevant part:

We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose her own witnesses. Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c) , except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred. Celotex , 477 U.S. at 324 (emphasis added).

The holding by the Celotex Court did not expand Rule 56(c) to allow unauthenticated and unsworn documents when opposing a motion for summary judgment. The Court was explicit in saying that the nonmoving party must rely on the evidentiary materials listed in Rule 56(c). The unsworn letters submitted by Plaintiff are not the kinds of evidentiary materials listed in Rule 56(c). They were unsworn and thus could not be considered on summary judgment. It should also be noted that Plaintiff was given multiple opportunities to provide sufficient evidence that complied with Rule 56. As the District Court stated in is Memorandum and Order striking the unsworn statements:

In response to the Order striking the unsworn statements, Plaintiff filed a document on December 20, 2007 entitled “Supplement to Plaintiff’s Motion for Reconsideration” (A271) and attached six affidavits (A273-284). The District Court conditioned the reconsideration of the grant of summary judgment on Plaintiff’s submission of evidence, by October 22, 2007, adequate to establish the existence of a genuine issue of material fact preventing summary judgment for Defendants. (A242). It was almost two months past that deadline when Plaintiff, yet again, was attempting to correct there evidentiary shortcomings.

Even though the affidavits were tardy and not admitted into evidence, the District Court, contrary to Plaintiff’s assertions, addressed the sufficiency of the affidavits stating: “This proffered evidence, consisting of five affidavits, would—even if considered—not change the Court’s conclusion.”(A297).

If, however, this Court is inclined to accept the unsworn letters and or tardy affidavits with equal weight, the limited number (seven letters and two affidavits) does not establish that a substantial portion of the consuming public associates “Washington Talent Agency” with Plaintiff’s particular business. See, Dick’s Sporting Goods, Inc. v. Dick’s Clothing & Sporting Goods, Inc. , 1999 U.S. App. LEXIS 19942 (4th Cir. 1999)(unpublished)(“No reasonable juror could find that 65 checks and 15 affidavits connote that a substantial portion of the consuming public associated the trade name “Dick’s” or “Dick’s Sporting Goods” with Sporting’s business as of 1989.”); Master, Wardens, etc. v. Cribben & Sexton Co. , 202 F.2d 779, 784 (C.C.P.A. 1953) (Mere affidavit of applicant together with testimony of several witnesses does not constitute sufficient basis for registration of geographical term.); In re Soccer Sport Supply Co. , 507 F.2d 1400, 1404 (C.C.P.A. 1975) (four affidavits from purchasers were not sufficient evidence of secondary meaning).

Of the five affidavits, only one states that the words “Washington talent agency” acquired a secondary meaning. This vice president of a D.C. area party planning business, Gala Event’s, Inc., stated in relevant part, “Washington Talent is and has been synonymous with entertainment and talent in the Washington, D.C. Metropolitan area as far back as we can remember.” (A273). The opinion of one person, even if admissible, would by no means be sufficient to raise a factual issue as to the existence of a secondary meaning.

This conclusion is on point with the District Court’s ruling. Pursuant to established holdings by this court and other jurisdictions, the unsworn letters were properly stricken and should not be considered as evidence supporting secondary meaning. The decision of whether to admit the tardy affidavits was in the sound discretion of the trial judge. Given the history of this litigation and the ample opportunities afforded to Plaintiff to support their case, the tardy affidavits along with the unsworn letters were properly excluded and should not be considered by this Court.

II. The Motion for Summary Judgment in favor of Defendants was proper given Plaintiff’s failure to provide evidence sufficient to prove that their mark has achieved secondary meaning

A. Plaintiff’s Term is Not Protectable

In order to prevail in an action for service mark infringement and unfair competition, a plaintiff must “first and most fundamentally prove that it has a valid and protectable mark.” U.S. Search, LLC v. U.S. Search.com, Inc. , 300 F.3d 517, 523 (4th Cir. 2002) citing Microstrategy Inc. v. Motorola, Inc. , 245 F.3d 335, 341 (4th Cir. 2001).

In this case “Washington Talent Agency’ is not a protectable term, it is geographically descriptive. A descriptive mark may be eligible for protection, but only if it has acquired a “secondary meaning” in the minds of the public.” U.S. Search , 300 F.3d at 523 (citations omitted). See also Burke-Parsons-Bowlby Corp. v. Appalachian Log Homes, Inc. , 871 F.2d 590, 595 (6th Cir. 1989). (“A geographically descriptive term is not inherently distinctive, and thus cannot receive trademark protection unless it has achieved secondary meaning.”)

B. Plaintiff’s term has not acquired a secondary meaning

This Court in Resorts of Pinehurst defines secondary meaning of a geographically descriptive mark as “the public’s association of the goods with a particular source as opposed to a particular place.” Resorts of Pinehurst, Inc. v. Pinehurst Nat’l Corp. , 148 F.3d 417, 421 (4th Cir. 1998). A “geographically descriptive term lacks secondary meaning if it still primarily denotes a geographic area, as opposed to a single source.” U.S. Search , 300 F.3d at 525 citing Burke-Parsons-Bowlby Corp. v. Appalachian Log Homes, Inc ., 871 F.2d 590, 595 (6th Cir. 1989). Therefore, it cannot receive trademark protection unless the Plaintiff can show that the term has acquired secondary meaning. It is the Plaintiff’s burden to show “secondary meaning (1) in the Defendants’ trade area and (2) prior to the time the Defendant entered the market.” Perini Corp. v. Perini Constr., Inc. , 915 F.2d 121, 125-126 (4th Cir. 1990) citing N. Hess’ Sons, Inc. v. Hess Apparel, Inc ., 738 F.2d 1412, 1413 (4th Cir. 1984) ( per curiam ).

Defendant purchased the domain “www.washingtontalentagency.com” in January 28, 2005. (A28) Plaintiff must show that their use of the trade name “Washington Talent Agency” had acquired secondary meaning in the Washington metro area prior to January 28, 2005.
The Plaintiff failed on the motion for summary judgment and on the motion to reconsider to show that the consuming public believes that the mark, when used in context, refers not to a particular place—Washington, D.C., but to the particular business that the mark is meant to identify.

“Secondary meaning exists if in fact a substantial number of present or prospective customers understand the designation when used in connection with a business to refer to a particular person or business enterprise.” Food Fair Stores, Inc. v. Lakeland Grocery Corp. , 301 F.2d 156, 160-61 (4th Cir.), cert. denied, 371 U.S. 817, 83 S. Ct. 31, 9 L. Ed. 2d 58 (1962). In the case of a trade name, secondary meaning is “the power of a name . . . to symbolize a particular business.” Perini Corp ., 915 F.2d at 125 (citations omitted).

The Fourth Circuit considers the following factors in determining whether secondary meaning exists: “(1) advertising expenditures; (2) consumer studies linking the mark to a source; (3) sales success; (4) unsolicited media coverage of the product; (5) attempts to plagiarize the mark; and (6) the length and exclusivity of the mark’s use.” U.S. Search , 300 F.3d at 525 quoting Perini Corp ., 915 F.2d at 125.

Advertising Expenditures
When asked about advertising expenditures, Plaintiff originally stated that they spent “roughly $100,000 in fiscal year 2005” but they are unable to allocate the spending between the Plaintiff’s different trade names. (A91 at 11-16). No other evidence was offered to prove that amount until Plaintiff’s motion for reconsideration.

Plaintiff, in support of their motion for reconsideration, produced, under seal, Tax returns for the years 1970-1977, 1980-1981, 1997-2004 and Profit and Loss statements From September 1998 to August 2007. Since Defendant’s entered the market on January 28, 2005 any evidence of advertising expenditures after that date should be excluded.

From 1998 – 2003, Plaintiff claimed tax deductions of varying amounts. However, Plaintiff has still offered no proof of where that claimed advertising deduction was spent. Even examining the corresponding P&L statements fails to shed light as to where the claimed deduction was spent on advertising. The P&L Statements list a subcategory of “Marketing Expense – Other” where the bulk of the expense is listed. Plaintiff, yet again, has failed to provide evidence of how they spent “hundreds of thousands of dollars advertising the name Washington Talent Agency”. Plaintiff does offer one unsworn letter from the Washingtonian Magazine Classifieds Advertising Manager that “Washington Talent Agency has been advertising with us since March 2000 and has run ad every month during that time.”(A310). But again, Plaintiff does not provide copies of any of the advertisements that have run in the Washingtonian, nor do they provide a single invoice for these ads.

Defendants were able to track down a 2005 copy of the Washingtonian Magazine at the public library (A142). The ad consists of 23 words of black text on a white background. The rate for the advertisement is $4.20 per word. (A143). Since Plaintiff has failed to provide copies of these advertisements, Defendant assumes that this is the same or very similar ad that allegedly ran each month. If that is the case, the annual cost was at most $1,159.20. However, as the court will note on the rate card, the magazine offers a “frequency discount” for advertisers with 12 consecutive insertions, so their actual annual cost was less. (A143).

Most telling is that Plaintiff has failed to offer the Washingtonian advertisement or any other proof of where these advertising deductions were actually spent. Additionally, Plaintiff refuses or is unable to explain how their advertising efforts were effective in causing the relevant group of consumers to associate the mark with the Plaintiff. The tax returns and P&L statements, without backup documentation, are not sufficient evidence of advertising expenditures. Plaintiff also submitted “advertising proofs” that allegedly were used to advertise Plaintiff’s services. (A156-172). Plaintiff again, is either unable or unwilling to state how and where those proofs were used to advertise Washington Talent Agency. Despite specific requests, plaintiff has failed to produce evidence of a single example of an advertisement that was actually published. The advertising proofs, without evidence of time and place of publication, are of little evidentiary value. Even though Plaintiff’s President states that the “advertising copy submitted to the Court are actual ads that ran in various print media over the years.” (A275). The affidavit does not identify the media in which the ads ran or the dates of the alleged publications.

Even if this Court were to conclude that Plaintiff’s advertising expenditures were significant, Plaintiff has failed to show that its expenditures were effective in causing consumers in the region to associate the trade name “Washington Talent Agency” with Plaintiff’s business. This Court, in line with other jurisdictions, has ruled that “large advertising or promotional expenditures do not contribute to establish secondary meaning unless the party explains how its efforts were effective in causing the relevant group of consumers to associate the mark with itself.” Dick’s Sporting Goods, Inc. v. Dick’s Clothing & Sporting Goods, Inc. , 1999 U.S. App. LEXIS 19942, No. 98-1653, 1999 WL 639165, at *7 (4th Cir. Aug. 20, 1999) citing FM 103.1, Inc. v. Universal Broadcasting of New York, Inc., et al. , 929 F. Supp. 187, 196 (D.N.J. 1996) (Large advertising or promotional expenditures do not contribute to establish a secondary meaning unless the party explains how its efforts were effective in causing the relevant group of consumers to associate the mark with itself.). “While evidence of advertising may be relevant,” the mere expenditure of money is not, in itself, determinative of the actual result in buyers’ minds.” 2 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION, § 15:51 (4th ed. 1997). See also, Spraying Sys. Co. v. Delavan, Inc ., 975 F.2d 387, 393 (7th Cir. 1992) (holding that “evidence of sales, advertising and use” of a mark did not, alone, prove that a mark “indicates a single source to the relevant consuming public”); cf. DuPont Cellophane Co. v. Waxed Prods. Co ., 85 F.2d 75, 81 (2d Cir. 1936) (“It, therefore, makes no difference what efforts or money the [party] . . . expended in order to persuade the public that [its mark] means an article of [that party’s] manufacture. So far as it did not succeed in actually converting the world to its gospel it can have no relief.”); Aloe Creme Labs., Inc. v. Milsan, Inc. , 423 F.2d 845, 850 (5th Cir. 1970) (“it must be remembered that the question is not the extent of the promotional efforts, but their effectiveness in altering the meaning of [the trademark] to the consuming public.”).

Plaintiff has failed to offer any evidence, other than claimed deductions, of the extent of their advertising efforts. They have either refused or are unable to offer evidence that shows the effectiveness of their alleged advertising and where and when the money was spent on advertising. The mere expenditure of money alone is insufficient to support secondary meaning.

Consumer Studies
Plaintiff would only acquire secondary meaning if a substantial portion of the consuming public were to associate the term with a particular business. Perini Corp ., 915 F.2d at 125.
Though no single factor is determinative, “survey evidence is generally thought to be the most direct and persuasive way of establishing secondary meaning.” U.S. Search , 300 F.3d at 526 n.13 (citations omitted).

Plaintiff has offered no consumer surveys. However, as discussed at length above, Plaintiff’s unsworn letters and tardy affidavits do little, if anything to prove secondary meaning.

Unsolicited Media Coverage of the Product
Plaintiff has submitted a June 2005 Gazette article in an attempt to offer evidence of unsolicited media coverage.(A139). Since the article was published in June 2005 after Defendant had already entered the market in January 28, 2005 the article should not be considered when determining secondary meaning. See, Perini Corp., 915 F.2d at 125-126 (citations omitted). While Plaintiff would like this Court to review this article as support to their claim that they have “provided services to highly celebrated individuals” (Brief of Appellant at page 25), the article is about a band named Onyx not about Plaintiff. Plaintiff merely manages the band. The band performed for the celebrities, not Plaintiff.

Plaintiff’s only admissible evidence of unsolicited media coverage is a 1983 High School newspaper article that mentions Washington Talent Agency. The fact that Plaintiff was mentioned in a High School newspaper in 1983 is not sufficient evidence to establish that a substantial portion of the consuming public associates “Washington Talent Agency” with Plaintiff’s particular business. Plaintiff complains that finding evidence of unsolicited media coverage prior to January 1, 2005 (less than a year and a half prior to the Complaint being filed) is overly burdensome. Plaintiff bears the burden of proving that they have a protectable mark to the exclusion of all others. Defendants find it hard to believe that in the 41 years of the use of the name Washington Talent Agency that Plaintiff, if they were in fact mentioned in any media coverage, didn’t save a copy. The evidence shows that for the twenty-two years prior to Defendants’ entry into the market, the media in Washington, D.C. area contained not even a single reference to “Washington Talent Agency” as a source for entertainment talent.

Length and exclusivity
While Plaintiff has used the name for a considerable length of time, this court has already held that “length of time alone is insufficient to establish secondary meaning.” U.S. Search , 300 F.3d at 526 note 12.

Perini Corp. v. Perini Const., Inc.
Plaintiff relies heavily upon Perini Corp. v. Perini Const., Inc. , 915 F.2d 121 (4th Cir. 1990) to support their argument that they have achieved secondary meaning as discussed above. The Perini court set forth the following relevant factors to determine whether secondary meaning exists in the eyes of the consuming public: “(1) advertising expenditures; (2) consumer studies linking the mark to a source; (3) sales success; (4) unsolicited media coverage of the product; (5) attempts to plagiarize the mark; and (6) the length and exclusivity of the mark’s use.” U.S. Search , 300 F.3d at 525 quoting Perini Corp ., 915 F.2d at 125.

Plaintiff argues that the above factors were not relied on by the Perini court and as such this court should not rely on those factors in the present case. However, Plaintiff’s reliance on Perini is distinguishable. While the court in Perini did say that some of the above factors were not considered, the court found the following substantial evidence to determine that the Perini Corporation name had acquired secondary meaning:

Perini Corporation had attained national prominence based on their construction achievement, their national rankings within the industry and the free national publicity that they enjoyed. Plaintiff cannot make that same argument. Even relying on Perini factors, Plaintiff fails to meet their burden of showing that the term “Washington Talent Agency” has acquired secondary meaning. The record is devoid of any evidence of any events Plaintiff has been hired to perform. Plaintiff offers no evidence of peer rankings. Plaintiff has offered no evidence of industry awards or recognition. Plaintiff offers no evidence that they headline or sponsor any large events in the area. Unlike Perini Corporation, Plaintiff’s sales success was not publicized and ranked in the industry (in fact sales success remains a closely guarded secret since Plaintiff’s sales figures remain under seal). And, unlike Perini, the Defendant testified that he had not heard of Plaintiff prior to this dispute. (A29). Even when looking beyond the Perini factors, the evidence in the record even when viewed in the light most favorable to the Plaintiff fails to establish that Plaintiff has achieved secondary meaning in the eyes of a substantial number of the consuming public.

Plaintiff is attempting to claim a trademark on a geographically descriptive term, to the exclusion of all others , based on seven letters and/or affidavits, several years of tax returns and unsubstantiated tax deductions for advertising.

Miscellaneous
Plaintiff attaches copies of letterhead, copies of contracts, mail, agency licenses and a chamber of commerce certificate. (A144-155). While these exemplars prove that Plaintiff is in business, they carry no weight to establish that Plaintiff has achieved secondary meaning in the eyes of the public.

U.S. Patent and Trademark Office Filing
Plaintiff would like this Court to consider the decision of one trademark examining attorney as evidence of secondary meaning and that the decision of the trademark attorney to publish the mark for opposition should be viewed as that of a reasonable juror. This argument fails for two reasons.

First, the application for a trademark is not adversarial until the mark is published for opposition. Thus the evidence reviewed by the USPTO is one sided and unopposed. Plaintiff took advantage of that procedure and made mischaracterizations as to the exclusivity of their use for the five years prior to application. As soon as Defendant was able, they filed an opposition alleging, inter alia, that Plaintiff fraudulently mischaracterized that they had continuous and exclusive use of the mark for the five years prior to filing the application. That statement to the USPTO was false since Defendant began using the mark before Plaintiff made application and adverse use by a competitor such as Defendant during the required five year period precludes registration under the length of use clause. See Charles Dennehy & Co. v Robertson, Sanderson , & Co., 32 App DC 355 (1909) (Registration under length of use clause would be denied where evidence showed that applicant had not had exclusive use of mark for requisite period.); In re Hoff , 33 App DC 233 (1909) (To authorize registration of nontechnical trademark, applicant had to have had sole use of mark, to exclusion of all others, for required statutory period.); C. A. Gambrill Mfg. Co. v Waggoner-Gates Milling Co. , 38 App DC 532 (1912) (Opposition to registration under length of use clause precluded registration where opposer showed that applicant did not possess exclusive use of mark for required period.); E. McIlhenny’s Son v B. F. Trappey & Sons , 51 App DC 273, 278 F 582 (1922); Ostermoor & Co. v International Bedding Co. 57 App DC 114, 18 F2d 156 (1927) (Adverse use within single state during required period was sufficient to prevent registration). Additionally, the USPTO has held that the five-year proviso of the Lanham Act does not imply that evidence that a notation which is inherently incapable of functioning as trademark by indicating origin can be made a legal and registrable trademark by proving continuous use for 5 years. See Schulmerich Electronics, Inc. v J. C. Deagan, Inc , 40 CCPA 857, 202 F2d 772, 97 USPQ 141 (1953). It is Defendants contention that if this false statement had been exposed to the examining attorney, the mark would have never been published.
Second, the Forth Circuit has already rejected Plaintiff’s arguments that the USPTO findings should be considered. In America Online, Inc. v. AT&T Corp ., 243 F.3d 812, 816 (4th Cir. 2001) this Court considered the question of whether, in a federal trademark infringement action, a district court should afford Chevron-type deference to the USPTO’s determination that a given mark is registrable. The court rejected the application of Chevron deference stating that “Congress left no doubt that the PTO’s decisions regarding registrations fall under the supervision of federal courts” Id. at 817; See also, Retail Servs. v. Freebies Publ’g , 364 F.3d 535, 543 (4th Cir. 2004).

The Fourth Circuit has refused to consider the views of the USPTO in a trademark infringement action, and this case should be no different. We do not know under what basis the examiner published the mark for opposition. But it is undisputed that the mark has been opposed and Defendant will mount a vigorous defense of their use of the mark.
In this case, Plaintiff still has the burden to show that the mark has become distinctive by proving that the mark has acquired secondary meaning within the minds of a significant portion of the consuming public. And as discussed, ad nauseam above, using the Perini factors, Plaintiff has failed.

III. The District Court properly denied Plaintiff’s Motion for Summary Judgment.

To establish a prima facie case under the Anticybersquatting Consumer Protection Act (“ACPA”) 15 U.S.C. § 1125(d), Plaintiff must first prove that “it has a valid trademark entitled to protection.” Maruti.com v. Maruti Udyog Ltd ., 447 F. Supp. 2d 494, 497 (D. Md. 2006) citing DaimlerChrysler v. The Net, Inc ., 388 F.3d 201, 204 (6th Cir. 2004).

In this case, the first element for a claim under the ACPA fails. Plaintiff based its motion for summary judgment under the assumption it had a protected mark. As argued above, Plaintiff does not have a “a valid trademark entitled to protection.” Therefore, the Plaintiff has failed to meet the prerequisite for bringing a claim under the ACPA. Maruti.com , 447 F. Supp. 2d at 497-498; See also, Retail Servs. , 364 F.3d at 549 (“a prerequisite for bringing a claim under the ACPA is establishing the existence of a valid trademark and ownership of that mark.”).

Assuming arguendo, that the court finds that Plaintiff’s term, “Washington Talent Agency” is entitled to protection, a claim under the ACPA would still fail as Plaintiff has not established that Defendants’ had registered the domain name “washingtontalentagency.com” with a bad faith attempt to profit.

The ACPA allows a court to view the totality of the circumstances in making the bad faith determination. 15 U.S.C. § 1125(d)(1)(B)(i), see Virtual Works, Inc. v. Volkswagen of Am., Inc., 238 F.3d 264, 270 (4th Cir. 2001) . In this case Plaintiff offers no evidence either direct or circumstantial that Defendants acted with bad faith. Plaintiff’s allegation of bad faith is based upon their unsubstantiated belief that Defendants had knowledge that Plaintiff existed prior to the registration of the domain name. (A106).

When asked in interrogatories to provide facts supporting Plaintiff’s allegation of bad faith, Plaintiff answered:

Defendant, Albrecht Entertainment Service, Inc., trading as USA Talent Agency, purchased the website www.washingtontalentagency.com as well as three other regional websites based on the recommendation of their web developer. (A80, A42-43).

Plaintiff has failed to offer any evidence to the contrary. Plaintiff has not established Defendants’ bad faith attempt to profit from using the term “Washington Talent Agency” by a preponderance of the evidence. Harrods Ltd. v. Sixty Internet Domain Names , 302 F.3d 214, 225-27 (4th Cir. 2002) (preponderance of evidence standard applies in ACPA claim).
Since “Washington Talent Agency” is not a protectable term and Plaintiff has failed to prove by a preponderance of the evidence that Defendant acted with bad faith, Plaintiff’s motion for summary judgment should be denied.

IV. Attorney’s Fees

Pursuant to Local Rule 46(e), Defendant is claiming attorney’s fees. The Lanham Act permits an award of reasonable attorneys’ fees to the prevailing party in “exceptional cases.” 15 U.S.C.A. § 1117(a). Under this standard, a prevailing defendant may recover fees based on “a showing of something less than bad faith.” Ale House Mgmt., Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 144 (4th Cir. 2000) (internal quotation marks omitted). Relevant considerations include “economic coercion, groundless arguments, and failure to cite controlling law.” Id. (internal quotation marks & alteration omitted). In assessing a plaintiff’s conduct when the defendant prevails, the court must focus on the plaintiff’s “litigation conduct or pre-litigation assertion of rights.” Retail Services, Inc. , 364 F.3d 535 at 550-551.

In this case, Plaintiff filed suit claiming that Defendant’s infringed upon their mark. The mark in question is geographically descriptive and thus un-protectable. During the initial discovery requests, Plaintiff was specifically asked to produce any evidence that would indicate that the term “Washington talent agency” was protectable and or had achieved secondary meaning. Plaintiff was unwilling or unable to provide any evidence that would support a claim of trademark infringement. Plaintiff instead hid behind blanket objections and alleged privilege. (A175-181). Under an impending motion to compel discovery (A3 docket number 23) Plaintiff filed a supplemental answer to Defendants’ interrogatories (A129). Again, after stating blanket objections and claimed privileges again, Plaintiff provided no recognized basis for claiming their use of the words “Washington talent agency” had achieved secondary meaning (A132, No. 12). Plaintiff provided minimal evidence during the motion for summary judgment and was given a second chance to produce this evidence that they failed to produce in discovery. In support of their motion to reconsider, Plaintiff filed unsworn letters and/or tardy affidavits requiring unnecessary responses by Defendants. Plaintiff’s tax returns and profit and loss statements show that they have deep pockets and can endure lengthy litigation. (A311-346). Defendant, on the other hand, is a sole proprietor working out of his house. (A37). Such tactics and complete failure to produce any supporting evidence strongly suggests that this litigation is an attempt to coerce Defendant into giving up the domain name. (A311-346).

Further supporting economic coercion in this case is the groundless arguments propounded by Plaintiff in this appeal. This Court has consistently held that unsworn letters are not considered in a motion for summary judgment. Controlling law in this jurisdiction also makes clear that this court does not defer to the USPTO in trademark infringement cases.
Plaintiff has no greater right to “Washington talent agency” than any other person. The record in this case and the actions of Plaintiff show economic coercion and groundless arguments. This conduct is clearly within the realm for awarding defendant’s fees as contemplated by the statute and controlling law. As such Defendant is entitled to attorney’s fees in the amount of $22,946.40 and will be filing that request by separate motion to be supported by a detailed itemization and affidavit.

CONCLUSION

For the foregoing reasons, Appellees respectfully requests that this Court affirm the Judgment Order of the District Court and award attorney’s fees to Defendant.

REQUEST FOR ORAL ARGUMENT

Defendants-Appellees request oral argument. This case presents legal questions involving the sufficiency of the evidence required to overcome summary judgment and the weight that should be accorded to evidence presented to support secondary meaning.

Respectfully Submitted,

William D. Day
Attorney for Appellees

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When is it not a good idea to buy your daughter a new car?

Wed, 12 Jul 2017 19:30:00 GMT

Maryland Appeals Court affirms trial won by Attorney Day

As a small business owner, you may get in the position when you are forced to collect on a judgment. Unfortunately, part of that effort is to find and recover assets that may have been purposefully hidden. A Maryland appeals court recently affirmed a trial verdict obtained by Maryland attorney William Day finding that the transfer of a vehicle to avoid a creditor was a fraudulent conveyance, rejecting the debtor’s claim that the vehicle was compensation to his daughter for services performed.

The Facts of the case

In this case the debtor owed Attorney William Day’s client over $50,000 and was taking great pains not to pay one dime. Bankruptcy was not an option for the debtor since the debt was ruled non-dischargeable. So the debtor started to move his assets around and use his single member Limited Liability Company (SMLLC) as a shield and as his personal ATM.

To avoid paying any of the $50,000 judgment and to prevent seizer of his assets, the Debtor purchased, in full, a vehicle using a check from his SMLLC. Two days after the purchase of the vehicle, the debtor’s daughter formed an LLC for the stated purpose of “property management and improvement, investing and consulting.” Two days after the daughter’s company was formed, the vehicle was titled in the name of the daughter’s LLC.

The debtor claimed that the vehicle was payment for accounting services his daughter personally provided to the SMLLC. However, the daughter already had 5 vehicles at her disposal and the debtor maintained possession and use of this new vehicle. Notably, the vehicle was never titled to the debtor’s LLC and was never titled directly to the daughter.

The chain of title went from the seller to the daughter’s LLC hiding the fact that the car was purchased by the debtor.

Attorney Day filed suit on behalf of the creditor against the debtor and the daughter’s LLC to have the conveyance set aside.

When is a transfer of property fraudulent?

Maryland Commercial Law Article § 15-204 provides that every conveyance made and every obligation incurred by a person who is or will be rendered insolvent by it is fraudulent as to creditors without regard to his actual intent, if the conveyance is made or the obligation is incurred without fair consideration. Accordingly, the elements of a fraudulent conveyance under this statute are:
1) a conveyance;
2) the debtor either already is insolvent, or will be made insolvent by this conveyance;
3) the existence of a debtor-creditor relationship; and
4) lack of fair consideration.

The debtor and his daughter did not dispute that a conveyance occurred, nor that the debtor was insolvent at the time of the transfer, but argued that the other elements are not satisfied.

The Debtor-Creditor relationship

The Maryland Court of Special Appeals rejected the debtor’s argument that that the requisite debtor-creditor relationship did not exist as to this transaction. The debtor argued that the purchaser and transferor of the car was the debtors SMLLC and not the debtor personally. The court ignored the existence of the SMLLC without having to pierce the corporate veil. The court noted that debtor used his SMLLC’s operating account to pay personal expenses ($2,000 for a new suit, $10,000 for his daughter’s wedding, vacation timeshare and other vacations). The court acknowledged debtor’s testimony on this issue: “the only choice that I had at that time was to use my operating account . . . as an ATM account and let the accountant sort it out what’s a draw and what is a business expense later.”

The trial court found, and the Appeals Court affirmed, that the debtor and his SMLLC were so closely related to effectively be considered the same. Accordingly, the trial court was not clearly erroneous in determining that debtor, not his SMLLC, conveyed the car to his daughters LLC.

Fair Consideration

Property transferred to satisfy an antecedent debt, as the debtor contends here, may constitute fair consideration. The trial court acknowledged this, noting that “[h]ad the car simply been transferred to [daughters LLC] on behalf of [daughter] with it being used by [daughters LLC], that would have been fair consideration for services rendered.”
In finding a lack of fair consideration, however, the trial court found that debtor’s daughter “hadn’t really gotten anything for her services.” The appeals court agreed with the trial court’s opinion because debtor, not daughter’s LLC, exercised control over the vehicle. The trial court described the transaction in this way:

The appeals court stated that the trial court’s finding was supported by extensive evidence in the record. For example, the vehicle remained in Rockville with debtor. The debtor used the vehicle the majority of the time and paid for its gas and maintenance.

The trial court also did not find debtor’s daughter’s testimony credible. Attorney Day called the daughter as an adverse witness and started questioning her about the alleged work she had done for her father’s LLC. She testified that she had provided accounting services and other general book keeping for over five years without any compensation. She stated that the vehicle was compensation for all of the unpaid work she had done. Upon further questioning she admitted that she did not report the value of car on her tax return and did never received a IRS form 1099. She also admitted that she currently owned five other vehicles and let her father drive and possess the car because she didn’t need it. When asked by attorney Day if she had reported the value of the vehicle as income she said, “no”. When asked why, she testified that an accountant had advised her that she need not report the vehicle as income for tax purposes.

Accordingly, appeals court held that the trial court was not clearly erroneous in finding that the transfer of the car lacked fair consideration.

In the end, the vehicle was turned-over to the creditor to sell. But all is not lost for our debtor…he now drives one of the five vehicles that is owned by his daughter. So, when is it a bad idea to buy your daughter a new car? When you purchase it for the sole purpose of avoiding a creditor.

William Day Law Group

Attorney William Day and the William Day Law Group focus on helping small businesses succeed. They handle all types of commercial litigation, commercial landlord disputes, commercial landlord/tenant as well as outside general counsel services for small businesses. Contact the William Day Law Group if you would like more information on how we can represent your interests.
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If you would like more information about this topic, please contact William Day at 301-605-1722 or email at info@williamdaylaw.com . Past results afford no guarantee of future results. Every case is different and must be judged on its own merits.

The post When is it not a good idea to buy your daughter a new car? appeared first on William Day Law Group .

Judge Finds Tenant’s Evidence “Suspect” After Cross Examination, $85,636 Judgment for Commercial Landlord

Wed, 28 Jun 2017 18:15:00 GMT

I have included a picture of the “suspect” evidence…you be the judge.

What should have been a run-of-the-mill commercial lease dispute over a failure to pay rent turned into a two-day bench trial when the tenant produced an alternate lease and alleged deposit slips showing that all rent was paid.

I went in knowing that the stakes were high–Over $85,000 in back rent had already accumulated because of multiple bankruptcies filed by this tenant and any further delays would cost my client thousands of dollars a month.

Landlord-Tenant trials in Maryland typically do not allow for discovery so attorneys will only know what their evidence is when the trial starts. That is usually not a problem since most trials have the landlord produce a copy of the lease and the ledger showing payment records.

I was confident when I rested my case. Our lease was in evidence, our ledger and all of the backup to prove the common area maintenance and utility charges was also admitted into evidence.

The Tenant’s Case
When the tenant took the stand she produced a commercial lease that was $1,000 less per month than the Landlord’s lease and then she produced deposit slips allegedly showing that she made payments of over $26,000 that the landlord had not credited. Based on the tenant’s evidence, the landlord owed the tenant money.

I wasn’t fazed by the lease the tenant produced but the deposit slips took me completely by surprise. Here she was producing photo copies of bank deposit slips showing payments made and all I had was a ledger showing that we did not record a payment. I didn’t believe my client would make that mistake.

I was given a copy of the deposit slips to review before it was admitted into evidence. I had to think fast if I was going to come up with a valid objection. I noticed immediately that the copy of the deposit slips that she had given me had her handwriting on every single image in blue ink. That meant that she handwrote “March 2016, February 2016”, etc. on all the photo copies obscuring the bank’s computer markings showing the date and amount that was deposited. I also noticed that the bank’s markings were backward making it more difficult to verify her claim. I immediately jumped up and objected that these copies were not the best evidence since there was self-serving writing on them that obscured the bank’s information and that the bank’s printout was backwards. Unfortunately, the judge allowed the documents in so I was forced to fight this on cross examination and attack the tenant’s credibility.

Cross Examination
I went immediately to the deposit slips. I asked the tenant where the originals were located. She said she must have lost them. When I asked her how she made the copies, she couldn’t answer. I asked her why she didn’t copy the backs of the deposit slips that showed the banks record of the transaction. Again, “I don’t know”. Finally, I showed her a deposit slip that she claimed was made on January 2016 in the amount of $5,000. I asked her to look at it closely and try to turn the numbers around in her mind. I asked her, “If you were to look at this in a mirror, wouldn’t it show that the bank says that this deposit was made in June of 2016.” (6/**/16).”

One of the deposit slips deemed “suspect”

I looked at the judge and he raised his eyebrow. I was confident that I had successfully raised questions of credibility of the witness and the documents.
After the conclusion of my cross-examination the defense rested and the judge took a recess before he issued his findings. The judge took all of the documents with him back to chambers. I was hoping that he would find his way to a mirror to look at the deposit slips more closely.

The Verdict
When the judge returned to the bench he found in favor of the landlord and specifically said, “Court disallows receipts tendered as they are suspect and therefore does not credit any payment by tenant.”

While I may never know if the judge used a mirror to examine the deposit slips, I do know that it was the correct determination. When I held the slip up to a mirror, I could clearly see that the handwriting did not match the banks computer printout.

Let me know if you agree.

Attorney William Day and the William Day Law Group handle all types of commercial litigation, commercial landlord disputes, commercial landlord tenant as well as outside general counsel services for small businesses. Contact the William Day Law Group if you would like more information on how we can represent your interests.

If you would like more information about this topic, please contact William Day at 301-605-1722 or email at info@williamdaylaw.com. Past results afford no guarantee of future results. Every case is different and must be judged on its own merits.

The post Judge Finds Tenant’s Evidence “Suspect” After Cross Examination, $85,636 Judgment for Commercial Landlord appeared first on William Day Law Group .

JUDGE TOSSES $50,000 SLIP-AND-FALL CASE AFTER ATTORNEY WILIAM DAY ARGUES THAT COMMERCIAL LANDLORD WAS NOT LIABLE FOR TENANT’S GUESTS

Fri, 02 Jun 2017 19:06:00 GMT

Recently, Judge Clark of the D.C. Superior Court agreed with Washington, D.C. attorney William Day that a commercial landlord was not liable for any injury suffered by the guest of its tenant. Day was defending a commercial landlord who was sued by the guest of the landlord’s tenant. The lawsuit claimed $50,000 in damages. The guest alleged that he slipped on a wet substance in a D.C. restaurant and fell down an entire flight of stairs suffering “ankle, arm and back pain” as well as “mental injuries”. Notwithstanding the questionable injuries it was clear to attorney Day that the landlord was not liable:

After reviewing Attorney Day’s motion for summary judgment, the Judge ruled in favor of the commercial landlord and entered a judgement in favor of Day’s client.

“My client was not willing to just offer up some money to make this case go away,” said Day “After I explained the options and risks, the client wanted to fight what he viewed as someone hoping for a quick payoff.”

Attorney William Day and the William Day Law Group handle all types of commercial litigation, commercial landlord disputes, commercial landlord/tenant as well as outside general counsel services for small businesses . Contact the William Day Law Group if you would like more information on how we can represent your interests.

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The post JUDGE TOSSES $50,000 SLIP-AND-FALL CASE AFTER ATTORNEY WILIAM DAY ARGUES THAT COMMERCIAL LANDLORD WAS NOT LIABLE FOR TENANT’S GUESTS appeared first on William Day Law Group .

“The Krusty Krab” involved in trademark infringement lawsuit

Tue, 16 Feb 2016 16:02:00 GMT

Viacom, Inc. has filed a lawsuit against IJR Capital Investments in Houston, Texas for planning to operate a restaurant called “The Krusty Krab.” According to the complaint, IJR has been promoting the restaurant on social media and has filed an “intent to use” the mark with the U.S. Patent and Trademark Office. Viacom claims that it has capitalized on the popularity of the Krusty Krab over the years by licensing for manufacture and sale toys such as the Krusty Krab playset, costumes, t-shirts books and video games. The complaint claims (and I am quoting):

“The Krusty Krab is owned by Eugene H. Krabs, a prominent and recurring character in the SpongeBob universe. SpongeBob SquarePants works at the Krusty Krab as a fry cook, but he also performs a myriad of other duties, and once stated that his official title is Vice Assistant General Manager in charge of certain things. The Krusty Krab is the scene of many comical exchanges between SpongeBob and his co-worker, Squidward Tentacles. SpongeBob loves his job and considers Squidward a close friend; Squidward hates his job and does not like SpongeBob.”

“Krusty Krab’s chief competitor is the Chum Bucket, which is owned by Sheldon J. Plankton, Mr. Krabs worst enemy. The Krusty Krab maintains an advantage over the Chum Bucket based upon the popularity of its Krabby Patty burger.”

The lawsuit alleges unfair competition, trademark infringement, and dilution. Viacom claims that the identical appearance and sound of “Krusty Krab” would lead to a likelihood of confusion by the consuming public. Viacom alleges that its extensive use of “Krusty Krab” through a variety of products and the term and its widely-held association with the “well-known fictional fast food restaurant” in Spongebob Squarepants enables Viacom to essentially have first dibs at operating a “Krusty Krab” themed restaurant. Interestingly, Viacom has not filed a trademark registration for “Krusty Krab” Is this another diabolical attempt by Plankton to steal the secret formula? Will we soon be able to taste a “krabby patty”. Stay tuned for more posts as I follow this case.

The post “The Krusty Krab” involved in trademark infringement lawsuit appeared first on William Day Law Group .

What are “common law” trademark rights?

Thu, 11 Feb 2016 15:15:00 GMT

What are “common law” trademark rights? Federal registration is not required to establish rights in a trademark. Common law rights arise from actual use of a mark and may allow the common law user to successfully challenge a registration or application.

The post What are “common law” trademark rights? appeared first on William Day Law Group .

If a business has applied for a trademark but it is not yet approved, should it us the “TM” whenever it uses the trademark?

Wed, 10 Feb 2016 15:24:00 GMT

Short answer is yes.

If the business claims rights to use a mark, they may use the “TM” (trademark) or “SM” (service mark) designation to alert the public to their claim of a “common-law” mark. No registration is necessary to use a “TM” or “SM” symbol and they may continue to use these symbols even if the USPTO refuses to register their mark. Those symbols put people on notice that the business claims rights in the mark, although common law doesn’t give them all the rights and benefits of federal registration.

The business may only use the federal registration symbol “®” after the USPTO actually registers a mark, not while an application is pending.

The post If a business has applied for a trademark but it is not yet approved, should it us the “TM” whenever it uses the trademark? appeared first on William Day Law Group .

Do I need a Maryland Will?

Tue, 02 Feb 2016 15:36:00 GMT

What Is A Maryland Will ?

A will is a written document directing the disposition of a person’s assets after death.
What are the Requirements for A Valid Maryland Will
In Maryland, a will must be signed by the person making the will (testator/testatrix) and Attested and signed by two credible witnesses in the presence of the person making the will.

Why Should I Make a Maryland Will?

A Maryland will is one of the most important of all legal documents. It is the legal declaration of a person’s intentions and desires that he directs to be carried out after his death. By making a Maryland Will you can specify how you want your property distributed after your death; you can name a personal representative who has the responsibility to collect assets, pay bills and distribute your estate according to the terms of your will; you can make charitable bequests; and you can nominate someone in whom you have confidence to be a guardian of your minor children. Without a Maryland Will, the intestate laws of the State of Maryland direct the order of priority for those individuals to serve as personal representative of the estate; what heirs are entitled to receive the assets of the estate; and in some instances the Orphans’ Court shall make the appointment of a guardian for your minor children.

Can I change my Maryland Will?

A Maryland Will can be changed at any time before death if a person is competent. The changes should not be made by alteration to the existing Maryland Will but by a document called a “codicil”. The codicil must be executed with the same formalities as a will.

When Should I Change my Maryland Will?

A Maryland will should be reviewed whenever a significant change in personal or financial circumstances occurs. For example, a change in marital status warrants a review of the will. It is also a good idea to review your Will, 401(k) and life insurance beneficiary designations every year.

The Validity of A Will Executed In Another State

If you have a will prepared outside of Maryland and then move into Maryland, it is valid if it is executed in accordance with the laws of the state in which it was prepared. However, if you move to another state, check with the Probate Division of your new jurisdiction to determine if your will is valid. Laws vary in different states.

Wills Are Only Effective When Administering Probate Assets

A will must be admitted to probate when a person dies owning property in his or her name alone or as tenants in common. Tenancy in common property is subject to the will of each of the owners to the extent of that owner’s interest and does not pass automatically to the survivor.

Property owned by husband and wife, either jointly or as tenancy by the entirety, or property held by any other persons as joint tenants “with right of survivorship” is not subject to the provisions of the will of the first joint owner to die. Such joint property passes automatically to the surviving joint owner or owners.

What If I do not have a Maryland Will?

If there is no will, the intestate laws of the State of Maryland, which are subject to change from time to time, will determine the distribution of probate assets. Distribution is determined by the relationship of the surviving heirs of the decedent. If a spouse and minor child/children survive, the spouse receives only one-half of the probate assets and the child/children receive the other one-half.

If there are no surviving minor children but other surviving children or parents, the spouse receives the first $15,000.00 plus one-half of the balance of the estate; the remainder passes to the decedent’s children, if any, otherwise to his or her parents. If a spouse but no children or parents survive, the spouse receives the entire probate estate.

If children but no spouse survive, the children will receive everything, If no relatives (brothers, sisters, nieces, nephews, cousins, etc.) survive, the assets will be distributed to the Board of Education in the jurisdiction where the estate was administered.

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Maryland Estate Planning: legal terms and phrases

Fri, 29 Jan 2016 15:34:00 GMT

Estate planning can be a complicated process, made more so by the many terms not used in everyday interactions. The following definitions will help you understand legal terms and phrases which are relevant to wills, trusts, probate and the estate planning process.

BENEFICIARY : The person for whose benefit a trust is created.

CODICIL : A document reflecting an addition, deletion, or change to a will.

CORPUS/PRINCIPAL : The principal or capital of an estate, as distinguished from the income.

DEVISE : A gift or bequest of an interest in real estate.

DISCLAIMER : A denial or renunciation of an interest in an estate or trust.

ESTATE : The property owned by a decedent at the time of death.

GRANTOR/SETTLOR : A person who establishes a trust.

GUARDIAN : An individual or a trust institution appointed by a court to care for the property or the person (or both) of a minor or an incompetent person.

IRREVOCABLE TRUST : A trust which by its terms cannot be revoked or modified by the grantor.

ISSUE : All of one’s lineal descendants such as one’s children and grandchildren.

JOINT TENANCY : The holding of property by two or more persons in such a manner that, upon the death of one joint owner, the survivor or survivors take the entire property; to be distinguished from tenancy in common.

LIVING WILL/ADVANCED MEDICAL DIRECTIVE : A document which allows a person to state in advance his or her wishes regarding the use or removal of life-sustaining or death-delaying procedures in the event of a terminal illness or injury.

PER STIRPES VS. PER CAPITA : These are terms used in the determination of the distribution of property from an estate or trust. As an example, a distribution to persons on a per stirpes basis would be “I give my estate in equal shares to my issue, per stirpes where if there are two children A and B and where B is deceased but survived by his own children C and D, then A receives one-half (1/2) of the estate and C and D (the sons of deceased son B) take a one fourth (1/4) share of the estate. If instead using the facts in the preceding example “I give my estate in equal shares to my issue, per capita, then A, C and D would each take a one-third (1/3) share of the estate.

PERSONAL REPRESENTATIVE : An individual or a trust institution nominated in a will and appointed by a court to administer and settle the estate of a decedent. In some states referred to as an Executor/Executrix.

POWER OF ATTORNEY : A document authorizing the person named therein to act as his agent, called attorney in fact, for the person signing the document. If the authority granted in the power of attorney survives the disability of the principal, the attorney in fact has a durable power of attorney. If the authority granted in the power of attorney commences in the future only upon the occurrence of a specified event or contingency, the power of attorney is known as a springing power.

PROBATE : The process of administering a decedent’s estate, which steps include, among others matters, filing the decedent’s will, if any, with the court for authentication, the appointment of the personal representative to administer the estate, collection of estate assets, the settlement and payment of creditor claims and taxes, the care and management of estate assets, and making distributions to heirs.

REVOCABLE TRUST : A trust which may be terminated by the grantor at any time during his or her lifetime. To be distinguished from an irrevocable trust.

TENANCY IN COMMON : The holding of property by two or more persons in such a manner that each has an undivided interest which, upon his or her death, passes as such to his or her heirs and not to the surviving co-owner; to be distinguished from joint tenancy.

TENANCY BY THE ENTIRETY : A form of joint tenancy solely by a husband and Wife in such a manner that, upon the death of one spouse, the surviving spouse takes the entire property.

TESTAMENTARY TRUST : A trust established under the terms of a will.

TESTATOR/TESTATRIX : A man/woman who has made and left a valid will.

TRUST : A fiduciary relationship in which one person (the trustee) is the holder of legal title to property given to him or her by the grantor during the grantor’s lifetime under a trust agreement or by virtue of a bequest made under will to be held and used for the benefit of another person (the beneficiary).

TRUSTEE : An individual or a trust institution which holds the legal title to property for the benefit of someone else.

WILL : A legal document executed in accordance with formalities prescribed by law under which a person directs how his or her estate is to be distributed after death; which also designates one or more persons to serve as personal representatives to administer the estate; and which may appoint one or more persons to serve as guardians for any minor children.

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Intellectual Property What is a copyright?

Tue, 26 Jan 2016 15:31:00 GMT

A copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic,websites and certain other intellectual works, both published and unpublished.

The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

A copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevant others from writing a description of their own or from making and using the machine. Copyrights are registered by the Library of Congress’ Copyright Office.

There are times when you may desire or need a combination of copyright, patent, and trademark protection for your work. You should consult an attorney to determine what forms of intellectual property protection are best suited to your needs.

For a free consultation for trademark and copyright please contact us .

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What are the benefits of federal trademark registration?

Wed, 20 Jan 2016 15:25:00 GMT

Owning a federal trademark registration on the Principal Register provides several advantages, including:

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