Legal Reference Blog by Renee C. Walsh, Esq.

Hi -

Company XYZ has requested that I transfer to them a domain that is similar to their company name (x-y-z.com) because it infringes on their "trademark". I have taken down the site to avoid any problem but they also request I transfer the domain to them (not clear who pays any transfer fees). I find no record of a registered trademark nor does their site indicate in any way that the name is a "trademark".

Question 1: does a common law trademark give give them such rights to a domain name I own because it happens to be the name of their company?

Thanks

Hi Tim:

I have researched caselaw on this issue and will have your response in the very near future. Suffice it to say at this time, that there is a new era of litigation on your issue. You will need to subscribe to the RSS-Feed to get the response, or check the site for updates.

Thank you for your inquiry.

Renee C. Walsh LawRef

I was advised to visit your site. I was at a hotel for 3 nights and became a midnight buffet for bed bugs. The manager is telling me that they do not have any evidence of bed bugs. I am going to contact an attorney over this. Do you have any advice? I have been taking pictures of the bites-which itch and burn terribly and are embarrassing and humiliating! My doctor has prescribed medication for this condition. Any help would be greatly appreciated.

Entering a lawsuit is a huge commitment that could last years. However, it is my understanding that bed bugs can be terrible with persons having to throw away furniture and even move!

You have claims for negligence and breach of contract. You have to weigh the trouble and expense of going forward with a lawsuit against the chances of success. You have the embarrassment, humiliation, aggravation, and medical issues on your side. Opposing counsel will argue that you contracted the bites elsewhere. In countering this defense, consider were you anywhere else at which you could have contracted the bites. You will likely need an expert who can testify that the bites were contracted at the hotel. You will likely have to appear for deposition and appear in court if the hotel persists in its defense.

If you would like my assistance, please do not hesitate to ask.

I too stayed at a hotel that I thought had a good reputation, but at 3:30 a.m. I was bitten all over my body by a brigade of bed bugs. These critters were on both beds, big and little ones. The desk clerk offered me another room. I told her she was out of her mind and that I wanted my money back. I called the health department who conducted an unscheduled inspection and found evidence of the bed bugs. I also call the corporate office who stated that I would be contacted in seven business days. No call. I went to the ER and was put on some medication that knock me out. I still wake up thinking that something is crawling on my body. I even get the feeling when I am awoke. I had to take something to help me sleep. I need advice.

I would give you the same advice as Gail. You should continue to seek medical attention to establish your damages.

Hello Tim. I have completed my article on trademark protection of domain names. It is on the main page of this site as well as under the caption copyright and trademark law. If you have further questions, please do not hesitate to so inquire.

Hello. I signed for a car loan so my son could purchase a car. Though the loan is in my name only, the car is registered in both our names. Due to family difficulties, I now want to sell the car. He has made all the payments so far, but $8000 is still due. He is refusing to let me sell car, saying BOTH of us have to agree. Do I have any recourse? I am willing to pursue this no matter what charges (if any) I may have to bring against him. Thank you....S.Poole

Depending on the age of the child, a parent may or may not need permission. Parents have authority over their minor children and their possessions. In Michigan, parents of minors are allowed to even have the minor's paycheck sent directly to the parent.

Just to be certain, call the Secretary of State telling them that you have a car which you will be selling and want to know if your minor son whose name is on the title, will need to sign the title or is merely your signature required.

My husband purchased a auto and the auto is financed just in his name only, and the title is in his name only. He has passed away.The finance company told me it would be a voluntary repo to give it back to them. I don't want the vehicle. What is my role in all this? We do not have any joint assets, as far as bank accounts goes.

Dear Debby:

I have written a response to your inquiry on the main page of the website as today's blog item.

Thank you for your contribution.

My mother recently passed away. She was 86 and, none-the-less, died unexpectedly. She was a long term renter (28 years) of an apartment. After she died, I was notified by her landlord that he had gotten her to sign a lease addendum (when she was in her early 80's) that was specifically a "death clause." The clause states that, upon her death, her estate is forced to pay an early lease termination fee of 3 months rent. This is in addition to maintaining the rent monthly up until the time the apartment is vacated of all her belongings. I have scoured the internet and have found nothing like this anywhere in any lease. To me this is excessive and, indeed, unconscionable. Do you find this type of fee as unreasonable as do I?

The fact pattern raises several issues. MCL 554.633 dedicates specific provisions that cannot be included in rental agreements. Specific to the question at issue is any prohibition excludes or discriminates against a person in violation of the Elliott-Larsen Civil Rights Act, MCL 37.2101 to 37.2804. According to the Elliott-Larsen Civil Rights Act, MCL 37.2502, a person engaging in a real estate transaction, or a real estate broker or salesman, shall not on the basis of age of a person, discriminate against a person in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction. There is a question here of discrimination based upon age.

In the fact pattern, when the tenant was in her 80s, after the lease had been signed years before, the landlord "got" her to sign an addendum to the lease that included a death clause. A death clause would be a legal provision in a lease if it were applied to all tenants, that is if it were included in the form lease used for all tenants. In this case, that did not happen. It was only after the tenant reached an upward age, that the landlord approached the tenant to execute the addendum. This tactic is discriminatory because it is not applied to all tenants, but only to the aged tenant.

Another issue that is evident is whether the agreement to execute such an addendum was the product of undue influence. The facts of the actual negotiations should be investigated and assessed. Were there any witnesses? A tenant of such an advanced age would likely feel that they had no opportunity to bargain. To present an addendum to a tenant of advanced age after they have been a resident for such a long term cold be considered by a fact finder to be such morally offensive pressure that the elderly person's consent to the bargain is ineffective. The innocent party elderly person would under the law be allowed to void the contract or rescind the obligation.

In addition to discrimination and undue influence is the question of whether the 80 year old had the legal capacity to contract. Persons with a mental capacity so deficient that they are incapable of understanding the nature and significance of the contract may disaffirm the contract.

Finally, there is the issue of whether the addendum was offered with adequate notice. In order to change the terms of a contract, the landlord must provide notice equivalent to the term of the period as for example, 30 days if the tenancy is month-to-month; 6 months in Michigan if the tenancy is from year to year.

The facts of the presented scenario do seem morally reprehensible. The personal representative of the mother should consider disputing the provision as being illegally obtained. Discussion could be put into writing that if the alleged debt is pursued, the response will be a request for attorney fees and expenses in defending the suit as well as a counterclaim for discrimination and undue influence. He should also keep an eye on the security deposit timelines as well as the fair debt collection practices acts discussed within this website under the appropriate categories (landlord tenant and consumer law respectively).
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On Feb 4th, I moved into a new apt..I was subleasing from the guy who had to move out. I prepaid the rent for the 6 months that I would be there. There is not any thing in the lease about prepaying rent and what happens if I am asked to move out. I have reciepts from the 6 different money orders that I gave him so we do have it written that I prepaid it. Early in March I got a noise complaint. Since then I have not had company I don't listen to loud music but I apparently have recieved another complaint. He can not give me times or dates when they occured just that there are "numerous complaints". I agreed that I would move out of the apt partly because I'm sick of getting blamed for these issues when I'm barely even there. What happens to the money that I paid? If I had not paid the rent up front and he evicted me I would not owe him any money after I moved out so why would he be able to keep the money I prepaid? Even so he has no given any indication that he is planning on keeping the money, I just want to know if this should be refunded when I move out?

The landlord has to prove that he is entitled to the money. He would do this by proving that he was entitled to rental payments for the entire lease term. However, when a tenant terminates a lease early, a landlord is required to mitigate his damages by making a good faith effort to find another tenant. If there were valid complaints against you, he has an argument that your actions are causing him damage. In this case, essentially, you have caused your early termination. If you want your money back, write a certified letter requesting the refund. If it is not returned, dispute the retention of the funds and request proof. If he cannot provide the proof of complaints, you have a solid foundation for getting your money back as well as legal fees.

We have vacant property. It's adjacent to property with a mobile home that we carry insurance on. A neighbor had a bonfire that got out of control and burned many of the trees on the vacant property. Is there anything that we can do to be compensated for the loss of the trees?

Absolutely. Obtain an estimate for the value of the trees. Contact your neighbor first in person if possible. Ask them about settling. Cases always work out best if the parties can communicate. However, this is not always possible.

If you cannot settle, you may file a lawsuit for the loss of the trees. For example, you would have counts for negligence and trespass among others. Consider contacting your insurer to let them know of the incident and to see if you are required by your contract with them to follow any procedures.

I was served papers from a lawfirm for collection on a credit card debt. My credit limit was only $200 and now they say I owe over $1200!!!! The documents served indicated that we are to file a response and appear in court at the end of May. I do not know how to do this and do not have the money to hire a lawyer to do so. If I do not file a response, then a judgment will be entered against me including lawyer fees per the credit card holder agreement. We are very poor and can barey pay for the necessities. I know that the final judgment is going to be huge. They have three lawyers listed as the plaintiff. What do I do? If a judgment is entered, what happens if I cannot pay?

The additional amount alleged to be owed is likely due to interest, late fees, court costs and attorney fees. You will want to file a response indicating that you deny the allegations, that you dispute the debt, and that you do not have the money to pay. In order to draft your response, use the same format as the papers served with the heading being the caption / parties names, case number, and court address. Include therein that you deny the allegations, that you dispute the debt, and that you do not have the money to pay. Sign the document. Call the court indicated on the documents served and ask them what you should do to file your answer. There will be a filing fee. You then have to send out your answer to the lawyers.

If you cannot pay after a judgment is entered, the lawyers will go back to court in order to ultimately garnish your income / assets. If you do not have any income / assets, then they will be unable to collect until your status changes. Their judgment is good for 10 years.

You might consider filing for bankruptcy if you have a substantial amount of other debt too. Bankruptcy will prevent the suit and the collection.

I am being sued for $9800 from a credit card company. I have a date set for a pre-trial conference. I am married and in poor financial health. The credit card was in my name alone. Can they garnish my husband's wages? We have no resources from which to pay the debt. How much of this can they garnish, what else can they do? Can I file bankruptcy as an individual, or does my husband have to file as well?

The company cannot garnish your husband's wages. They can garnish your wages if you net more than $125 per week. They can garnish your income tax returns as well. Once the obtain a judgment against you, they can find out information about your assets and choose what to go after. You will have an opportunity to dispute all actions so make sure you review all information received carefully for hearing dates and deadlines.

You may file a petition for bankruptcy in your name only or jointly.

Ms. Walsh,

I was also bed bug bitten at a hotel. I developed a staph infection. Is there anything I can do? I've gone to the doctor for a prescriptions.

Dear Shun:

You could send written correspondence certified mail, return receipt requested to the hotel stating your issue and requesting a written response within 7 days or you will take more formal measures. It may be best to have an attorney take this matter on for you however.

I sold a used travel trailer to a willing buyer. He and his wife inspected the trailer, and enthusiastically put down a deposit of 100$ and planned to return 5 days later to complete the transaction and take the trailer. When they returned, they looked over the trailer again, paid me the remaining money, and signed a document based on a template from legaldocuments.com agreeing to the sale "as is" between willing parties. As far as I was aware, the trailer was is great condition: I did some light cleaning before the sale an saw nothing wrong, there was no musty smells, no apparent leaks.

Several days after the sale, the buyer called to demand money from me because there was some water damage on the floor of the trailer and black mold on the bunk bed cushion. He claims to have taken it to a trailer repair place and they found the damage. He is now threatening to sue me for the damages unless I pay him for the repairs or take the trailer back.

Can I be sued over this?

Dear Joanna:

Yes, unfortunately a person can be sued whether there is merit to the claim or not. Your more pointed question is whether the buyers can prevail in a suit against you.

In your defense, you sold the travel trailer "as is". As is limits your warranty for any defects in the trailer. In an "as is" sale, a buyer is on notice that he should take the trailer in for an inspection prior to the purchase - not after. Another strength of your case is that you did nothing to misrepresent or defraud the buyers as you were not aware of any damage.

You can be sued, but you should be able to successfully defend the case. However, if you are unable to settle the matter out of court, be ready for a legal dispute which could take up your time and effort (which amounts to money), for up to a year or more.

My father purchased 6 family burial plotswhich was deeded to his name and heirs in Michigan. My mom passed and was buried in one of those plots. My dad remarried, and has since passed. The 2nd wife thinks the plots are hers to sell. The 2nd wife will not show us the will that states the plots are hers, but according to the cemetery the deed for the plots has never been changed. Are the plots mine and my brother and sisters? or is the 2nd wife the owner, by my fathers death?

The answer depends on the specific deed language. If it is "[his name] and heirs", then the wife could have shared ownership with the children.

If there is a will, you need to see it and are entitled to see it by law, as an heir. File a petition in the probate court and/or have an attorney write a letter to the wife.

Also, send a certified letter to the cemetary explaining your dispute so that they have notice.

We recently bought a furnished mobil home in northern Wisconsin, very charming, neat and clean. But, after sleeping on the bed, I have nasty bites--bed bugs. Can we get our money back. I don't want a bug infiltration transferred back to my regular home.

Dear Yvonne:

It never hurts to discuss the problem with the seller. Consider also discretely and carefully discussing the issue with neighbors to find out if they have any information to suggest that the seller's had knowledge of the bed bugs. The seller will not be liable absent prior knowledge with a failure to disclose.

If you cannot work it out with the seller, you will likely be forced to file a lawsuit and this may not be worth the trouble.

I signed a years lease 5 weeks ago. I have been sick ever since, missing 2 days of work so far. It started with my allergies (I take max amount of meds and allergy shots) and then progressed to aggrevating my asthma and getting sinus infections. I have a letter from my doctor stating I need to move or I could end up in the hospital or worse. Can I get out of my lease? If not am I only responsible for rent until my apartment is rented? Thanks

You could argue that there is a defect in the apartment that makes it impossible for you to live up to your end of the contract. (You could inquire of the previous tenants and ask to see their inventory list to see if there was evidence of a problem that was not cured.) The argument is somewhat of a hard sell because given your medical condition, you should have a heightened scrutiny when renting. Furthermore, unless you were given some assurances of the air quality, it is arguably unfair to force your landlord out of a contract. Your landlord should be willing to transfer you to another apartment if one is available, however.

Recently my dog bit my grand-daughter in the face while I was watching her. My son and daughter-inlaw took her to the emergency room where she ended up getting 7 stitches. They did not press charges as it was an accident and I immediately got rid of my dog. Now 6 weeks later, after an argument, they decide to send a claim to Sam Bernstein and see if they can get money from my insurance company. Here's the situation: I switched insurance companies only 2 weeks ago since I found better rates thru my already-existing vehicle insurance carrier, plus no annual dues like the other company. My letter I received today from Bernsteins office is asking me to turn their letter over to my insurance company. The one I had when the dog bite occurred? Or my new one? Please advise as soon as possible! Mary

Dear Mary:

Consider turning the letter over to your present insurance company.