New York Real Estate Lawyer Blog

May 24, 2012

Taglines and Trademarks: First in Time Gets First in Tag (Line)

Everyone knows a tagline or two-Nike’s “Just Do it”; McDonald’s “I’m Loving It”; Cotton’s “The Fabric of Our Lives”; the list goes on and on. These taglines are essentially a branding slogan used to market or advertise a given good or service. The purpose of a tagline – and a good tagline will achieve this purpose – is to create a phrase that will help consumers remember your product. Some taglines even speak to the nature of their product: if you are going to Burger King, you are going to remember that you can have it your way; if you choose Allstate as your insurance company, you are going to remember that you are “in good hands.”

But how does one keep from having their tagline stolen from underneath them? The answer is not novel, nor it is necessarily difficult, if you are the first to “coin” this term, you trademark it. Per the United States Patent and Trademark Office (“USPTO”), trademarks protect words and symbols that distinguish products or services from those of other sellers or manufacturers and indicate the source of the product or service. Essentially what this means is that your tagline must be very specific to your company; it cannot be so general as to encompass many goods or products. This is because if the tagline is given trademark protection, other companies are foreclosed from using such phrases in their taglines.

The steps to obtain trademark protection are simple, but very particular. First, one who seeks to have their tagline trademarked must make certain that their idea does not conflict with an existing slogan that has been trademarked. There is a free device on the USPTO website called the “Trademark Electronic Search System” that can be used to conduct this search. Next, you must write a description of your tagline linking it to your good or service. It must be specific enough to set your tagline apart from others-be sure to include your slogan in standard size as you are not allowed to trademark any specific color, font, font size, or design for your tagline. Third, you file this application with the USPTO. You will receive a number to use as your receipt. Then, you wait to receive a response to your application from USPTO.

April 23, 2012

Trademarks and the Internet—More Related Than One Would Think!

by Peter Klose

Today, a vast majority of us use the Internet at least once a day. In fact, if you are reading this blog, you have just proven my point! Using the Internet has only gotten easier with search engines like Google and Yahoo. So naturally, from a business standpoint, it is smart to get as much Internet exposure as possible to market your product!

If you are just starting out, you want to pick a name that has terms that are already widely searched. For example, “[y]ou’d rather have a name like Moviefone than one like Fandango, because that is what someone is going to plug into a search engine. . .” suggests Allen P. Adamson, managing director of Landor Associates, a brand design firm. See New York Times.

But what Mr. Adamson also points out is that you will likely be challenged on that name-namely by gigantic corporations looking to put a financial burden on small companies trying to patent simple terms. Id. Professor Barton Beebe at New York University Law School who specializes in intellectual property law explained it as such: “If they can’t win in the marketplace, they try to soften them up with legal fees and distract them. Even if they lose the case, it’s a Pyrrhic victory because the small company has wasted so many resources.” Id.

March 22, 2012

Home Improvement Contractors and Mechanic’s Liens Filed Against Your Home in New York.

by Peter Klose

So you have finally updated your home by addition, new kitchen or other improvement. You tried doing it by the book, went through the normal channels; obtained estimates, interviewed contractors, investigated their references and made that home improvement using your hard earned dollars. The work commences, is substantially complete and your contractor suddenly disappears, starts showing up sporadically, or starts pressuring you for more money. Ultimately, you dispute the contractor’s view of the costs, his final project or some of the final punch list items and make the decision to withhold payment. What happens next? The Contractor likely files a mechanic’s lien with the county clerk.

New York

Since the home improvement was done to your “real property”, the contractor has the legal right to file a lien, without legal process or litigation. In New York, a contractor who has not been paid for services rendered or materials furnished for the improvement of real property can file a mechanic’s lien against your home. See N.Y. Lien L., Art. 3, § 40 (2010). In other words, the unpaid contractor has the power to get in the way your ability to transfer or finance your real property (i.e. sell or refinance your home) until it is paid.

In New York, mechanic’s liens are filed in the office of the county clerk where the property is situated, and can be filed without first commencing a law suit. Once properly filed, the mechanic’s lien-like an outstanding mortgage-is an impediment to clear title. New York allows a contractor to file a mechanic’s lien against your home even if the underlying “contract” was oral (not in writing). Cynically, even though the work conducted may not have been what you wanted or you do not accept the work, the contractor may seek to “enforce” their right to payment through a lien without intervention of a court. This turns the normal idea of “due process” on its head, giving the contractor (and others) significant power.

This seemingly unfettered right to encumber real property without process does not come without a a responsibility. The law has several safeguards to protect homeowners. First, although a contractor does not need a homeowner’s permission to file the lien (and in New York, does not even need to first notify the homeowner about filing) there are stringent requirements that must be met in order for such lien to be valid.

For example, the home improvement contractor must file the lien in the county clerk’s office, then notify the homeowner of the filing by sending a copy of the lien by both regular and certified mail within thirty (30) days of the filing date, and then finally must provide the clerk with an “affidavit of service” advising the clerk that the homeowner has been properly notified of the lien’s filing. More importantly, if the contractor wilfully exaggerates the amount or nature of the lien, the law permits a counter-claim for treble damages and attorneys fees. Also, the encumbrance on your title does not last indefinitely. The contractor must file an action to “foreclose” the lien within one year, or seek court intervention to extend its duration.
Generally, the liens expire on their face after one year (unless extended), and after three (3) years in the eyes of most title companies.

The Bottom Line

Be careful. When contracting with the home improvement contractor protect yourself by requiring “lien releases” at each stage of the construction. When a dispute is inevitable, be sure that you have the paperwork to show how much you have paid and how much you agreed to pay. If it’s a really big job, pay an attorney a flat rate to advise you on the contract.

We at Klose & Associates help contractors and home owners realize clear agreements as to what improvements are going to cost, and how to handle the disputes that arise.
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March 9, 2012

Why should I check for an Oil Tank in New York?

by Peter Klose

When I bought my house I saw some unexplained pipes in the wall. The owners said that the house was heated by natural gas, they had never used oil. The inspector made no mention of the potential that there might have been an underground tank. I wasn’t taking any chances. I called a tank investigation company.

Under the Navigation Law of New York, the owner is absolutely and unconditionally responsible for oil contamination. In fact, the Department of Environmental Protection is entitled to clean up the site and bill the owner for the costs associated with cleanup.

Luckily, the tank inspection company found the tank (1000) gallons, and we refused to close unless the Sellers cleaned up, which they did at a cost of more than $30,000 (often not covered by home owners insurance). That would not have been a happy day for a new home owner. I learned my lesson, and I try to impart that knowledge to my clients.

December 15, 2011

Installing “Airports” on private land in New York.

by Peter Klose

So, your next door neighbor wants to “legalize,” install, or expand an airport in New York, what do you do? Hire a lawyer, participate in the process and call your legislators because any installation of an “airport” in New York requires legislative approval from the legislative body of the municipality. That approval, together with the “positive declaration” of the New York State Department of Transportation might just mean that you are dealing with an airport in your back yard.

Specifically, the Gen Bus. L, Section 249, states:

(3). Approval of privately-owned airports. No person shall hereafter establish a privately-owned airport or make an airport improvement to an existing privately-owned airport except by authorization of the governing body of the city, village or town in which such airport or any part thereof is proposed to be established or improved. The governing body of a city, village or town shall not authorize the establishment of such an airport or an airport improvement at a requested location unless in accordance with the standards prescribed by the commissioner of transportation. The local governing body of a city, village or town shall, prior to granting such authorization, request the commissioner of transportation to determine whether or not the establishment of such a privately-owned airport improvement complies with his standards.

November 30, 2011

So You need a Name Change in New York.

by Peter Klose

My elderly client calls me up and says, “I can’t get a copy of my birth certificate, so I can’t get a passport, so I can’t . . . . . ”

“That’s a new one on me,” I say. It turns out that this client had been using “mary smith” for more than 70 years, but that her true name “june mary smith” (names changed to protect the innocent) appeared on her birth certificate. She had no legal papers to show that she had ever used the name “June” anywhere, even her Social Security card contained the name “Mary Smith.” Two marriages later, she wants a passport to visit her daughter, but the New York City Clerk won’t give her a certified copy of her New York State birth certificate because she can’t prove who she really is. Frustrating? Not for this spry client, but a pain in the neck because now she has to Petition the New York State Supreme Court to legally “change her name.”

That makes no sense, but it’s true and it’s happening to many people in this post- 9/11 era. We prepared a Petition for a Name Change under New York’s Civil Rights Law, Sections 60 through 65, and sent her to the court house to “walk it through.”

November 21, 2011

Protecting your Home from Creditors in New York

by Peter Klose

The NYTimes reported that a legendary sports figure being investigated as part of an ever widening criminal investigation transferred his house just four (4) months prior to the scandal hitting the national press. Forbes.com wrote an interesting article that discusses the reasons for such a transfer.

As reported in the article, the question of whether a real estate transfer is fraudulent or designed to divest creditors of assets will be a fact intensive review. In this case, the elderly embattled figure may have transferred the home to effect an estate plan, may have just learned that he is ill, or could have done it to avoid personal liabilty for the alleged coverup.

In New York, the creditors will have a long battle ahead. They need to prove a case, win a judgment, and then chase after the debtor.

October 19, 2011

So Your Attorney Told You Not to Talk to the Other Party in New York?

by Peter Klose

Every day parties hire lawyers to “resolve” a dispute, to “negotiate” a transaction, to “settle” a matter that has arisen between two entities or individuals. The attorney often jumps into the fray (swords raised), has discussions with the other lawyer, and, sometimes, those communications get garbled leaving the process damaged, the parties angry, and the matter not resolved. “Garbled” is the polite term, but a less idealistic view might suggest that the negotiations got garbled by the fact that lawyers have their own interests of professional reputation, or purse strings, or other undisclosed reasons for muddying the water. Personally, I don’t respect attorneys who practice that way, but they will all have excuses as to why the communication was presented in the way it was. So, what am I to do, I cannot contact a party represented by another lawyer?

Can I have my client contact the other client directly, and can I tell them what to say?

Truthfully, I have counseled my clients to contact the other side directly, without the filter of an attorney; but I have often been concerned that such advice, while practical, might not be ethical or responsible under our code of professional ethics. In my gut, I always thought it proper, but I had a nagging sense that other attorneys might disagree. I thank my bretheran at the NYSBar Association who have now set forth an ethics opinion sanctioning such conduct by issuing an opinion about when and how a New York attorney might advise their client to contact the other side directly.

September 26, 2011

Second Hand Smoke—What Are Your Rights as Property Owners or Lessees in New York?

by Peter Klose

As we all know, second hand smoke is never a pleasant experience; tight living quarters make it even worse.

Most people in apartment complexes come in with the notion that there will be some unpleasant smells associated with living with other people, and are not bothered by smoke so long as it is contained. However, sometimes that is just not possible with smoke. If this is the case, it is reasonable that a tenant would become annoyed. But what does what is a tenant to do? They can call the landlord, ask the smokers to stop, plug up any holes, etc, but what happens when they find that their efforts were in vain?

The good news is that there is something you can do. After you let your landlord know that there is a serious second hand smoke issue, preferably in writing, tenant may bring suit against their landlords on the grounds of implied warranty of habitability. Under this theory, courts have looked to the facts and circumstances of the situation to determine whether the second hand smoke is so pervasive as to continue constructive conviction, i.e. your living situation was so badly that you were not kicked out by your landlord but you might as well have been. See Poyck v. Bryant, 31 Misc.3d 699 (N.Y County Civil Ct. 2006).

September 12, 2011

Copyright Infringment

by Peter Klose

Section 503 of the United States Copyright Act provides for statutory damages of up to $150,000 per infringment for willful copying. The statute also provides for attorneys’ fees, costs and lost profits and damages. The Copyright Act applies to all types of creative works, including this one (and all other blog posts).