Frequently Asked Questions

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Susan Holzer Human Resources Dir. Humane Society

If I have told my employee that he cannot work beyond 8 hours in a day, but he does it against my orders, am I liable for the over-time?
I loaned money to my friend for personal uses, but it was hard for me; so I charged him the same interest rate that he would have to pay a credit card company less a few points. He agreed in writing to a rate of 15%. Now I have to collect from him. Can I?
Can I protect my idea by mailing it to myself?
I want to get a trademark for a name that is already being used; if I change the spelling, will that be enough?
What is the advantage of registering a trademark?
How long does it take to register a trademark?

If I have told my employee that he cannot work beyond 8 hours in a day, but he does it against my orders, am I liable for the over-time?

Yes. If you know it is happening and allow it to occur you owe the over-time. "To suffer to permit, is to condone." Your only recourse is to discipline the employee for failure to follow your directions.

I loaned money to my friend for personal uses, but it was hard for me; so I charged him the same interest rate that he would have to pay a credit card company less a few points. He agreed in writing to a rate of 15%. Now I have to collect from him. Can I?

No. You can only collect the amount owed but not the interest because any sum over the greater of 10% or 5% plus the latest federal reserve rate (except for brokered real property loans) violates the California Constitutional usury limitation.

Can I protect my idea by mailing it to myself?

This is a common misconception. Mailing yourself a piece of paper containing your work can be used as evidence of the date you first came up with an idea, but it does not create any intellectual property rights. Copyrights can be created (under current law) without registration, but if you're going to put a copyrighted work in the mail, you might as well send it to the U.S. Copyright Office with a application form and a modest filing fee. However, the more important question—whether your work is capable of protection as a copyright (as opposed to patent or trade secret)—is an analysis best left to experienced legal counsel.

I want to get a trademark for a name that is already being used; if I change the spelling, will that be enough?

Federal trademark law protects an owner against marks that are confusingly similar, not just identical marks. Most courts and the Patent and Trademark Office use a multi-part test to determine whether the two marks are confusingly similar. One of the factors is whether the two names are similar in "sight, sound and meaning." Oftentimes, changing the spelling does not alter the sight, sound and meaning of the words, so it is not particularly helpful to the applicant. However, similarity of the names is only one of several factors used in determining whether the marks are confusingly similar; a complete analysis should be conducted before starting use of the name.

What is the advantage of registering a trademark?

Federal registration of your trademark is an effective way to protect your exclusive right to use that mark in connection with selling your goods or services throughout the United States. Nationwide exclusivity is presumed, even if the mark has never been used in a distant state. Access to federal courts, and enhanced remedies for infringement, are also available.

How long does it take to register a trademark?

It takes at least a year to obtain federal registration of a trademark. However, trademark rights begin upon the date of first use. The priority of competing claimants for the exclusive right to use a valid trademark depends on which party was the first to, either, use the mark in commerce or, file an application for federal registration on an "intent-to-use" basis.

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