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How Do Special Needs Trusts Work in Indiana?

March 11, 2023 by admin admin

What Is a Special Needs Trust in Indiana and How Do They Work?

Planning to leave money and other assets for loved ones via trusts allows you to protect those assets from a variety of outside forces, including creditors. Special needs trusts provide a different type of protection for your loved ones: They ensure your loved one with a disability doesn’t own the assets in question.

This is important because ownership of those assets could impact your loved one’s ability to access critical government benefits, including Social Security Disability payments or Medicaid. Find out more about special needs trusts below and how to include them in your estate planning as necessary.

Why Should You Set Up a Special Needs Trust?

The purpose of a special needs trust is to provide assets and support for a loved one with a disability without impacting their access to government and other benefits.

For example, your adult child with a disability may have access to Medicaid, SSDI payments, food and housing support, and other benefits. Most of these benefits programs have two basic requirements: the person must have a recognized disability under the program and they must meet income and asset thresholds to qualify financially for the benefits.

If you give your loved one money or assets or leave assets to them in your will, they may no longer meet the financial thresholds for such programs. That means they lose their benefits. The assets you left them now have to be used to pay for things the programs previously paid for until the person runs out of money and can potentially qualify for those programs again—a process that can be cumbersome and stressful. In some cases, they may lose access to benefits that can’t be easily replaced simply by purchasing services.

However, if you leave assets to a loved one in a trust, they don’t own the assets—the trust does. Your loved one can benefit from the assets held in the trust without losing access to their government benefits. For example, assets in the trust can be used to pay for vision, dental, and medical care that isn’t covered by other benefits programs. It could also provide money to help cover the cost of companions and other necessary expenses.

What Are Some Factors to Consider When Setting Up a Special Needs Trust?

How to best set up a trust and what options are right for you depend on a variety of factors. Some of the things that you should consider when setting up a special needs trust include:

How you want to fund the trust. Are you funding it with a one-time transfer of assets? Do you want to be able to transfer other assets into the trust in the future or offer other people in the family a way to make donations into the trust?
What assets you want in the trust. You can put cash or other types of liquid assets in a trust, but you can also put real estate, investments, and even insurance policies in a trust.
Who you want to manage the trust. During your lifetime, you may choose to manage the trust yourself. However, you’ll want to appoint someone you can trust to manage the assets when you’re no longer able to. You can choose a willing and trustworthy loved one or work with an attorney or other professional who can administer the trust for a fee.
The impact of Medicaid, if applicable. In some cases, the trust may need to reimburse Medicaid after the beneficiary passes away. Understanding the complete picture of your loved one’s benefits and how they interact with financial assets can help you plan properly for the future.
Whether you also want to donate to charity. The Special Needs Trust Improvement Act in 2022 created more flexible paths for individuals to fund special needs trusts with retirement benefits while also donating some of those benefits to charity if desired.

Third-Party vs. First-Party Special Needs Trusts

You’ll also want to consider whether you’re setting up a third-party or first-party special needs trust. A third-party special needs trust is one that you fund for the benefit of someone else. These are typically created by individuals for their loved ones with disabilities.

A first-party special needs trust is funded with the assets belonging to the person who benefits from the trust. This option is typically used when someone who did not previously have a qualifying disability ends up with an illness or injury that leads to one. For example, an adult who is involved in a car accident that leaves them with brain damage may need a special needs trust. Their own assets can be used to create it.

How Can an Estate Planning Attorney Help With Special Needs Trusts in Indiana?

Trusts are complex legal tools, so having an experienced attorney help you plan any type of trust can be important. An estate planning attorney can help you understand the future financial ramifications associated with a special needs trust so you can make appropriate decisions about how to use your assets to protect and care for a loved one now and when you’re no longer able to physically.

For more information about how we can help with a special needs trust—or with protecting your assets and legacy for the future—make an appointment with Katie Charleston Law, PC, today.

What Is and Is Not Covered by Copyright?

February 3, 2023 by admin admin

Copyright refers to a type of intellectual property ownership that protects someone’s rights to and interest in an original work. Whoever has the copyright to a work has the legal right to reproduce (copy) the work and distribute it. The copyright holder is the only one with this right; anyone else that wants to copy the work must have permission from the copyright holder.

Copyright law helps protect creators. For example, if someone writes a novel, they can publish it and expect people to pay for copies to read it. Copyright keeps people from legally copying the novel to pass out to others or claiming the novel as their own.

However, copyright applies to much more than creative writing. Learn below what copyright does and doesn’t cover and how a business lawyer can help you protect your interests.

What Is Covered by Copyright Law?

Literary works, such as novels, short stories, and poems
Dramatic works, such as plays or movie/TV scripts
Musical works, including song lyrics, compositions, and choreography
Audiovisual works, including films as separate works from the scripts they are based on
Architectural drawings and works
Visual works of art, including paintings, sculptures, sketches, or graphic designs

Federal copyright law is fairly loose on the interpretation of what falls under these types of categories. Original maps might be copyrighted as visual works, and the same is true for original technical drawings related to a product. Even computer programs may be copyrighted under the right circumstances.

What Can’t Be Protected by Copyright?

However, copyright is not without limits, and there are plenty of concepts and even works that aren’t protected by these laws.

Anything that is not captured in a “fixed tangible form” cannot be copyrighted. If you make up choreography for a dance and teach it to others but never record it via film or notate it in writing, the idea of the choreography can’t be copyrighted. Ideas, in fact, can’t be copyrighted at all.

You also can’t copyright processes, systems, discoveries, or principles. Short phrases, slogans, titles, and symbolic elements such as logos can’t be copyrighted. That doesn’t mean many of these things can’t be protected; many are covered under trademark law, for example.

Copyright also demands some level of originality of the work in question. A list of ingredients for a cake can’t be copyrighted. However, a work containing original recipes for cake might be eligible for copyright.

What Rights Do You Have When You Own a Copyright?

When you own the copyright to a work, you have the exclusive right to copy and distribute it. You also have the right to give people permission to copy and distribute the work. For example, an author contracts with publishers and others to create copies of and distribute a novel. Textbook publishers might provide written permission in their books for teachers to copy certain elements for use in the classroom.

You also have the right to:

Display the work in public or give someone else permission to
Perform the work or allow others to do so
Create derivative work based on the original work and profit from that work if desired

Note that copyright can be complex and include some seeming gray areas. For example, fanfiction is writing that creates a derivative work based on original characters or universes. However, common legal thought on fanfiction is that it falls under fair use as long as the fanfiction meets the definition of a transformative work and the fanfiction author is not attempting to profit from the work. Transformative work is that which adds enough new content or meaning to create new or unique value separate from the original work.

As you can see, when and how copyright comes into play and whether you can file a claim for copyright infringement are complex issues. If you believe your rights under federal copyright law have been infringed, consulting with a business litigation attorney with experience in copyright cases can help you understand how to move forward.

Do You Have to Register for Copyright?

You can formally register an applicable work with the U.S. Copyright Office. This involves completing the necessary forms and submitting those forms along with a copy of the work to be reviewed. The Copyright Office ultimately decides whether it will grant or refuse the copyright.

You don’t need a formal copyright registration to own the copyright to a work. Technically, you automatically hold the copyright as soon as you create an original work. However, you can’t sue someone for copyright infringement without first registering the copyright.

How Long Does Copyright Last?

Works authored by a single individual have a copyright that lasts that person’s entire lifetime plus 70 years
Works authored by multiple individuals have a copyright that lasts for 70 years after the final author passes away
Works that are for hire or published anonymously have a copyright that lasts 120 years from the date they were created or 95 years from the date they were first published, whichever is shorter

Note that the use of “authorship” above does not limit these rules to written works of text such as novels. “Authorship” is used as a blanket term to refer to the creator or originator of works.

If you are dealing with copyright infringement and want legal help protecting your rights, contact Katie Charleston Law, PC, today to find out how we can help.

Does Power of Attorney Automatically Go to My Spouse?

January 10, 2023 by admin admin

The covenant of marriage comes with a lot of rights. There are literally thousands of rights protected by laws on federal, state and even local levels that deal with marriage and spouses. However, none of those laws make your spouse an automatic power of attorney, and if you do create a power of attorney, that relationship can supersede your spouse in many cases.

Discover what a power of attorney is below, why you might want one, and how an estate planning lawyer can help you create POA forms and other important estate documents.

What Is a Power of Attorney?

Power of attorney is a legal power you designate to another person. You do this via a power of attorney form that spells out who your designee (or agent) is and what powers you are giving to them. A POA form can also provide limitations on how and when those powers can be used or go into effect.

Ultimately, when you create a power of attorney, the person you name as agent can act legally on your behalf in whatever way you allowed in the POA document.

When Might You Want a Power of Attorney?

Power of attorney can be specific and limited or broad. For example, you might create a power of attorney that allows someone to make any financial decisions on your behalf. They would, in theory, be able to pay your bills, negotiate financial agreements in your name, and manage your investments and bank accounts.

On the other hand, you can make a power of attorney incredibly specific so that it only works in a certain situation. As an example, a husband and wife were in the process of purchasing a home. The wife was called away for an emergency business trip during the time of the closing. She gave the husband power of attorney for the sole purpose of completing the closing. He signed all paperwork at the closing for himself and on behalf of his wife, as he was her legal power of attorney and agent for that purpose. The POA was limited, though; the husband’s power of attorney would only work on that one occasion and didn’t exist after the fact.

Some reasons you might want to set up a power of attorney include:

One spouse or parent is going out of the country or might be otherwise unavailable and you want to ensure the other spouse has the authority to handle a range of financial, health, or legal matters
You want to protect your wishes for end-of-life or emergency healthcare even if you are incapacitated and unable to voice them, and you want to ensure someone you trust is able to make those decisions for you
You want to ensure your financial matters are handled by a person you trust if you can’t handle them yourself
You want to hand off legal power to someone in a very specific case, such as in the example of the couple buying a home above

Who Should You Choose as a Power of Attorney?

When choosing the person to act as your agent under a power of attorney, it’s important to pick someone who is willing, able, and likely to carry out your wishes. Many people do default to their spouse, as they trust their significant other as much or more than anyone else. A long-term spouse also has the benefit of knowing you well and understanding the spirit of your wishes. This can make them more able to act in keeping with your wishes even if decisions arise for which you didn’t document specific instructions.

However, you don’t have to choose your spouse, and your significant other may not be the right choice in all cases. If you are both aging and you want to create a power of attorney to handle matters in case you are incapacitated, for example, an adult child or younger loved one might be a better choice. Certainly if you and your spouse are having marital difficulties or you don’t believe they are knowledgeable or capable in a certain area, you might want to pick another power of attorney.

Protecting Your Wishes With an Estate Planning Attorney

When you give someone power of attorney, their authority in those specific matters may outstrip your spouse’s. This can be a way to ensure your wishes are carried out or your interests are upheld if you believe they would conflict with what your spouse might do.

For example, perhaps you don’t want certain life-saving measures if you are incapacitated. However, you believe that your spouse, who you know loves you, would be emotionally unable to make such decisions for you. In this case, you could appoint a different person as your medical power of attorney so that they can make the decision your spouse would be unable to.

As you can see, these are weighty matters that require a lot of thought. Being proactive with estate planning ensures you have the time and ability to put your thoughts into action. Consider working with an estate planning attorney to create the appropriate POA forms as well as complete other important tasks, such as making a will.

By taking the time to put your wishes in writing now, you can protect your interests and remove some burden from your loved ones in the future. Contact Katie Charlestone Law, P.C., today to find out how to get started on your own estate plans.

Protect Your Trademark Like Jack Daniels: Jack Daniels Case Headed to the United States Supreme Court

December 16, 2022 by Katie Charleston Law, PC

The Supreme Court of the United States (SCOTUS) is set to hear a trademark infringement case between Jack Daniels and VIP Products, two well-known companies. The case revolves around VIP Products’ dog toy that resembles the Jack Daniels Old No. 7 Black Label Tennessee Whiskey bottle. Jack Daniels is accusing VIP Products of trademark infringement and, after sending a cease and desist letter, and an appeal has brought the case to the Supreme Court.

At stake in this case is whether or not companies have the right to use images or trademarks owned by other entities without their permission under a doctrine of fair use. If Jack Daniels wins, it will establish a precedent that could potentially limit companies’ ability to use famous logos case-by-case in order to avoid infringing on another company’s trademark.

The case is set to be heard by the Supreme Court in the coming weeks and could have far reaching implications for how companies use trademarks for their own benefit. Jack Daniel’s has argued that VIP Products should not be allowed to profit off of its iconic label without its consent, and that this particular use tarnishes its brand and will confuse consumers; while VIP Products has argued that it should be allowed to use the logo under the fair use doctrine. Ultimately, the Supreme Court will decide which opinion is correct and set precedent for future cases involving trademark infringement.

Specifically, the U.S. Supreme Court has agreed, pursuant to its docket, to decide the following questions:

“I. Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims”; and

“2. Whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act.”

Though there have been similar cases in past, this case is especially important due to the high profile nature of Jack Daniels’ trademark. It will be interesting to see how the Supreme Court rules on this case and whether it sets a precedent that could potentially limit companies’ ability to use famous logos without permission. Regardless of the outcome, it is sure to have an impact on how trademarks are used in the future.

The SCOTUS hearing of Jack Daniels v. VIP Products trademark case could have consequences for the use of trademarks in the future, so it is essential that companies understand their rights and obligations when it comes to using them. Though the outcome is still unknown, it will be interesting to see what the Supreme Court decides on this case and its implications for similar cases in the years to come.

Jack Daniels is one of the most iconic American whiskey brands and has been a target of trademark infringement cases since its inception in 1866. Over the years, there have been numerous attempts to use its distinctive logo, or “Old No. 7,” for unauthorized commercial purposes.

In 1906, Jack Daniels was involved in one of its earliest trademark infringement cases when it sued a Tennessee-based company for using its trademarked label on bottles of beer and cider. Jack Daniels won the case, proving that their trademark was unique enough to be protected under the law.

In more recent times, other companies have attempted to use the Jack Daniels logo or name in order to market their own products. In 2013, Jack Daniels sued a Chinese company for producing counterfeit whiskey bottles bearing its trademark. The case was ultimately settled out of court and the company had to cease using the Old No. 7 logo.

In 2016, Jack Daniels’ parent company Brown-Foreman filed lawsuits against several companies in New Jersey and North Carolina for producing T-shirts with the Jack Daniels logo and name. The cases were settled out of court, but Brown-Foreman was able to protect its trademark from being used without authorization.

Jack Daniels has also been involved in other types of legal disputes, including a lawsuit against a website that allowed customers to make their own custom whiskey bottles using the Old No. 7 logo. After a lengthy court battle, Jack Daniels was successful in getting the website to cease operations.

Jack Daniels has also been involved in more recent trademark disputes. In 2017, Jack Daniels sued a company for selling whiskey-flavored lip balm with the Old No. 7 logo on it. The case was settled out of court and the company had to cease production and distribution of the balm. In 2019, Jack Daniels sued an online retailer for selling shot glasses with the Old No. 7 logo on them. Again, the case was settled out of court and the company had to stop selling the shot glasses.

Jack Daniels has proven time and time again that it is serious about protecting its trademark from infringement, and it will continue to do so in the years to come. The Old No. 7 logo is one of the most recognizable trademarks in the world, and Jack Daniels will continue to fight for its protection.

The company has also been proactive in protecting its trademark from being used without permission by other companies. It works with law enforcement agencies around the world to prosecute counterfeiters and has also created an internal task force to monitor potential trademark infringement cases.

It is this dedication to protecting its trademark that has made Jack Daniels one of the most iconic brands in the world today. The company’s efforts have paid off, as it continues to be a successful business even after more than 150 years in operation.

Jack Daniels’ legacy of protecting its trademark has created an example for other businesses to follow. Companies should understand the value of their trademarks and take steps to protect them from infringement. By doing this, they can ensure that their trademarks remain unique and recognizable to consumers. Jack Daniels sets the standard when it comes to protecting its trademarks, and other companies should strive to be as diligent in their efforts.

Ultimately, Jack Daniels’ commitment to protecting its trademark has been a major factor in why the company is so successful today. With its trademark protected from infringement, Jack Daniels can continue to build upon its legacy as one of the most iconic brands in the world.

Are Handwritten Wills Valid in Indiana?

December 14, 2022 by admin admin

Indiana law provides a series of considerations to determine whether or not a will is valid. A handwritten will may or may not be valid, depending on how it was created and signed.

Discover more about what makes wills valid in the Hoosier State below, and learn how an estate planning attorney can help ensure your wishes are protected legally.

What Is a Holographic Will and Why Would Anyone Use One?

A holographic will is one that is written by hand entirely by the person who signs it. Holographic wills may or may not be signed by other people, but they must be signed by the testator. The testator is the person who is creating the will.

A will that is written down in another person’s hand and signed by the testator is generally not considered a holographic will.

Typically, the reason someone might create a holographic will is that they are making sudden changes to their will in an emergency or when facing imminent death.

Does Indiana Allow Holographic or Handwritten Wills?

Indiana does not allow a holographic will that was handwritten and signed only by the testator. To be valid, a handwritten will must conform to all requirements of wills.

Wills in Indiana must be signed in front of two witnesses who are aware you are signing your will. Those witnesses, who must be 18 years of age or older at the time, must also sign the will. The witnesses must be third parties that are not beneficiaries of your will.

You don’t need to have a will notarized in Indiana for it to be valid. This is true of handwritten and typed wills. This is also true for digital wills, which can be signed electronically by all involved. Note that Indiana does require the witnesses to be physically present to sign the will, even if the document itself is digital.

Indiana Allows Oral Wills in Very Specific Cases

If someone does face an immediate danger of death and has not created a will—or wants to make changes to their existing will—they could create an oral will in Indiana.

In the case where there is an immediate danger of death and the person does, indeed, pass away shortly after making an oral will, Indiana will consider the will valid if:

The will was witnessed (or heard) by two third parties who are not beneficiaries
One of those parties records the will in writing within 30 days of the incident
The will disposes of property that is valued at no more than $1,000 (or, in the case of someone creating a will during active wartime while on military duty, no more than $10,000)

What Is a Self-Proving Will?

Generally, the probate court will contact the witnesses of a will to find out more about the situation under which they signed it. This helps the courts determine if a will is valid. However, you can create a document that ensures your will is self-proving and can be accepted as valid by the courts without this step. To do so, you need a document that states:

You met all the state requirements to create a valid will
You signed the will voluntarily and were not coerced into it
Your witnesses also signed the will voluntarily
You were of sound mind and appeared as such to your witnesses at the time you signed the will
You were at least 18 years old or were in the armed forces at the time you signed the will

You can create a second document that testifies to the above facts, signing it and having your witnesses sign it. Or, you can ensure that the language describing the above facts is included in your will when you sign it.

Can Someone Contest Your Will?

Yes, heirs and beneficiaries can contest a will if they believe that it doesn’t meet the legal requirements in Indiana to be valid. Some common reasons people may contest a will include:

They believe there is a valid will signed later. If you sign another valid will after the date you signed the will in question, the older will may be invalidated. It’s important to keep good estate planning records so everyone is aware which will is the most current and the one you mean to be acted upon.

They believe you were not of sound mind when the will was created. If someone becomes ill or otherwise loses cognitive capability before they create a will, the court may not consider the will valid. The person contesting the will must show that you were not mentally able to make such decisions at the time you signed the will because of a condition like dementia or another factor.

They believe you were coerced or otherwise led to sign the will. If your loved ones believe someone forced you to sign a will or that you were manipulated by someone into signing a will, they can contest it. For example, if one beneficiary manipulated you into signing a will that gave them a more favorable inheritance or cut out other heirs without your full understanding and desire to do so, that will may be deemed invalid.

Estate law can be complex, and you want to ensure that your will holds up in court so your wishes can be followed. To learn more about solidifying your final wishes, reach out to Katie Charleston Law, PC, to find out how we can help.

Can I Trademark a Color?

November 16, 2022 by Katie Charleston Law, PC

You can trademark a color, but it’s worth taking the time to consider if you really should or need to. The scenarios under which you can successfully trademark a color are fairly narrow, and you also have to consider the scope of protection and how that might work to protect your brand or business.

Keep reading to find out more about trademarking a color, including whether it might be the right move for your business. Then find out how a trademark attorney can help you through the process.

When Can You Trademark a Color?

Colors couldn’t always be trademarked. The first company to successfully trademark a color in the United States was Owens Corning, which fought its way through the appeals courts to earn a ruling on its trademark of a certain shade of pink. In 1985, the court ruled that Owens Corning could have a trademark on the pink associated with its insulation products and that the company could keep other competitors from using that hue.

Since that time, other businesses have trademarked colors. To successfully trademark a color, however, you must meet a few requirements. The color can’t simply serve a decorative or utilitarian purpose. For example, having a specific blue in your logo because your logo includes the image of the sky isn’t enough for a trademark. That’s simply a utilitarian use of the hue.

Instead, the color has to serve an identification function. It must be critical to differentiating your brand or product from others, and you typically have to demonstrate that the public has come to associate the color with your brand over time.

Owens Corning products, for example, are synonymous with that particular shade of pink, and consumers can often pick them out based solely on that hue. In another example, you can see two box delivery trucks up ahead on the highway. If one is a certain shade of dark brown, you know without seeing anything else that it’s a UPS truck.

Understanding Trademark Scope of Protection

When you get a trademark, the protections it offers are limited in scope. Trademarks require two parts:

The symbol, word, phrase, design, and/or color
The goods and services those marks apply to

Consider Target’s red bull’s-eye. This mark is directly related to retail stores and services. The scope of protection, then, is limited to this space and niches that may be very close to it. So, if a new retail website launched using a similar red bull’s-eye, Target would be able to stop it from using the logo under trademark protection. There’s a good chance that consumers would confuse the retail website as being associated with Target if the design is used.

However, if an archery supplies company used a red bull’s-eye pattern on its packaging to indicate what the target inside might look like, Target probably couldn’t stop this use. That’s because consumers are unlikely to see a bull’s-eye on a package for an archery target (that would naturally have a bull’s-eye on it) and think “Oh, this must be associated with Target the store.” The scope of protection would not apply here.

More Examples of Trademarked Colors

To understand the type of relationship between goods and services—and public identification of a brand—and trademarked colors, consider some of these examples:

Coca-Cola red. Just reading that phrase, you probably have a mental image of the color in question. At this point, that particular red is synonymous with the soda company. If you saw a cola can with that red and no logo or other information, you would still think “Coca-Cola.”

Home Depot orange. The home improvement store is often positioned nearby its biggest competitor, Lowe’s. But there’s no confusing the two, because Home Depot’s orange logo and design elements are ingrained in the awareness of consumers.

Pepto-Bismol pink. Reaching for stomach relief is easy, even if your medicine cabinet is a bit unorganized. Almost nothing else in the niche has the same cotton-candy pink hue as Pepto.

How Can You Trademark a Color

As previously mentioned, the first step is considering whether you really do need to trademark the color. You also need to consider whether consumers have come to identify this color with your brand to a high-enough degree over time. A trademark and business litigation attorney can help you understand whether this is the right step for you and whether you have the ability to protect your trademark if you do seek it.

Once you decide to trademark a color, the path is similar to the process for any other type of trademark. You’ll have to conduct a trademark search with the United States Patent and Trademark Office to ensure a competing trademark filing isn’t already in place. Then you have to apply for the trademark with the USPTO. On average, this process can take 12 to 18 months, though it can be longer in some cases. If your trademark application is denied, you can appeal the decision if desired.

Whether you’re seeking to trademark a color or your business logo or tagline, a trademark attorney can guide you through the process, handle the paperwork details, and fight on your behalf to get your trademark approved. Find out more about how we can help by contacting Kate Charleston Law, PC, today.