Legal Question in Business Law in California

Re: Use of my family name as a trade name by anoother party

In the United States, there is no particular property right in a family name. So, for example, Mr. Smith and Mr. Jones can for a corporation called "Williams Manufacturing, Inc." and persons named Williams cannot object.

On the other hand, when the name becomes famous or is part of a trademark, the right of others to use it for similar products or services may be limited. For example, a person named Disney probably could not use his name for any business activity connected with the entertainment industry, and the Gallo wine family has successfully prevented a younger brother who is in the cheese business from using the Gallo name on his cheese.

If you are planning to creat a foundation of any significant size, you'll want to retain a lawyer to set it up. When you do, you should raise these name-selection and name-use questions with that lawyer. I don't think that licenses, lawsuits or royalties are in the picture, based on the information given, but I could be wrong and it wouldn't cost much to have a lawyer check it out based on ability to question you face-to-face after becoming counsel for the foundation.

Re: Use of my family name as a trade name by anoother party

From what we understand you would like to receive royalties due the use of your family name in a product, by a Brazilian enterprise.

As a first parameter, the Brazilian law prohibits the registry of a family name, as a product or service.

If the Brazilian entrepreneur already has the registry, no royalties will be due to you. As he will be the legitimated owner of the �name�.

In the other hand, even if he is the owner of the �registered name�, he could be illegally exercising a �called right�, as by what you explained, he has no authorization of the wholly family to use �the name�.

The solution for this case is enter in a lawsuit, requiring the void of the presumed �registered name�, as it was registered against article 165, of Federal Law 9.279/1996.

***IMPORTANT*** You can only exercise the right to void a �registered name�, five years from the date the name was registered.

In the event that neither the Brazilian entrepreneur or you, have the �registered name�, you can do so by getting the authorization of all family members, obeying what is said on article 124, inc. XV of Federal Law 9.279/1996.

This is a general information, based on the elements you informed us. We can make a deep surveillance of your chances in a lawsuit or agreement with the Brazilian entrepreneur, only having access to the real facts, but charging a fee for it.