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Protecting Your Trademark

By definition, a trademark is “a distinctive sign or indicator used by an individual, business, organization or other legal entity to identify products or services to consumers with which the trademark appears originate from a unique source.” Companies or individuals register their trademarks to protect it from being used by other entities, which is considered trademark infringement.

After a trademark is registered, it is usually designated with one of the following symbols:
•    ™ (for an unregistered trade mark, that is, a mark used to promote or brand goods)
•    ? (for an unregistered service mark, that is, a mark used to promote or brand services)
•    ® (for a registered trademark)

A trademark does not have to just be a symbol. It can also be a name, word, phrase, logo, image or a combination of these elements. Trademarks can also include the shape of goods, packaging, color or a combination of colors, a smell, sound or even a movement.  The only stipulation is that such items must be used exclusively to identify a commercial source or origin of products or services to be considered a trademark.

The concept of using a trademark is said to date back to the Roman Empire and the blacksmiths who made the swords and placed their stamps on them. One of the oldest registered trademarks is “The Bass Red Triangle”, which was trademarked in 1875 in the United Kingdom.

Two basic requirements must be met for a mark to be eligible for trademark protection: it must be in use in commerce and it must be distinctive.  The first requirement, as defined by the Lanham Act, is that a mark be used in commerce.  With common law and under traditional Lanham Act registration procedures, exclusive rights to a trademark are awarded to the first to use it in commerce.

The second requirement is that the mark be distinctive.  A trademark that is categorized as descriptive is only protectable as a trademark if it has acquired a secondary meaning in the minds of the consuming public.  Secondary meaning is also necessary to establish trademark protection for a personal name or a geographic term.  Generic terms are never eligible for trademark protection because they refer to a general class of products rather than indicating a unique source.

Different goods and services have been classified by the International (Nice) Classification of Goods and Services into 45 Trademark Classes (1 to 34 cover goods, and 35 to 45 services). The idea of this system is to specify and limit the extension of the intellectual property right by determining which goods or services are covered by the mark, and to unify classification systems around the world.

Owners of registered trademarks can protect the unauthorized use of that trademark.  Unregistered marks may only be protected within the geographical area within which it has been used or in geographical areas. A registered trademark is considered by law to be a form of property.

In the United States the trademark registration process entails several steps prior to a trademark receiving its Certificate of Registration.   First, an Applicant, the individual or entity applying for the registration, files an application to register the respective trademark.  An attorney for the U.S. Patent and Trademark Office examines the trademark to make sure it complies with all requirements.  Requirements include making sure the applicant’s goods or services are identified properly and that the mark is not merely descriptive or likely to cause confusion with a pre-existing applied-for or registered mark.

There is then a 30-day waiting period in which third parties who may be affected by the registration of the trademark may step forward to file an Opposition Proceeding to stop the registration of the mark. If this happens, a proceeding is filed before the Trademark Trial and Appeal Board. If there is no third-party opposition, the registration becomes completed.

Trademarks rights must be maintained through actual lawful use of the trademark. These rights will cease if a mark is not actively used for a period of time, normally 5 years in most jurisdictions. Failure to actively use the mark in the lawful course of trade, or to enforce the registration in the event of infringement, may also expose the registration itself to become liable for the removal of the trademark from the register. It is not necessary for a trademark owner to take enforcement action against all infringement if it can be shown that the owner perceived the infringement to be minor and inconsequential. This is designed to prevent owners from continually being tied up in litigation for fear of cancellation.

In the US, due to the overwhelming number of unregistered rights, trademark applicants are advised to perform searches not just of the trademark register but of local business directories and relevant trade press before applying for a registered trademark. There are specialized search companies perform such tasks prior to application.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com

Defining Copyright

Copyright can seem complicated and yet is so important to understand so that one doesn’t infringe on another’s rights.

By definition, copyright is the set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. These rights can be licensed, transferred and/or assigned. Copyright lasts for a certain time period after which the work is said to enter the public domain. Copyright applies to a wide range of works that are substantive and fixed in a medium. Some jurisdictions also recognize “moral rights” of the creator of a work, such as the right to be credited for the work.

Copyright is literally, the right to copy, though in legal terms “the right to control copying” is more accurate. The term copyright means one has exclusive statutory rights to exercise control over copying and other exploitation of the works for a specific period of time. The copyright owner is given two sets of rights: an exclusive, positive right to copy and exploit the copyrighted work, or license others to do so, and a negative right to prevent anyone else from doing so without consent, with the possibility of legal remedies if they do.

When one wanted a copyright, it initially meant they were granted the exclusive right to copy a book or made allowances for anybody to use the book for various purposes such as making a translation, adaptation or public performance.  At the time print on paper was the only format in which most text based copyrighted works were distributed.

The type of works, which were subject to copyright, expanded over time. Initially copyright only covered books. Then copyright law was revised in the 19th century to include maps, charts, engravings, prints, musical compositions, dramatic works, photographs, paintings, drawings and sculptures. Developments in technology again added to these and now include motion pictures, computer programs, sound recordings, Choreography and architectural works.

The purpose of copyright primarily has its basis in commerce but it is also for the sake of controlling one’s creations. Under the Berne copyright convention, which almost all major nations have signed, every creative work is copyrighted the moment it is fixed in tangible form. No notice is necessary, though it helps legal cases. No registration is necessary, though it’s needed later to sue. The copyright lasts until 70 years after the author dies. Facts and ideas can’t be copyrighted, only expressions of creative effort.

Copyright law is different from country to country, and a copyright notice is required in about 20 countries for a work to be protected under copyright.  Before 1989 all published works in the US had to contain a copyright notice, the (c) symbol followed by the publication date and copyright owner’s name, to be protected by copyright. This is no longer the case and use of a copyright notice is now optional in the US, though they are still used.

Having a copyright on your work is not a complicated process, just one that requires a little research and knowledge.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com

What is Reasonable Suspicion?

To be searched, one knows that the officer must have reasonable suspicion.  It is part of our rights as American citizens. But what does reasonable suspicion mean exactly and how did the term come about?

By definition, reasonable suspicion is “a legal standard in United States law that a person has been, is, or is about to be engaged in criminal activity based on specific and articulable facts and inferences. It is the basis for an investigatory or Terry stop by the police and requires less evidence than probable cause, the legal requirement for arrests and warrants.”

Reasonable suspicion is evaluated using the “reasonable person” or “reasonable officer” standard, in which there must be reason to believe a person has been, is, or is about to be engaged in criminal activity. With reasonable suspicion, a police officer may frisk a suspect for weapons if that officer feels a threat of safety. The officer cannot search for contraband like drugs. Reasonable suspicion is also sometimes called “arguable suspicion”.

The term reasonable suspicion traces its roots back to the Fourth Amendment, which says American citizens are protected against unreasonable searches and seizures. What this means is that an officer must first obtain a warrant from a judge or magistrate that is based upon probable cause that the search will yield evidence of crime, or that the person to be arrested is guilty of a crime. A search or seizure without a warrant that is backed by probable cause is presumptively an “unreasonable” search or seizure.

Because the Fourth Amendment does not literally require warrants, or even probable cause, for every search and seizure, some cases are upheld for warrantless searches and seizures.

The federal case, U.S. Supreme Court’s 1968 landmark decision in Terry v. Ohio, helped define reasonable suspicion even further.  In this Supreme Court case, the Court ruled that a police officer may “stop and frisk” a suspect if the officer observes “articulable facts” that make it “reasonable to assume” that the suspect is armed and dangerous. This standard is less demanding than the “probable cause” that is needed for a full arrest because the nature of the intrusion–a brief stop and a weapons pat-down–is less serious than with an arrest.

Courts also ruled in (Terry v. Ohio, 392 U.S. 1 (1968)) that a stop on reasonable suspicion may be appropriate in the following cases: when a person possesses many unusual items which would be useful in a crime like a wire hanger and is looking into car windows at 2am, when a person matches a description of a suspect given by another police officer over department radio, or when a person runs away at the sight of police officers who are at common law right of inquiry (founded suspicion).  Where the line is drawn and an officer cannot declare reasonable suspicion is when a person refuses to answer questions, declines to allow a voluntary search, or is of a suspected race or ethnicity.

With reasonable suspicion, a police officer may detain you for a short period of time and can use force to detain you. Force is only typically used if the officer’s safety is paramount, such as cases of violent crimes (robbery, rape, gun run). For a non-violent crime (shoplifting for example) an officer may frisk you, but if that officer suspects a weapon on your person, they now have reasonable suspicion and can frisk in that area only.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com.

Defining A Legal Deposition

Depositions are a pre-trial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party. The person who is deposed is called the deponent. The deposition is conducted under oath outside of the courtroom, usually in a lawyer’s office. A transcript is made of the account, word for word. Depositions can also be either video or audio recorded. A deposition is also done under sworn testimony. It is also referred to as examination before trial.

When a lawsuit is instituted, the parties have the right to conduct discovery or what is also called formal investigation. This is done to find out more about the case. Conducting discovery can be done in a number of different ways; it can include requests for documents, interrogatories (written questions), and depositions. Depositions are the most common way as it allows the parties to find out what the facts are and what each witness knows.

After the deponent is sworn in, an attorney will represent the parties involved in the case. That attorney will have an opportunity to question the witness. After the deposition is finished, a transcript is made available to all parties.

Why is one called in for a deposition? There are several reasons. They include:
•    Gathering basic evidence.
•    To serve as a record of the witness’s testimony so that the witnesses may be impeached if he/she deviates from that testimony at trial.
•    To give attorneys an opportunity to ask questions that they may not be allowed to ask at trial.
•    To have the testimony available as evidence in case the deponent is not available for any lawful reason during the time of the trial.

Depositions are primarily taken in civil cases. Depositions of defendants and people who may become defendants are less likely to occur in criminal cases. In civil cases, the opposition has the right to obtain damaging information from defendants.  Not every case will require depositions to be taken. The determination is dependent upon facts and issues.

Attorneys for the deposing litigant are often present during a deposition, although this is not required in all jurisdictions. The attorney who has ordered the examination before trial begins questions the deponent (this is referred to as “direct examination” or “direct” for short). Since nods and gestures cannot be recorded, the witness is instructed to answer all questions aloud. After the direct examination, other attorneys in attendance cross-examine the witness. The first attorney may ask more questions at the end, in re-direct, which may be followed by re-cross.

Everything is recorded by the court reporter during a deposition, this includes off the record discussions, private conversations with an attorney (if they are heard), arguments between attorneys, jokes, and non-verbals including body language and gestures. Many attorneys advise their clients to rehearse legal testimony beforehand. This can be done through the practice of answering questions, especially questions presented in a confusing way.  It is not uncommon for the opposing attorney to ask repetitious questions in order to wear out the opposition. A deponent should listen very carefully to the questions asked and carefully, precisely and clearly state their answer.

A deposition can take as long as a week, especially if there are numerous witnesses, or as short as fifteen minutes.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com.

What Are Civil Rights

The term ‘civil rights’ is frequently heard but few understand the complexity of its definition or its history.

By definition, “Civil Rights” are the rights of individuals to receive equal treatment (and to be free from unfair treatment or “discrimination”) in a number of settings — including education, employment, housing, and more — and based on certain legally protected characteristics.

Civil Rights are different than Civil Liberties in that the concept of civil rights revolved around the basic right to be free from unequal treatment based on certain protected characteristics such as race, gender, disability, etc. Civil liberties are more broad-based in definition; they are rights and freedoms that are guaranteed at the federal level by the Constitution and other federal laws.

Most laws that guarantee and regulate civil rights originate at the federal level, either through federal legislation or through federal court decisions. States can also pass their own civil rights laws as well as municipalities such as cities and counties.

Civil rights were meant to ensure people’s physical integrity and safety; to protect them from discrimination, to provide freedom of thought, speech, expression, and religion. Civil and political rights are also meant to protect those who may be discriminated against based on their physical or mental disability, gender, religion, race, sexual orientation, national origin, age, immigration status, etc, from unwarranted action by the government and private organizations. Political rights include natural justice in law such as the rights of the accused, including the right to a fair trial; due process; the right to seek redress or a legal remedy; rights of participation in civil society and politics – including freedom of association, the right to assemble, the right to petition and the right to vote.

Most democracies worldwide have formal written guarantees of civil and political rights. In the United States, the most important expansion of civil rights was the enactment of the Thirteenth and Fourteenth Amendments. The Thirteenth Amendment abolished slavery throughout the United States. Following the Thirteenth Amendment, many states enacted ‘black codes’ which were intended to limit the civil rights of the newly free slaves. In 1868 the Fourteenth Amendment was passed to counter the ‘black codes’ and ensure that no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States or deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of laws. Congress was also given the power in the Fourteenth Amendment to pass any laws needed for its enforcement.

Numerous civil rights statutes, many of which are still in force today, followed these Amendments. One important statute includes the Civil Rights Act of 1964, which declared a strong legislative policy against discrimination in public schools and colleges. Title VII of the Civil Rights Act also created the prohibition of employment discrimination.

Because civil rights are guaranteed at the federal level, the interpretation is also at the federal level, which can play a crucial role in interpreting the extent of such civil rights. One Supreme Court ruling can change a right throughout the entire country. Supreme Court decisions can also affect the manner in which Congress enacts civil rights legislation.

Civil rights can be simple and yet ever changing and complicated in interpretation at times. It’s history is always in the making.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com

Why People Choose Mediation

Mediation, often used in respects to the law, is defined as an activity in which a neutral third party, the mediator, guides and regulates structured discussion to facilitate reaching consensus on a disputed issue. Two parties, who have a difference of opinion and are in need of resolution, will often be asked to use a mediator to solve their problem. The neutral third-party’s intention is to then help the other parties resolve a dispute and come to an agreement. When one agrees to a mediator, it does not mean they are obligated to accept any proposed agreements.

Why is mediation used for dispute resolution over other channels? There are many reasons, they include:

•    It is often a less expensive route to follow. A mediator may charge a fee but the mediation process typically takes less time than moving a case through standard legal channels. A case in the hands of a lawyer and the court system could take months or even years to resolve while a case in mediation can typically achieve resolution in a matter of hours.

•    The process of mediation is a confidential process.  Whatever happens in mediation remains strictly confidential, as opposed to a court hearing, which happens in public. During mediation, only the parties in dispute plus the mediator know what  was discussed. Confidentially is so strict in mediation that the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Most mediators go as far as to destroy their notes once mediation is finished. The only exceptions to such confidentiality are in cases that involve child abuse or actual or threatened criminal acts.

•    Mediation can offer multiple and flexible possibilities for resolving a dispute. In contrast, when a case is taken to court, the parties are often given a resolution by the judge or jury. In mediation, the parties have control over the resolution. Solutions are often those, which the parties have agreed upon mutually and discussed thoroughly, therefore they are often more creative and fair. Another benefit to having both parties agree to a resolution is that typically neither party must force compliance upon the other. Because both parties have agreed upon the solution rather than a judge, the chances that the parties will comply are much higher.

•    Coming to a resolution is often higher during mediation as both parties are agreeing to a mutual endeavor. Parties in mediation usually seek it out because they want to resolve a dispute. With both parties ready to move forward along with a willingness to understand each other’s underlying issues to the dispute, gives the added benefit of preserving the relationship the parties had before the dispute.

•    A good mediator helps both parties think outside of the box and reduce high emotions. Mediators are trained in conflict resolution and in working with difficult situations. The mediator will not give legal advice but guide both parties through the process of solving a problem. A mediator may or may not suggest alterative solutions to the dispute but help both parties come up with solutions on their own that suits each best.

Mediation is used in many situations, especially when it comes to parties who want to preserve their relationship. This can include family conflict such as divorce, premarital agreements, alimony, child support, family business, estate disputes and end-of-life issues. Mediation can also be valuable for conflicts in the workplace such as wrongful termination, discrimination, harassment, grievances and labor management. Landlord/tenant conflicts are often brought into mediation as well as homeowners association problems or contracts of any kind.

While there are no guarantees a conflict will be resolved, mediation is often the preferred choice of the legal system.

“Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com”

Preparing For A Lawsuit

If you are in a position where you need to vindicate your rights or receive compensation for your pain and suffering, knowing how to prepare for a lawsuit is important. Without properly organizing your claim or conveying important information to your lawyer, you could sabotage your own chances of succeeding.

So what are the necessary steps in getting prepared?

1. Get Organized. Pull together all your evidence, witnesses and other pertinent information before moving forward. Having all your documents, phone numbers, contacts and paperwork together is critical. Whether your claim is being filed in small claims court, or the local superior/municipal court, you should ensure that you have gathered as much evidence for your claim as possible. Doing so will also make your attorney happy and their job easier. The most common problem lawyers have in dealing with clients is the client’s failure to keep relevant details of their claim. While you may not have every piece of information, taking what you do have to your attorney will help them have it on hand when ready. By having access to this information, you allow your lawyer ample time to issue subpoenas and obtain necessary supporting documentation.

2. Hire A Lawyer. Choosing the right lawyer is critical. You should set up meetings with a few different attorneys to ‘interview’ them. Many people can determine right away whether an attorney is honest and forthcoming. In personal injury and workers’ compensation matters, most attorneys offer a free initial consultation. You should discuss your case with the attorney the chance of success or failure. Know there are risks to every case and make sure the attorney you choose is honest with you in what those risks are. Ask your attorney whether they will be giving you periodic updates on the status of the case in writing or by phone. Also ask whether they will be your main point of contact or will communications be delegated to a paralegal or secretary. You will also want to know how the attorney will be charging you for his fees. Some are paid hourly while others will be entitled to a percentage of what they recover on your behalf (contingency fee). If you are being charged hourly, make sure you know the rate and if your attorney is working on contingency basis, make sure you know the percentage he is entitled to from your financial settlement or judgment. Try to obtain an estimate of what the case will cost to litigate. Ask your attorney what kind of experience he/she has in regards to your case. Also consider the size of the firm you will be dealing with. There are advantages and disadvantages to both big and small firms. Small firms can be more personalized and possibly have more time for your case but large firms are often more feared and are more reputable. Larger firms also have greater resources and manpower.

3. Ask Your Lawyer The Right Questions – In addition to hiring the right attorney, your part is critical too in the relationship and the case. You don’t want to feel in the dark during your lawsuit, mostly because you haven’t asked the right questions. Remember that your attorney is working for you, if you don’t understand something, don’t be afraid to ask your attorney to explain it to you. If the attorney isn’t willing to explain, you may have to retain a new one. Questions you will want to ask and be in the know about include:

• What stage the litigation is in?
• What are the court dates on calendar?
• Is your appearance needed at court, or only your attorney?
• What your possible recovery or remedies are? and
• What are the possible “negative” outcomes of your action?

While a lawsuit can be long and complicated, depending on your situation, the above three steps will help you get started in the process in a more successful way.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com”