Aug
23

What Should You Do With Your Careless Driving Ticket in Miami Dade, Florida – Call 305-279-4740- LAW OFFICES OF TROY & SCHWARTZ, LLC

If you recently got a careless driving ticket in Miami or anywhere in Florida, we know that you likely have many questions about how it will impact your driving record and your possible criminal record.

When you receive a careless driving ticket in Florida, you should learn more about this offense, potential defenses, and the penalties that you may face under Florida law.

The most important thing will be working with a Miami, Florida traffic defense attorney to learn more about fighting the ticket and the charges.

LEARN MORE ABOUT THE DEFINITION OF CARELESS DRIVING UNDER FLORIDA LAW

Under Florida law ( Fla. Stat. 316.1925) careless driving is defined in terms of failing to obey the law.  The statute makes clear that “any person operating a vehicle upon the streets or highways within the state shall drive the same in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb, or property of any person.”

The statute goes on to explain that “failure to drive in such manner shall constitute careless driving.”  In other words, anyone who is driving in Miami, Florida is expected to obey the rules of the road in order to avoid harming anyone else or causing any type of property damage.  If a driver fails to drive in that manner, or what Florida law describes as a careful and prudent manner, than you can face careless driving charges.

A person can get a ticket for careless driving in a wide variety of circumstance, including traffic accidents in which the law enforcement official believes that the person is at fault, as well as any incidents in which a law enforcement official believes that a driver is not driving in a careful and prudent manner.

To be clear, no harm has to occur- nobody has to get hurt and no property damage must occur- in order for a person to get a ticket for careless driving.

UNDERSTANGIN PENTALTIES FOR CARELESS DRIVING IN FLORIDA

You should know that penalties for careless driving in order to understand the importance of fighting your ticket.  While careless driving is not a criminal offense, potential penalties can include costly fines.  The maximum penalty for a careless driving charge under Florida law is $500, while.

Yet penalties for careless driving extend beyond the financial penalty that you will pay.  Typically, a careless driving conviction means that you will end up with more points on your license than you would with a typical traffic violation.

While many moving violations result in 3 points or fewer on a person’s driver’s license, a careless driving conviction can result in 4 points on your driver’s license.  As a result, a careless driving ticket can end up costing significantly more money in the long run for car insurance.

In some cases, it may be possible to get what is known as a “withhold of adjudication.”  In Florida, this means that the person does not have a conviction, and must take a driving class in order to avoid having a conviction on his or her record.

 

Troy & Schwartz, LLC – CALL US NOW!  305-279-4740- OFFICES IN MIAMI

  • Comments Off on What Should You Do With Your Careless Driving Ticket in Miami Dade, Florida – Call 305-279-4740- LAW OFFICES OF TROY & SCHWARTZ, LLC
  • Add Comment
Posted in Uncategorized on August 23,2019 10:08 AM

OTHER RECENT POSTS

Aug
19

CONSTRUCTIVE ACTUAL, PHYSCIAL CONTROL OF VEHICLE AND DUI DEFENSE-MIAMI, FL- CALL LAW OFFICE OF TROY & SCHWARTZ, LLC 305-279-4740. OFFICES IN MIAMI

CALL NOW- 305-279-4740 TO DISCUSS YOUR LEGAL RIGHTS INVOLVING DUI IN MIAMI, FL- LAW OFFICE OF TROY & SCHWARTZ, LLC (JON D. SCHWARTZ, ESQ.)

In Florida, most people arrested for DUI (driving under the influence of alcohol or drugs) after a police officer observes them driving a vehicle while allegedly impaired. While the DUI crime is called “driving” under the influence, a person in Florida does not actually have to be driving to be arrested and convicted of a DUI charge.  There are two ways to be guilty of DUI, Driving, of course, is one way.  The statute provides for another method.  If a person is in actual, physical control of the vehicle, while impaired from alcohol or drugs, that person can be arrested and convicted of DUI even if the police officer, or anyone else, never sees that person driving.  So, what does actual, physical control of a vehicle mean in Florida?  There have been numerous cases that have discussed situations where a DUI suspect was found in or near his car and whether that constituted actual, physical control sufficient of a DUI conviction.  Some of the factors include how close the suspect is to the driver’s seat, where the keys are located and whether the vehicle is operable.

PLEASE CONTACT US AT:  305-279-4740 FOR YOUR CONSULATION REGARDING YOUR DUI IN MIAMI, FL-  JON D. SCHWARTZ, ESQ.  LAW OFFICE OF TROY & SCHWARTZ, LLC

 

  • Comments Off on CONSTRUCTIVE ACTUAL, PHYSCIAL CONTROL OF VEHICLE AND DUI DEFENSE-MIAMI, FL- CALL LAW OFFICE OF TROY & SCHWARTZ, LLC 305-279-4740. OFFICES IN MIAMI
  • Add Comment
Posted in Uncategorized on August 19,2019 12:08 PM
Aug
16

Back to School Safety: Law Offices of Troy & Schwartz, LLC- MIAMI- LAW FIRM 305-279-4740

LAW OFFICE OF TROY & SCHWARTZ, LLC

For the citizens of Florida, school is back in session.  This means buses are back on the roads and students will be meeting and making new friends.  The start of a new school year is an exciting time, but with it comes an increased exposure to risks that are easily avoidable if approached properly.

SPEEDING IN A SCHOOL ZONE

In Florida, speeding fines vary by county, if you are caught speeding in a school zone, your fine will be doubled.

PASSING A SCHOOL BUS

Stopping for a school bus may seem like common sense.  According to the Florida Department of Highway Safety and Motor Vehicles, over 2300 people were ticketed in 2016 for ignoring school bus top signals.  Under Florida law, all drivers are required to come to a complete stop upon approaching any school bus which displays a stop signal.  The driver is required to remain stopped while the bus is stopped and may not begin moving until the stop signal has been completely withdrawn.  A driver who violates this law and passes the bus on the left side could receive a minimum fine of $165.00.

WHEN DO I HAVE TO STOP OF A SCHOOL BUS?

If you are behind or beside a school bus traveling in the same direction, it goes without saying that you must stop and follow the traffic rules.

IF YOU HAVE RECEIVED A TICKET FOR ANY REASON IN FLORIDA, PLEASE GIVE US A CALL FOR A FREE CONSULTATION.

1-800-559-4320- LAW OFFICES OF TROY & SCHWARTZ, LLC- OFFICES IN MIAMI

305-279-4740.  CALL US NOW!  WE ARE STANDING BY!

 

 

  • Comments Off on Back to School Safety: Law Offices of Troy & Schwartz, LLC- MIAMI- LAW FIRM 305-279-4740
  • Add Comment
Posted in Uncategorized on August 16,2019 01:08 PM
Jul
21

A REGISTERED TRADEMARK APPLICANT MUST BE THE OWNER OF THE MARK UNDER SECTION 5 OF THE LANHAM ACT.

On July 2, 2019, the Trademark Trial and Appeal Board (“TTAB”) sustained the opposition to the mark HOLLYWOOD HOTEL by finding that the mark was void ab initio because the Applicant was not the owner of the mark.   Hollywood Casino, LLC v. Chateau Celeste, Inc., Opposition No. 91203686.

An application is void if it is filed by a person or entity that is not the owner of the mark.  By definition, the owner of the mark is the one that controls the nature and quality of the goods and services under the mark.  This requirement is consistent with trademark law’s focus on preventing consumer confusion over who is providing the goods/services under the mark.

Here, the opposer had the burden to prove that the Applicant was not the owner at the time of filing of the opposed application.  HOLLYWOOD HOTEL was owned as a common law mark starting in 1994 by Zarco Hotels.   Applicant Chateau Celeste, Inc. filed the application for the HOLLYWOOD HOTEL mark in 2011.  The application was subsequently opposed by Hollywood Casino, LLC on likelihood of confusion grounds.  During the course of discovery, the opposer ascertained from the testimony of the Applicant’s president that Chateau Celeste was not the actual owner of the HOLLYWOOD HOTEL mark under the law.  The TTAB granted the opposer the right to amend the complaint to include a count that the mark was not registerable because the Applicant was not the true owner of the mark.

The opinion is instructive because it emphasizes the importance of ensuring that the applicant and the mark owner are one and the same.  First, as the Hollywood Casino decision establishes, an application filed by a non-owner is void from the start.  Second, even if the application somehow makes it through the registration process without an opposition proceeding, ownership issues may arise in any future trademark infringement litigation proceedings; it is the owner of the mark who generally has standing to bring such lawsuits.  Third, ownership issues may also arise in a later cancellation proceeding brought by another party before the TTAB.

The ownership in a mark, whether registered or common law, may pass to another through a formal assignment of rights.  The USPTO encourages recordation of “registered mark” assignments to establish a public chain of title.  Trademark assignments often arise when a business is purchased where registered or common law or state trademark rights are acquired as part of an asset purchase or stock purchase. Additionally, ownership may pass without a formal assignment if one company becomes the owner of mark by controlling its use by a related company, e.g., by a subsidiary.

Importantly, licensees are not the owners of trademarks.  Indeed, any licensor of trademarks has the obligation to ensure that the licensee is maintaining the nature and the quality of the goods and services associated with the licensed mark.

At the time the HOLLYWOOD HOTEL mark was filed, there were two separate companies in existence where one individual was an officer and controlling shareholder in both and both of the companies had the same address.  This is the same individual whose deposition resulted in the opposer’s amended complaint.   The TTAB deemed this commonality as being insufficient to make the companies related for ownership purposes under Section 5 of the Lanham Act.  The Applicant, Chateau Celeste, Inc., would have to establish that it, not the individual officer/shareholder, controlled the nature and quality of the services rendered by Zarco Hotels, the corporation actually using the mark.  Because Zarco Hotels and Chateau Celeste constituted separate legal entities and Zarco Hotels was the owner of the physical property itself, the TTAB concluded the application was filed by the wrong legal entity and hence void.

Take Home Points

  1. It is important to ensure that applicant in any trademark application is the owner of the mark – i.e., the one who is using or will be using the proposed mark in commerce.
  2. Assignments of marks should be memorialized in a formal writing. Assignments involving registered marks should be recorded with the USPTO.
  3. Assignment during the prosecution of a trademark application may be allowed but only under certain circumstances.
  4. Acquiring licensing rights in a trademark is not equal to ownership of the licensed mark.   A licensor has an on-going obligation to monitor the licensee’s usage of the mark.

 

THANK YOU FOR READING THIS BLOG.  PLEASE SHARE IT WITH ANYONE WHO MIGHT BENEFIT. AS ALWAYS, THE CONTENT IS NOT LEGAL ADVICE AND IS PRESENTED FOR INFORMATIONAL PURPOSES ONLY.

 

© Troy & Schwartz, LLC

Where Legal Meets Entrepreneurship™

 

 

 

 

 

 

  • Comments Off on A REGISTERED TRADEMARK APPLICANT MUST BE THE OWNER OF THE MARK UNDER SECTION 5 OF THE LANHAM ACT.
  • Add Comment
Jul
05

ANOTHER TRADEMARK APPLICATION BITES THE DUST BECAUSE OF UNACCEPTABLE SPECIMENS!

Imagine having a proposed mark meet the requirements for overcoming a finding of likelihood of confusion or mere descriptiveness only to have the mark rejected for registration as the result of insufficient specimens. As this post discusses, specimens can make or break a trademark application.

THANK YOU FOR READING THIS BLOG.  PLEASE SHARE IT WITH ANYONE WHO MIGHT BENEFIT.  AS ALWAYS, THE CONTENT IS NOT LEGAL ADVICE AND IS PRESENTED FOR INFORMATIONAL PURPOSES ONLY.

Perhaps no other area of trademark application prosecution is more misunderstood by applicants than the requirement that specimens must show use of the proposed mark with the applicant’s specified goods or services. The commentator, Susan D. Troy, who is in charge of the business and intellectual property law practice areas for the law firm, has previously posted blogs on this important topic. Today’s post relates to the Trademark Trial and Appeal Board’s (“Board”) recent affirmance of the refusal to register the mark THE CARDIO GROUP & Design for the Applicant’s failure to submit specimens reflective of the Applicant’s services.  In re The Cardio Group, LLC  (TTAB June 20, 2019) [precedential] (Application SN 86840860).

The application’s specified services under international class 35 were for “retail store services featuring medical devices.” The Board found that the Applicant is clearly engaged in selling products. Nevertheless, the inclusion of the words “retail services” suggests that the Applicant’s products were either being sold being sold in a brick-and-mortar location, on-line, or via catalogues. The Applicant, however, did not provide specimens showing how the mark was being used in the “retail services” arena. This commentator notes that maybe the original description of services incorrectly used the word retail.

In reaching its conclusion, the Board focused on “whether the evidence of Applicant’s use of its mark creates an association between the mark and the Applicant’s retail store services.” Importantly, the specimens must show a direct association between the mark and the service activity [or goods] and the source of the services [or goods]. To create such a “direct association,” the specimens must contain a reference to the service and identify the service and its source (generally the applicant which may be an entity or an individual).

Here, the Applicant submitted a website screenshot, a confidential sales agreement, and an invoice, all displaying the proposed mark. The website specimen merely presented the results of an analysis from a medical device and no information that the Applicant was making the device available for sale on-line, by personal sales calls, or otherwise. The invoice likewise did not refer to any activity that might be considered a retail store service. The commentator notes that invoices are generally not acceptable specimens for goods or services but can serve as a proof that the mark was in in commerce as of the invoice’s date. Additionally, why the Applicant, would have provided a confidential sales agreement as a specimen that becomes available to the public at www.USPTO.gov is indeed puzzling.

The Board concluded that the Applicant’s specimens of use were unacceptable because they failed to show the mark used in connection with the specified “retail services.” Although the Applicant is engaged in selling products, “nothing in the documents submitted by Applicant … refer to a retail store (of either on-line or brick-and-mortar variety) or create an association of any kind between THE CARDIO GROUP and design and a retail store service.”

In assessing the adequacy of specimens, the USPTO must consider any explanations offered by an applicant that “clarify the nature, content, or context of use of the specimen that are consistent with what the specimen itself shows.” See In re Pitney Bowes, Inc., 125 U.S.P.Q.2d 1417, 1420 (T.T.A.B. 2018); In re DSM Pharms., Inc., 87 U.S.P.Q.2d 1623, 1626 (T.T.A.B. 2008). Here, the Applicant stated that its services are in the nature of activities provided by a retail store – i.e., it is selling goods – and it argued that such activities do not have to take place in an actual retail store. The Board noted that retail stores services may be offered in various ways, including through physical locations, catalogs, or on-line, but the Applicant’s specimens did not suggest that any of these retail “avenues” were being used to make the medical device available in interstate commerce.

The Applicant also tried to amend its description of services to retail sales services, but the Board found that the proposed change simply restated that applicant’s specimens “reflect a product sale” and not that any retail store services were provided in selling the product. Considering all the specimens along with Applicant’s explanations, the Board found “no direct association in any of the specimens between THE CARDIO GROUP and design and any type of retail store service.” The Board emphasized that the specimens had to establish that the mark and design were a source indicator for retail services. Emphasis added. Nothing in provided specimens demonstrated to the Board’s satisfaction that consumers would perceive THE CARDIO GROUP and design as a source indicator for retail store services. “Ultimate consumers who choose to purchase Applicant’s products very well may understand they are engaging in a retail sales transaction with Applicant, but even if this is assumed, it would not establish that such consumers, prior to making their decision to make such a  purchase, were exposed to any advertising or promotion of Applicant as the operator of a retail store selling medical devices.”

In conclusion, specimens can make or break a trademark application. Don’t let this situation happen to you!

A Note to Trademark Applicants

Trademark applicants who become the clients of Troy & Schwartz, LLC will understand the requirements for specimens for 1A applications from the get-go. Attorney Susan Troy also works closely with clients for whom intent-to-use applications are filed to ensure that the subsequent specimens will comply with the USPTO’s requirements by keeping in contact with these clients to discuss the specimen creation progress.  For example, she reviews websites where screen shots are to be provided as specimens to ensure that they are presented in the manner required for “website page” specimens and will make suggestions to the website designer where changes are required in her opinion to comply with specimen requirements. This hands-on approach is an example of the added value of working with our firm to achieve your trademark registration and branding goals.  We are about providing value in all our attorney-client relationships.

© Troy & Schwartz, LLC

Where Legal Meets Entrepreneurship™

 

  • Comments Off on ANOTHER TRADEMARK APPLICATION BITES THE DUST BECAUSE OF UNACCEPTABLE SPECIMENS!
  • Add Comment