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

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Posted in Uncategorized on August 23,2019 10:08 AM

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Jun
03

Maintaining Registered Trademarks & Patents – Do It or Lose Your Rights!

  • Background

So you or your company have met the requirements for receiving a registered trademark or patent from the United States Patent and Trademark Office (USPTO). Your efforts to obtain these valuable intellectual property rights (especially for the patent) involved considerable costs ranging from legal fees to filing fees charged by the USPTO and maybe even an appeal. Does your success in obtaining a registered trademark or a patent mean that your “interaction” with the USPTO is now over and done with? Not if you wish to retain your trademark registration and patent rights!

Both registered trademark rights and patents require the payment of maintenance fees to the USPTO to maintain their “active” status. Additionally, the owner of registered trademarks must also establish periodically that the mark is still in use to enjoy the benefits of registration. Patents, on the other hand, need never be practiced to enjoy continuing patent rights during the effective patent term providing the maintenance fees are timely paid.

Unfortunately, many patent and registered trademark owners are not aware of the ramifications of failing to pay maintenance fees until it’s too late. This article summarizes important information related to maintaining the active status of registered trademarks and issued patents.

  • Maintenance of Registered Trademarks

The USPTO is required to strictly comply with the federal statute governing registered trademark maintenance fees.  Failure to timely pay the maintenance fees will result in administrative cancellation of the mark by the USPTO. These fees are due within the 5th and 6th years of registration, the 9th and 10th years of registration and every 10th year thereafter. Once cancelled as the result of non-payment of the required maintenance fee, the only way to again acquire registration rights in that mark is to file another trademark application and go through the prosecution process again.

This new trademark prosecution process may not necessarily result in registration of the mark that had been cancelled. This commentator encountered such a scenario with a client who had inadvertently failed to pay the maintenance fee by the 6th year of registration on a valuable registration originally obtained by the client. The commentator was retained to file a new application for the cancelled mark. The new examining attorney initially refused registration of the mark as being merely descriptive despite the fact that the same mark had once been registered. The commentator was able to obtain registration of the mark on distinctiveness grounds.

Proving distinctiveness to the satisfaction of the USPTO is no easy task as the case law demonstrates and can be a very costly endeavor because of the legal fees. The commentator’s client would have appealed any final rejection by the examining attorney to the Trademark Trial and Appeal Board (TTAB) because of the value of mark. Appeals are expensive and time-consuming. Additionally, statistics available for TTAB decisions show that examining attorneys’ rejections are affirmed more often than not. Hence another reason for ensuring that trademark registration fees are timely paid to prevent a situation where a new examining attorney may conclude that the “re-filed” mark does not qualify for registration.

In addition to paying the maintenance fee, the mark owner must file documentation with the maintenance fees declaring that the mark is still in use and provide specimens proving as such. As long as the declaration and specimens are filed according to the above specified schedule and the declaration/specimens meet the requirements USPTO’s requirements, the registered trademark will remain in effect with three exceptions: (1) it becomes cancelled as the result of a cancellation proceeding filed with the TTAB by a third party; (2) it becomes cancelled as the result of a trademark infringement lawsuit in federal court wherein the court issues an order directing the USPTO to cancel the mark; or (3) it is voluntarily cancelled by the registrant, the mark’s current owner, or the registrant/owner’s legal representative. See 37 U.S.C. § 1904.07(a).

Registered trademarks that end up being cancelled by the USPTO for any statutory reason will be designated as cancelled in the records of the USPTO. Registered trademarks may also be cancelled by a federal court to which a party (petitioner or registrant) in a TTAB cancellation proceeding has appealed the TTAB’s cancellation decision.

The actual trademark registration maintenance fees due are dependent upon the number of international classes designated for the registered trademark. If the trademark owner is no longer using the mark with one more of the designated classes in a multi-international class registration, then the declaration should indicate as such and request deletion of the “inactive” classes of goods/services. The payment due is based on the number of “remaining” classes and the registrant must provide specimens showing how the mark is still being used with the “remaining” classes.

A registered mark may remain in effect indefinitely providing declarations/fees are timely submitted to the USPTO and accepted and assuming that the registered mark is not cancelled as the result of one of the above three specified scenarios. That is, there is no statutory “cut-off” period for enjoying registered mark status.

  • Maintenance of Patents

Maintenance fees on utility patents in the United States are due 3½, 7½ and 11½ years after grant of the utility patent. In contrast to many other countries, no maintenance fees are due while a US patent application is pending.  Maintenance fees are not required for design patents and plant patents.

Patents have a defined lifetime generally equal to twenty (20) years from the application’s filing date; the actual expiration date is determined under the patent term extension statute where the 20 year date may be adjusted to a later or earlier date according to the patent’s prosecution history. Patents therefore have a cut-in-stone expiration date while registered trademarks may last indefinitely.

Patent maintenance fees may not be paid in advance; the patentee must wait until the payment window opens six months before the due date before paying a maintenance fee. At the end of the half-year window during which a maintenance fee may be paid, a six-month grace period begins during which a patentee may still pay the maintenance fee along with a small surcharge. The maintenance fees are determined on the basis of the patentee’s designated status: large entity, small entity, or micro entity. This status must be reasserted with the payment of each maintenance fee.

If the maintenance fee has not been paid at the conclusion of the grace period, the patent expires for non-payment of maintenance fees. In contrast to trademark registrations for which the declaration/maintenance fee was not timely filed, a patentee may file a petition indicating that the non-payment was unintentional. This petition must be timely filed and there is no guarantee that the petition will be granted and the expired patent reinstated.

Patent claims may be invalidated as the result of proceedings involving the USPTO’s Patent Trial & Appeal Board (PTAB) (see 35 U.S.C. § 311) or by federal court order resulting from: (1) a patent infringement case wherein the alleged infringer successfully argues that at least some of the patent claims should be invalidated; or (2) an appeal of a PTAB decision to the court. As long as an issued patent has claims that are not invalidated as the result of proceedings before the PTAB or a federal court, maintenance fees will be due.

  • Assignment of Registered Trademarks and Patents

The assignee of any registered trademark or patent rights will generally assume the responsibility of paying any future maintenance fees as the mark owner and filing the required declaration/specimens. Any assignment document should always specify which party has the obligation to pay the maintenance fees. Assignees should always ensure that any assigned trademark registration or patent is full effect and that the assignor is indeed the legal owner of an “active” trademark registration or patent. Recordation of any trademark or patent assignment with the USPTO is highly recommended. Licensors of trademarks and patents are generally responsible for paying the maintenance fees, but any licensing agreement should nevertheless clearly state who has the obligation to do so. The licensor remains the owner of the registered mark or patent.

  • Ensuring that Valuable Registered Trademark and Patent Rights Are Not Lost for Failure to Maintain

Large companies generally have procedures in place for monitoring the status of their trademark and/or patent intellectual property. The in-house legal team, if any, is generally involved in monitoring the “active” status of the company’s IP.

Startups and small companies, on the other hand, often do not have a formal mechanism in place for ensuring that the future required maintenance fee dates are adhered to.  Furthermore, these time periods occur over a period of many years and can easily be “forgotten.” It is thus highly recommended that any entity owner of any registered trademark and/or patent adopt a procedure for annually reviewing the status of its intellectual property by designated managers/officers to ensure that maintenance dates are kept on the radar. Additionally, a department and/or employee should be assigned the responsibility of ensuring compliance with registered trademark and patent maintenance fee/document filing requirements by the due date. Payments/filings are preferably made “earlier” rather than “later.” Proof of payment/document filings should be maintained with the other records associated with the corresponding patent or registered trademark.

For registered trademarks, either in-house counsel or outside counsel should be consulted if there are any questions concerning the declaration/specimen documents that will need to be filed with the USPTO to ensure that the registration status will remain in effect. The USPTO will reject declarations that do not meet statutory requirements, including establishing that the declaration filer is the owner of the registered mark.

  • A Brief Comment on Copyright and Trade Secret Lifetimes

Although not discussed above, registered copyrights enjoy decades of protection under the copyright statute and maintenance fees are not required. Trade secret protection can last for decades or far beyond the lifetime a patent providing, of course, that the trade secret remains just that – secret. The best example of a long-time trade secret is the formulation for Coca Cola.

…………………………………………………………………………………………………

The foregoing is not legal advice but is provided for information only. Contact the office to receive a complimentary checklist for monitoring the status of your valuable IP at sdtroy@troyandschwartzlaw.com. The commentator is available to assist clients in obtaining and maintaining intellectual property rights protection as well as protecting their valuable intellectual property from the unauthorized use by others at a predictable, reasonable legal fee.

© Troy & Schwartz, LLC 2019

Where Legal Meets Entrepreneurship™

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Jun
03

A Practical Tip for Trademark Registrants & Applicants – Don’t Fall for Trademark Scammer Scare Tactics!

It seems that clients for whom our law firm has obtained registered trademarks are receiving more letters from scammers than in the past. One client reported receiving five different scammer letters in one week!  These letters are purposely intended to suggest that: 1) the letter was sent from the United States Patent & Trademark Office; or 2) the scammer is a recognized affiliate of the USPTO authorized to send such correspondence.  The USPTO’s website has a notice warning the public about these scam tactics.  Also, the USPTO sends out a notice with each Registered Trademark Certificate warning the trademark owner about “scamming” activities by third parties.

For our trademark clients, we provide a detailed letter specifying the future dates by which the registered mark/patent owner must take “action” to maintain the active status of the mark/patent. One thing is for sure:  the inadvertent loss of registered trademark rights resulting from the failure to properly maintain a registered trademark can have serious, costly consequences.  Don’t let that happen to you by failing to understand your date-specific obligations as a registered trademark owner. See the website’s blog on Trademark and Patent Maintenance Fees.

Many of the commentator’s clients have forwarded copies of scammer letters which have actually specified wrong trademark registration date information! The sender also requested hefty fees without any detail as to what the suggested fees cover or the information that the third party will require from the registered trademark owner or applicant to comply with the USPTO’s maintenance requirements. What these scammer letters all have in common is the following: a request to send money!

By way of example, one long-time client recently received a letter from a scammer by the name of PTMI (Patent & Trademark Institute) purporting to be a “register of trademarks.” No physical address was provided.  For $765.00, PTMI would apparently list the client’s registered mark in a data base under the scammer’s control for one year.   This type of service is a joke since all countries through a bona fide governmental intellectual property agency such as our own USPTO list all existing registered marks, abandoned marks, and cancelled marks.  Additionally, the World Intellectual Property Organization (WIPO) also maintains records of registered marks throughout the world.  There is absolutely no need to pay a third party to list one’s registered mark.  Such a data base would also be useless for trademark search purposes since it’s highly likely the data base would be incomplete or provide incorrect information.   This commentator would not even rely on any information provided in “sketchy” data bases when conducting a trademark or “knockout” search and neither would other trademark attorneys.

Another client received a notice from Glo Trade, S.R.O. requesting over $2800 to monitor the client’s soon-to-be registered trademark for one year. The notice indicated a registration date for the client’s mark even though the application is at the publication stage.  The incorrect notice doesn’t provide much confidence that Glo Trade, S.R.O. would do a decent job of tracking conflicting marks if it can’t even get the client’s registration date right, does it?  The commentator notes that there are legitimate companies for tracking potentially infringing applied-for trademarks; these legitimate companies do not send out solicitation letters.

Registered trademark owners who do not already have a trademark attorney are welcome to contact contact us at (305) 279-4740 about any “scam” letters they receive to verify for their own peace of mind that the letter is indeed from a “scamming” third party.   We will provide the complimentary service of checking the caller’s trademark registration date/patent issuance date based on USPTO records to determine the next actual date by which the trademark/patent owner must take action to maintain the active status of the trademark/patent.

If the caller requests us to do so, we will handle the steps required for maintaining a trademark(s)/patent(s) at an attractive legal fee that will be substantially less than what the scammer hopes to obtain for questionable services. The owner of a trademark registration can also always file the required documentation directly with the USPTO to maintain a registered trademark.  The owner just needs to make sure that all representations to the USPTO are accurate and comport with the USPTO’s requirements.

We hope you find this blog useful.   However, it is not legal advice and is provided for informational purposes only!

 

© Troy & Schwartz, LLC 2019

Where Legal Meets Entrepreneurship™

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Jun
03

Trademark Symbol Usage – Are You Using the Correct Symbol?

The three trademark symbols are the circled R, and the capital letters TM for trademark and SM for service mark.  All three symbols are generally presented as a superscript.

The circled R symbol (federal registration notice) is reserved for those trademarks and service marks that have been registered by the USPTO as the result of a formal trademark application evaluation process.   Additionally, the circled R should only be used in connection with the goods or services that are listed in the federal registration issued by the USPTO.  For example, if a mark is registered for clothing goods only as evidenced by the federal registration, the federal registration symbol should not be used by the mark owner on any non-clothing goods.  The owner of the “initial” registered marks may apply for registration of the mark for non-clothing goods to obtain broader “registered mark” coverage.

Nor does registration of a mark in one or more of the fifty states of the United States entitle a person to use the federal registration notice.  The circled R is to be used only to denote actual registration of the mark by the USPTO for the goods and services shown in the registration.

The mere submission of a trademark application in no way means that the applicant can start using the registered mark while the application is pending.  Any usage of the circled R absent formal registration of the mark is a violation of federal law and may cause the USPTO to deny registration of the trademark application even if the application is otherwise acceptable.

The USPTO’s refusal to register a mark may have unintended economic consequences for applicants who have spent already considerable funds on developing their brand only to be denied registration of the mark. For example, a registered trademark can be a valuable business asset.   Lack of a formally registered mark may reduce the value of the business or interfere with the franchising process which generally involves the licensing of a federally registered mark(s). Although other factors may result in refusal by the USPTO to register the mark, applicants should also avoid losing out on acquiring registered trademark rights by misusing the circled R symbol.

Until when and if a mark is formally registered with the USPTO, the provider of goods and/or services should use the TM (trademark) or SM (service mark). These are not official or statutory symbols of federal registration.  Nevertheless, both symbols provide notice to would-be infringers that the mark owner views the mark as a trademark/service mark and that it will defend it against would-be infringers. It is entirely acceptable if specimens submitted to the USPTO’s trademark application examining attorney includes either the TM or the SM.

Specimens submitted to the USPTO examining attorney that include the circled R may present problems for the applicant. For applicants not using the services of a trademark attorney, it is therefore cautioned that the applicant ensure that website pages, marketing materials, displays, etc. submitted to the examining attorney as specimens do not show the circled R. An advantage of hiring a trademark attorney to handle trademark applications is that the attorney will:  1) verify that the specimens are suitable for submission by personally evaluating the specimens for compliance with the law prior to submission; 2) alert the applicant of any observed misusage of the federal registration notice in the specimens; 3) request new specimens for submission to the USPTO; and 4) direct the applicant to immediately refrain from using the circled R.   That is, a thorough trademark attorney will do much more than merely fill out a trademark application form.

Besides possible problems with trademark applications, are there any other legal ramifications associated with the usage of the circled R for unregistered marks?  Many times the usage of the circled R is inadvertent and based on a misunderstanding of how and when the circled R can be used.  That is, the misuse is an honest mistake.

However, the misuse of the circled R can also result in allegations of fraud to knowingly and willfully deceive or mislead consumers or others in the trade into believing that the mark was registered.  Where the cause of action is before the Trademark Trial and Appeal Board (TTAB) such as an opposition proceeding, the TTAB may deny registration of an otherwise registrable mark.  Such conduct would also likely sustain a petition to cancel a registered mark with the TTAB.

Where the cause of action is before a federal court in a trademark infringement proceeding, fraud claims may result in invalidation of a registered mark.  Also, the defendant in a trademark infringement lawsuit may have possible false advertising claims against the mark owner who has knowingly misused the circle R symbol and a possible unclean hands defense especially when the plaintiff’s misuse of the circled R symbol is accompanied by a bad faith intent to deceive.

Generally, fraud claims must be alleged with particularity whether the matter is before the TTAB or a federal court.   Fraud claims are not easy to prove because of the requisite intent requirement as it pertains to deceiving of the public.  The Federal Circuit has held that how quickly a trademark owner corrects misuse of the registration symbol after learning of the misuse, will impact the determination of whether the trademark owner is charged with an intention to deceive the public.  Therefore, trademark owners should periodically review the presentation of their marks to the public to ensure that the proper trademark symbol is being used.

Example: A website designer is told that the owner of the website has a trademark or service mark. The website designer, thinking that the mark(s) is registered, uses the circled R when the appropriate symbol was the TM or SM.   The mark owner should ensure that the circled R symbol wherever used on the website is removed and replaced with the appropriate TM or SM symbol until when and if a registered mark is secured.

In conclusion, to avoid any unpleasant legal surprises resulting from the misuse of the circled R symbol, just don’t use this symbol unless the mark is listed as a registered mark according to the public records available at www.uspto.gov.   And then use it only with the mark owner’s goods and services specified for the registered mark.

WE HOPE YOU FIND THE ARTICLE INSTRUCTIVE. HOWEVER, THE INFORMATION PRESENTED IS NOT LEGAL ADVICE AND IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY.

 

© Troy & Schwartz, LLC 2019

Where Legal Meets Entrepreneurship™

 

 

 

 

 

 

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Jun
03

Trademark Registration Pitfalls: Not Understanding that Certain International Classifications of Goods/Services Are Considered Closely Related by the USPTO for Section 2(d) Rejection Purposes

A company wanting to protect its brand identity and thereby enhance its valuation generally seeks federal registration of its trademark/service marks which may include names, logos, and slogans.   In applying for a mark that is “close” to an already registered mark, applicants sometimes make the mistake that the examining attorney will not find a likelihood of confusion if the applicant’s mark involves a different international classification (IC) of goods/services from the registered mark’s specified IC(s).

This assumption is incorrect.   Sometimes applied-for marks that are deemed by the USPTO’s examining attorney to convey a similar commercial impression with an existing registered mark will be denied registration even if the two marks do not involve the same international classifications of goods/services.   One of the determining factors is whether the specified international classes involve closely related goods/services.  Thus a registered mark for IC class 030 (e.g., pizza as a food product) and an applied-for mark for IC 035 (restaurant services) may be found to involve related goods and services that could result in a likelihood of confusion as to the provider of the pizza food product/restaurant services.

Similarly, IC 025 for clothing is a class that the USPTO routinely finds overlaps with other IC classes, particularly jewelry (IC 014), purses (IC 018), and eyewear (IC 09). The “clothing” applicant will generally not prevail if the examining attorney can provide evidence that a single entity is likely to offer for sale both clothing and complementary items such as jewelry, purses, and eyewear.  For example, in In re Manja Studio SDN BHD (May 17, 2019), the Trademark Trial and Appeal Board (TTAB) affirmed the rejection of the applicant’s mark for clothing, finding that the applied-for mark was likely to cause confusion with an existing similar registered mark for watches.    The rejection was affirmed even though that applicant’s mark was for relatively inexpensive “T-shirts, outerwear, and hats” while the registrant’s mark was for “luxury designer watches.”

Take Home Points:

The trademark registration is not as simple as it seems.  Many factors can enter into the calculus.  An experienced trademark attorney can help identify pitfalls upfront.  Sure, an applicant can appeal a rejection to the TTAB but statistics show that the TTAB affirms about ninety percent (90 %) of likelihood of confusion rejections.  Besides, appeals are expensive.  Why spend money on the process if there is a solid chance of rejection?

If you are considering filing a trademark application with the USPTO or have encountered trademark registration problems, contact the commentator to discuss your trademark registration questions and learn about our reasonable legal fees for prosecuting trademark registrations on behalf of clients both in the U.S. and abroad. Clients’ applications are handled at all stages by an attorney and all clients are advised upfront of potential registration issues.

 

WE HOPE YOU FIND THE ARTICLE INSTRUCTIVE. HOWEVER, THE INFORMATION PRESENTED IS NOT LEGAL ADVICE AND IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY.

 

© Troy & Schwartz, LLC 2019

Where Legal Meets Entrepreneurship™

 

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