Category Archives: Legal Advice
What are the Elements of a Trademark Infringement Claim?
When a competing business is using an established trademark or a confusingly similar one, that business is engaging in unlawful trademark infringement. Because branding is such an important part of a business’ identity to consumers, the law provides a venue for trademark owners to seek recourse against infringers. A trademark owner who believes its trademark is being infringed may file a civil lawsuit in either state court or federal court for trademark infringement, depending on the circumstances. In most cases, trademark owners choose to file federal infringement cases. To support a trademark infringement claim in court, the trademark owner must prove:
1) that it owns a valid mark;
2) that it has priority (its rights in the mark(s) are “senior” to the defendant’s rights); and
3) that the defendant’s mark is likely to cause confusion in the minds of consumers about the source or sponsorship of the goods or services offered under the parties’ marks.
When a plaintiff owns a federal trademark registration with the United States Patent and Trademark Office, there is a legal presumption of the validity and ownership of the mark, as well as of the exclusive right to use the mark nationwide on or in connection with the goods or services listed in the registration, which simplifies the owner’s burden of proof in infringement cases.
What Factors do Courts Consider in Determining Whether Infringement has Occurred?
Courts will typically consider evidence addressing various factors to determine whether there is a likelihood of confusion among consumers. The key factors considered in most cases are:
1) the degree of similarity between the marks at issue; and
2) whether the parties’ goods and/or services are sufficiently related that consumers are likely to assume (mistakenly) that they come from a common source.
Other factors courts may consider include: a) how and where the parties’ goods or services are advertised, marketed, and sold; b) the purchasing conditions; c) the range of prospective purchasers of the goods or services; d) whether there is any evidence of actual confusion caused by the allegedly infringing mark; e) the defendant’s intent in adopting its mark; and f) the strength of the plaintiff’s mark.
Remedies for Trademark Infringement
If the trademark owner is able to prove infringement, available remedies include the following:
1) a court order (injunction) that the defendant stop using the accused mark;
2) an order requiring the destruction or forfeiture of infringing items;
3) monetary relief, including defendant’s profits, any damages sustained by the plaintiff, and the costs of the action; and
4) in rare cases, an order that the defendant, pay the plaintiffs’ attorneys’ fees.
If you believe someone is infringing your trademark, an experienced and dedicated trademark attorney has the tools to stop this unlawful behavior.
With most of the marital assets in his ex-wife’s name, Harry Macklowe was forced to sell prime Manhattan real estate to pay off his debt. The couple is now clashing over control of a one-billion-dollar art collection. Towson divorce lawyers ask how could a couple with so many assets neglect to protect themselves with a prenuptial agreement?
Prenuptial agreements are invaluable for protecting the livelihood of both spouses entering marriage, especially in cases wherein the stakes – or assets – are high. Divorce is rife with emotion – even when both parties agree it is the best option. When feelings are running high, and ex-spouses react out of anger and pain, pre-nuptial agreements can help dissolve assets equitably.
What is a Prenuptial Agreement?
A prenuptial agreement is a contract made by a couple before they marry, addressing the division of their assets and other financial concerns should the marriage end. The foresight a prenup provides can eliminate long and painful litigation if the marriage does not work out. Prenuptial agreements are private contracts drafted by attorneys, enforceable in court.
For couples who maintain a variety of valuable assets, the divorce process may be more complicated than usual. High asset divorce attorneys need to dig deep to determine if assets existed before the marriage or were acquired afterwards. Alimony will be determined based upon what each spouse contributed to the partnership. Even though one spouse may have brought in more income, the other may have contributed and supported the other by being an exceptional homemaker.
When high asset divorces involve a great deal of expensive properties, vehicles, and other assets, the costs involved in maintaining those should be considered. Spouses that lobby for vacation homes, for example, should be prepared to pay mortgage, tax, and maintenance fees on them. Divorcing couples need to be realistic on how their lifestyle might change after their marriage ends.
The key to a satisfactory outcome in a high asset divorce is how you approach it. Acting out of anger and resentment can alienate your ex-spouse and drag the process out longer than necessary. Having a prenuptial agreement in place makes the process less complicated.
These orders are called by different terms in different jurisdictions. Some call them restraining orders. Others refer to them as no contact orders. In any event, the protective orders are orders made by a state court that instruct someone not to harm another. If the person violates this order, he or she may face substantial legal consequences.
What Protective Orders Guard Against
Protective orders are requested in cases involving domestic violence. A protective order may be issued when domestic violence occurs. This can include physical violence such as hitting, punching, kicking or slapping. It may also protect someone when sexual assault has occurred. Other conduct that may justify a protective order includes restraining the victim, falsely imprisoning someone, stalking or harassment.
Requirements for a Protective Order
In order for a victim of domestic violence to receive a protective order, he or she must establish an imminent threat of danger. Additionally, there must be some relationship specified under state law that justifies a domestic violence protective order. State law may define the necessary relationship as being one between current or former romantic partners, family members, individuals currently or formerly living in the same residence or co-parents of a child.
Factors Courts Consider
When determining whether there is an imminent threat of harm to justify the issuance of a protective order, the court considers a number of factors. One important factor is the history between the alleged abuser and victim and any previous history of violence, stalking, harassment or threats. Another factor that may be considered is whether the alleged abuser has a previous history of harming the victim’s family, friends or others close to him or her. Other history of violence or threatened violence can be considered such as threats to kidnap the victim’s children, violence against a family pet, threats regarding the use of a weapon or other protective orders that were issued against the alleged abuser even if the victim was someone else. The court may also consider any other criminal record and whether the alleged abuser has stopped the victim from ever calling to notify the police of the abuse. The court may consider other factors that it believes are important in determining whether there is a current need for this legal order.
Individuals who are victims of domestic violence may choose to consult with a lawyer to learn about ways that they can protect themselves. Protective orders can be much needed mandates to protect the life and safety of the victim and his or her family. They can play a critical role in family law cases.
Individuals who believe that they have been falsely accused and receive notice that a protective order is being sought against them may choose to contact a criminal defense lawyer. He or she can refute the allegations made against the defendant and challenge any proof used against him or her to protect the individual’s rights.
Functions of a Protective Order
A protective order serves a variety of functions. Its most basic mandate is for the named abuser to stay away from the victim’s place of residence and place of employment. It prohibits any type of direct contact from the alleged abuser, such as in-person contact, phone calls, mail, email, social media contact or other immediate forms of contact. It can also prohibit contact through a third party.
Additionally, the protective order can address domestic issues. If the parties share a home, the protective order can instruct the alleged abuser to vacate it. He or she may have an escort who assists him or her remove their belongings from the home. If the victim and the alleged abuser have children together, there may be temporary provisions regarding the children, such as an order for child support, a prohibition of visitation between the alleged abuser and the children or an order that any visits be supervised. The order may also order spousal support.
If the protective order is made permanent, it may include additional safeguards and instructions, such as banning the alleged abuser from having a firearm or ammunition in his or her possession. If the alleged abuser violates any order contained within the legal mandates, he or she may face additional civil or criminal penalties, up to and including jail time.
When your marriage becomes unviable and you start contemplating a divorce, only divorce attorneys in Fort Worth have the wherewithal to help you navigate those stormy waters. Even though this is an expensive undertaking, you want to get divorce lawyers that can work within your budget. There are a few steps you can follow to increase your chances of landing a good divorce attorney:
Be realistic: Some people may think that settling without involving divorce attorneys in Fort Worth and avoiding paying high fees involved would be the easiest way to deal with a failed marriage. However, being in such a civil matter such can be quite tricky; try and see whether you and your spouse can accept an out of court agreement. The more willing the two of you willing to compromise, the faster and easier the process will become. However, you shouldn’t accept to t be pushed to forfeit something you believe you are entitled and if all your efforts hit the rocks prepare yourself to hire divorce lawyers in Fort Worth.
Know what you to expect: Get clear from the start of the proceedings what you expect out of yourdivorce attorneys in Fort Worth. Discuss details about property, finances and custody issues with your partner before seeking help. If you feel that your former partner may not respect your legal rights, get the services of a divorce attorney. Divorce attorneys in Fort Worth have a clear understanding the local law, experience in divorce and custody issues, property negotiations and filing court paperwork.
Focus on the goal: Divorce is a tumultuous and upsetting experience that easily degenerates into a spiteful and emotional battle. People often display emotions of anger, betrayal and sadness during the separation period. A divorce attorney helps you must learn to stay focused on your goal as he deals with the negotiations.
Identify at least three lawyers: Looking for divorce lawyers in Fort Worth can be a daunting task; you have to balance factors between your budget and the lawyer’s rates. Start by talking to any of your friends who may have gone through a similar situation to recommend the divorce attorney they used. Make use of online searches and different directories that listing divorce lawyers in Fort Worth before you narrow down to at least three choices from where you will choose.
Research and interview: Visit and interview your potential divorce lawyers in Fort Worth by checking whether divorce cases are their specialty, whether there will be anyone else working on the case, the fees you will be charged and any other additional charges. Find out about their policy for contact and whether you can be allowed to negotiate with your spouse but most importantly, whether they think the judge will rule in your favor.
Statistics show that most of the court cases are won and lost, on the impression that a judge gets ongoing through the appellate. An appellate brief is a legal document presented before the appeals court, clearly stating all the details of a matter and why the stance of the lawyer is true.
The appellate attorney must put forth his side in such a way, that the judge is persuaded to rule in favor of attorney’s argument. Therefore, the question ‘how to write a legal brief’, should ideally be, ‘How to write a legal detail?’ The term appellate brief is ironic in the sense that, it is quite a lengthy document.
Tips to Write an Appellate Brief Effectively
If you are an appellate lawyer, shouldering the responsibility of writing an appellate, there are few details which you need to be particular about. It is both a responsible and a daunting task to write a winning legal argument. Whether the ruling court is a trial court, intermediate appellate court or a supreme court, the legal brief should reflect the genuineness of your cause.
- The first and foremost concern of the lawyer, in the process of writing a brief should be, thoroughness with the case. It is a very crucial input for writing an impeccable appellate brief. The lawyer should be well-versed with the matter, specially if the case has come up after a judgment from the lower courts. A forceful argument mostly depends on your knowledge of the subject
- Mark out all the important issues or certain sensitive points in the argument, that need extreme focus. Make it a habit to research extensively for all the legal concerns. There are many sites and written material available, which can be ultimate guide for writing about a particular part in your argument. Follow interesting cases and refer some outstanding works, to broaden your own view and hence put in a compelling composition.
- While mentioning the minute aspects and making a deep study for the same, always ensure that you do not stray from the legal barriers. The most reliable argument is simply setting the facts straight and simple.
There was an interesting ruling, in one of the American court cases, where both the parties involved in the dispute were quite strong and committed to their side of the argument. The attorney for one side presented the arguments in a very intelligent and effective format, arguing about the validation of his claims. The other side, took an unconventional approach. The lawyer simply put forth all the legal rules and regulations concerned with the issue, elaborately. It was only in the concluding part, that he mentioned how his claims were right in accordance with the detailed provisions of law, as stated earlier. Although, the previous side has forceful arguments in their brief, the latter side won the case, on a simple and clear presentation. The judge made a decision considering all the legal framework laid for the issue and the latter side presented its appellate, carefully in accordance with those clauses, mentioning them in detail.
The conclusion is, that no matter how clever arguments you put forth, it is equally, rather more important to simply adhere to the legalities binding the issue. This is one of the most workable strategies to write a winning appellate brief. However, this may not be the ultimate plan, to work in your favor.
The same approach may not prove effective in other cases. A lawyer who is able to read the situation and the circumstances, which are unique for each case, and interpret the rules guiding them in his client’s favor can write a good appellate. Therefore, writing a good appellate depends on how well you understand the issue, as well as its legal implications.
Make sure you have read and reread the entire appellate to rectify any errors, and have put forth all the points effectively. Also, get proofreading done from trusted assistants or seniors, and hope your work makes for a winning legal brief.
We never say no to an insurance policy, do we? The chances of your house getting burnt or you dying are quite rare, but despite being improbable, don’t you pay a hefty sum towards insurance premium? Then, why not towards prepaid legal service, you may ask. Statistically speaking, the number of times you are going to be sued in your lifetime is surely more than the number of times you’re going to die. So, isn’t a few hundred dollars towards prepaid legal services a good investment, if you’ll be covered against legal issues for the rest of your life? It certainly is, if only you were assured that the legal companies would actually do the work that you are paying them for.
Prepaid Legal Scams
- Scams in the legal issues have been taking place all over the United States with alarming regularity, so it is always good to be a bit cautious. While I’m not discarding the idea of prepaid legal services as an out-and-out sham, there are people out there who are giving this system a bad name.
- Scams may not be illegal, but they may be ripping you off by giving false promises of legal advice and services, but ditching you along the way.
- There have been many reports that suggest that the companies offering the prepaid legal services are not really delivering the goods.
- Scams occur, as the people pay these companies the required amount of money each month, and when the time comes to deliver the service, they become evasive or sometimes even send some non-qualified people along to help you.
- Most people, due to their own ignorance, end up paying a lot more as premiums as compared to what they would otherwise spend as lawyer fees.
- Attorney charges for routine work such as consultation and will preparation are negligible for which the price you end up paying as legal services charges are a lot more.
- At the same time, legal services that are otherwise more expensive, such as court hearings for imprisonment may not be covered in your prepaid plan.
Are you a Victim of a Services Scam?
- Many times, in a bid to appear legally above board, the companies running the scams overdo their part by boasting a ‘large network’ of legal aid providers.
- But, most of the time, no sources are cited out of this ‘large network’. Since they are after your money, they will keep deadlines for registration and fee payment.
If they are unable to lure clients post the deadline period, they will offer substantial discounts.
- Often, there are ‘many lawyers’ working with them, but no profiles are displayed.
- Also, you may spot a fake testimonial when you see one. The internet is filled with such fake testimonials, and they are readily identifiable. But the most appalling mistakes of all are the spelling mistakes these ‘lawyers’ commit on their websites.
- While this idea was started by someone with a seriously noble thought of being able to serve the society, some miscreants have taken it forward and are fooling innocent people and playing with their hard-earned money.
There are some precautions you can take to avoid being a part of these services scams. The first one is to ask yourself the question, ‘Do I really need it?’. How many times are you hauled into court anyway? What are the chances you are going to need expensive legal services? If the answer to the previous question was that you need legal services often, the next thing to think about is, ‘What cost would I incur, if I wasn’t covered?’. Before you subject yourself to a long-term payment agreement, do a bit of analysis. See the prices of legal services and compare them to the premium you are paying periodically. Should all the findings be in place in your opinion, make sure the company you are selecting has a good reputation and name. Make sure that the people who vouch for and work for the company exist.
After all, it is your hard-earned money and you should be able to take the best, most responsible decisions. Do not fall prey to a legal service scam; it’s no use crying over spilt milk.
What Is Drug Trafficking?
Drug trafficking is defined under state and federal law. It involves the selling and distribution of illegal drugs that are defined in criminal statutes. They may include drugs such as steroids, methamphetamine, marijuana, cocaine and other drugs that are sold in large quantities. Even if a person is arrested with only a small amount of drugs in his or her possession for personal use, he or she may still face federal charges for this crime. State law may consider drug trafficking only when larger quantities are involved and classifying smaller amounts as possession charges.
When individuals are found with serious drugs in their possession, certain criminal implications may arise. The United States takes the drug trade very seriously. A defendant may face inflated charges simply for being in possession of certain drugs. He or she may quickly be implicated for this crime even if he or she has no knowledge of the workings of his or her drug dealer.
Penalties of Drug Trafficking
The potential penalties for drug trafficking are quite severe. The punishment is usually based on the type of drug involved and its quantity. It is not uncommon for a person to receive a prison sentence of 20 years for a first time conviction of drug trafficking. A person may also face additional penalties including very large fines, rehabilitation, community service and the imposition of probation or parole. His or her personal belongings may be seized if they are believed to be linked to the crime or received through ill-gotten gains.
Since there are often parallel state and federal crimes when it comes to drug charges, the defendant may find that he or she is charged under both state and federal law. This can happen despite double jeopardy protections. If there is a choice between filing state or federal charges, the federal charges are often brought. This results in the criminal defendant facing minimum mandatory sentencing.
In addition to the criminal consequences of a drug trafficking conviction, a defendant may face many other repercussions. He or she may lose a professional license or CDL. He or she may be barred from pursuing certain types of career trajectories. His or her employment applications may be rejected based on status as a convicted felon. He or she may be barred from going to college or receiving student loans. He or she may also be barred from public housing or other types of housing. His or her professional reputation can easily be ruined by such a conviction.
Defendants who are facing criminal charges for drug trafficking often decide to hire a lawyer of their choosing. They may select someone who has extensive experience in handling drug cases that are tried in state and federal court. In some instances, law enforcement has used an informer who is attempting to avoid his or her own conviction by cooperating with police. A criminal defense lawyer will assess the evidence that is used against the defendant and fight to protect his or her rights. He or she will also challenge the evidence when appropriate.
A criminal defense lawyer can also explain the defendant’s rights so that he or she protects them. He or she may suggest not talking to police or other investigators. Through a careful investigation of the case, a lawyer can determine which defenses most apply to the case and are most likely to be successful in the case.
Filing a Restraining Order
- If you are in potential and immediate danger, call the emergency (911). even in the situation where you are threatened, abused, and/or the matter has ended, call and tell the police that you want to press charges. If at all the case is immediately prosecuted, the court will issue an order of protection immediately.
- Get the family to a safe place and ask for help. People are mostly helpful in such matters and they would assist you in filing a restraining order.
- Approaching the police station would be of help, as the officers there would definitely give more detailed information on how to press charges.
- Call up the local family court (in case of domestic violence) and ask how to file an order of protection. Then, you would need to go to the court and get the requisite documents.
- Next, you would need to fill out the papers properly and carefully. Inclusion of social security numbers, birth dates, date of the incident/incidences of abuse or stalking, witnesses’ names, and if at all there are any evidences, like photographs.
- In the context of a woman being a victim of domestic violence and she has children, the woman can get a restraining order for them as well. If instructed so, sign the papers before a notary. An order of protection against domestic violence can only be obtained during a divorce.
This was mainly in connection with domestic abuse. In case it is something different, you have an option of filing a harassment restraining order.
Filing a Harassment Restraining Order
- Ensure whether you are being harassed in legal terms and if the situation is so critical. An order of restraint can be easily overturned in case you do not have a cause good enough to file the order in the first place.
- Consult a law enforcement officer or an attorney before you file a restraining order about your jurisdiction. The procedure would slightly vary depending upon the area, but there would be forms specifically meant for order of protection. They would have to be filed with a city or county clerk.
- Initially, it would be a Temporary Restraining Order (TRO), having a validity between 5-15 days of filing the order.
- Once the court reviews the order, you can decide if you want to file for a permanent restraining order (PRO). If you want to file for a PRO, it is better to hire an attorney.
- One of the most important things to remember is to avoid and refuse any contact with the restrained party. If you are skeptical about the fact that you need protection, you would jeopardize your wish to turn your TRO into PRO.
- The laws vary depending upon the country you are in, so you would need to be careful about that as well.
Restraining order could prove to be extremely crucial when it comes to your own safety. So if you are facing something like Gillian, and you are sure about that, then do not think twice about putting an order of restraint on the person. Ultimately, your safety is what matters, and being able to live without fear is one of the most important and fundamental rights in the constitution of any country.
As quite a few of us know, Power of Attorney (POA), in civil law system, refers to an authorization to act on behalf of someone, in a business or legal matter. The one who grants the authorization is called the principal or donor, and the one who has been granted the power is referred to as an agent or attorney. There can arise a situation where the principal can change his or her mind, as to who the agent or attorney will be. In that case, having an idea about revoking power of attorney will be helpful.
There a number of websites from where you can download a form for revoking a POA. If you are not too keen on that, you can make your own document or a simple letter. In case you are creating a document yourself, you will have to include,
- your full legal name
- current date
- date when the original power of attorney was put into effect
- the name or names of the people designated as your agent for the original power of attorney.
- statement that you are of “sound mind”
- clear description of your wish to revoke the original document, that is the POA.
Once you are done with the earlier step, you will have to sign and date the document in the presence of a witness. Request the witness to sign on the document, and then add his or her address and the date underneath the signature. You might also have to get the document notarized. You will also have to write ‘REVOKED’ on the original document, at the top and across the text. Then don’t forget to sign and put in the date. Doing this will ensure that the purpose of the document is not misused.
You have to make sure that this document which clearly mentions that the Power of Attorney has been revoked, reaches the concerned government entities – banks, hospital, other offices if at all and the like. So these organizations have to be sent copies of the revoked POA. This too, is a very important aspect.
Last, but not the least, send the person who originally had the POA, a copy of the document saying that his or her power has been revoked. Further, ask that person to give you the papers saying he or she has accepted the revoking of the Power of Attorney.
Some POA Revocation Tips
The above were the basic things regarding revoking a POA. Here is a look at some quick tips related to it.
- There is a common notion and rule, that the POA can be revoked only if the person is mentally sound and competent to do so.
- Each state has its own laws in connection with revoking Power of Attorney. So before you do that, it would be a good idea to get to know about those laws.
- In case something happens to a person granting the POA, be it a general or specific POA, it is considered to be void, automatically.
That’s all! If all this seems difficult to handle, you can always ask for professional legal advice! Whatever you do, please be very very careful about the documentation and the related affairs! Till next time!
Much of the controversy regarding stop and frisk is determining when there is reasonable suspicion. A law enforcement officer may state that a person is suspicious because he or she is highly emotional, appears drunk, is fearful or is angry. Law enforcement officers may also depend on information about the surroundings to explain their reasonable suspicion of the suspect. Such circumstances may include the suspect being present by a crime scene, moving in a suspicious manner or running away from someone. An individual can also be lawfully stopped if he or she matches the description of a wanted felon.
If reasonable suspicion does exist, the law enforcement officer can stop the suspect. Some stops include a show of force, such as the law enforcement officer ordering the suspect to stop and sometimes even physically forcing the suspect to stop. A police officer may also execute a stop by showing his or her authority, such as by displaying a badge, giving the suspect a particular look or using certain demeanor to execute the stop.
A person can be stopped without also being frisked. A frisk consists of a law enforcement officer patting down a subject to determine if he or she is carrying any weapons. The reason for a frisk is to make the law enforcement feel more comfortable so that he or she knows that the suspect will not be able to harm him or her with a concealed weapon. A frisk is also meant to protect the other citizens in the vicinity. A frisk can also be used to detect if a person is carrying drugs. If the law enforcement officer can inherently determine that the item being patted is plainly drugs without having to manipulate the item in any way, the item can be seized. This is based on the “plain feel” doctrine.
A frisk is only justified in certain circumstances, usually in situations in which the encounter may be riskier. For example, a frisk may be conducted when the law enforcement officer believes the suspect is armed and dangerous or is concerned about his or her own safety or that of others. A frisk may also occur when an officer does not have backup. The law enforcement officer may also be able to justify a frisk based on certain factors when considered together, such as the number of suspects, the size of suspects, how the suspects are behaving, appear or how their emotional state appears, evasive answers given during the stop, the time of day or the area where the stop is made.
Problems Associated with Stop and Frisk
The primary concern regarding stop and frisk is that it may be abused by law enforcement officers to complete unconstitutional searches. Individuals who have been subjected to a stop and frisk and believe that their rights were violated may choose to contact a criminal defense lawyer to learn about their options and their rights.