Consumer Confusion and Trade Name Infringement

I’ve always wanted to invent my own brand of soda called Peepsi! However, I’m positive I’d get a cease and desist letter for trade name infringement from Pepsi before I could screw the cap on my first bottle. Although there is a difference between Peepsi and Pepsi, the consumer confusion would likely turn into a winnable trade name infringement case. Generally, infringing on a business’s trade name comes at the expense of a company’s good will it has established over time, in Pepsi’s case, over a century. So let us discuss consumer confusion and trade name infringement.

mcdowells tshirt coming to america swatch Consumer Confusion and Trade Name Infringement

Consumer Confusion and Trade Name Infringement

In the famous movie “Coming to America” starring Eddie Murphy, John Amos played the role of Cleo McDowell, an entrepreneur who owned McDowell restaurants which eerily resembles McDonalds. In the film, he’s quoted as saying “… me and the McDonald’s people got this little misunderstanding. See, they’re McDonald’s… I’m McDowell’s. They got the Golden Arches, mine is the Golden Arcs. They got the Big Mac, I got the Big Mick. We both got two all-beef patties, special sauce, lettuce, cheese, pickles and onions, but their buns have sesame seeds. My buns have no seeds.” Great fodder for film but in real life this would hardly fly. Specifically, under 15 U.S.C §§ 1051 et seq., also known as the Lanham Act that governs consumer confusion cases, a specific set of guidelines “protects the owner of a federally registered mark against the use of similar marks if such use is likely to result in consumer confusion, or if the dilution of a famous mark is likely to occur.”[1]

Establishing Trade Name Infringement

Typically, in determining whether consumers were unjustly confused to the detriment of an established registered mark, a court will consider seven factors. In consideration of these seven factors, the court uses a balancing test in deciding whether consumer confusion has occurred. The seven major factors a court will use in determining the “likelihood of confusion,”, include (1) the similarity of the plaintiff’s and defendant’s goods or services, (2) the identity of retail outlets or purchasers, (3) the identity of advertising media, (4) the “strength” (for example, inherent distinctiveness) of the trade name, (5) the defendant’s intent, (6) the similarity of the trade names, and (7) the degree of care likely to be used by consumers. [2]

So in our hypothetical case involving Cleo’s McDowell restaurant, first a court will consider the fact that both McDonalds and McDowell’s are in the fast food industry, primarily selling hamburgers, specifically “two all-beef patties, special sauce, lettuce, cheese, pickles and onions.” Being that both entities are selling virtually identical products (minus the seeds), element one will likely go into McDonalds favor.

Second, the court would look at the fact that both restaurants use fast-food outlets to target and serve its customers. If Cleo were operating out of, let’s say a food truck instead of an actual fast-food restaurant, a court might give deference to that fact. However, here, both entities are using similar outlets which would likely serve as another blow to Cleo’s consumer confusion defense.

tumblr looxbh32WG1qdvqkoo1 500 Consumer Confusion and Trade Name Infringement

Third, with regards to identity of the advertising media, presumably McDowell’s advertised primarily through community presence and its logo. As Cleo put it, “McDonalds has the gold arches, while his logo uses the golden arcs.” Here, the logo’s and even the typeface are extremely similar. This form of self-advertising media bears a striking resemblance in both restaurants which would likely land another check in McDonald’s favor.

Fourth, the court would determine the strength of the plaintiff’s own brand. Here, McDonald’s – having been in existence since the 1950’s – would have amassed a significant amount of good will under its brand by now. Though it is unknown how long Cleo McDowell’s franchise has been in existence, it unlikely pre-dates McDonalds.

Fifth, it is unclear that Cleo McDowell’s intent was to purposefully confuse consumers; however a court can and will infer intent by conduct. Specifically, the closeness of the brand, the logo, the type of food sold, the similarity in uniforms and the fact that when Cleo is first confronted by King Jaffe Joffer, he is seen reading a McDonald’s Operation Manual. [3]

Sixth, with regards to the similarity in trade names, a court will take into consideration the use of one’s family name in contrast to an existing trade name. However, courts have held that “the right of an individual to use his or her own name in connection with a business must yield to the need to eliminate confusion in the marketplace.” B.H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254, 1266 (5th Cir. 1971) (“[O]ne may be forbidden to use even one’s own name, absent other distinctions, if the total effect of using it is to create confusion as to source.”) [4] Here, while Cleo used his family name, unfortunately there simply aren’t enough distinctions between the McDowell’s and McDonald’s brand to distinguish the similarities.

mcdowells 2 Consumer Confusion and Trade Name Infringement

Lastly, in establishing the degree of care likely to be used by consumers, all McDonald’s would need to establish is a “likelihood of confusion” arising from the defendant’s use of the same or similar name.” WSM, Inc. v. Hilton, 724 F.2d 1320, 1325 (8th Cir. 1984). [5] This could be satisfied constructively or literally. For instance, if a customer, on any occasion, entered McDowell’s thinking it was McDonald’s, or attempted to use a McDonald’s coupon, or even referred to Cleo’s “Big Mic” as a “Big Mac” when placing an order, it would likely satisfy the last element. [6]

Conclusion

In conclusion, given the totality of the circumstance resulting from the balancing test, a court would likely determine that Cleo’s restaurant is liable for customer confusion and trade name infringement. So remember that while you’d like your product to be recognized by the masses for what it is, there could be serious confusion for what it isn’t. My personal brand of soda, Peepsi, while specific and individual to me, is unlikely to be easily differentiated by a consumer. This causes consumer confusion and ultimately infringes on Pepsi’s established good will. So if you’re contemplating starting the next big burger franchise called Burger Queen, think again about how consumer confusion and trade name infringement.

[1]LANHAM ACT | WEX LEGAL DICTIONARY / ENCYCLOPEDIA | LII / LEGAL INFORMATION INSTITUTE, http://www.law.cornell.edu/wex/lanham_act (last visited Oct 23, 2014)

[2]REMEDIES FOR TRADE NAME INFRINGEMENT, http://www.fwlaw.com/news/189-remedies-trade-name-infringement (last visited Oct 23, 2014)

[3]COMING TO AMERICA – WIKIPEDIA, THE FREE ENCYCLOPEDIA, http://en.wikipedia.org/wiki/Coming_to_America#McDowell.27s (last visited Oct 23, 2014)

[4]REMEDIES FOR TRADE NAME INFRINGEMENT, http://www.fwlaw.com/news/189-remedies-trade-name-infringement (last visited Oct 23, 2014) See Basile S.P.A. v. Basile, 899 F.2d 35, 39 (D.C.Cir. 1990) (limiting right of watch manufacturer to use family name “Basile,” where prior user had obtained trademark over use of the name); Perini Corp. v. Perini Construction, Inc., 915 F.2d 121, 124 (4th Cir. 1990) (limiting second comer’s right to use family name “Perini,” where name had acquired secondary meaning in the construction industry through prior use); B.H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254, 1266 (5th Cir. 1971) (“[O]ne may be forbidden to use even one’s own name, absent other distinctions, if the total effect of using it is to create confusion as to source.”)

[5]REMEDIES FOR TRADE NAME INFRINGEMENT, http://www.fwlaw.com/news/189-remedies-trade-name-infringement (last visited Oct 23, 2014)

[6]Id.

What’s in that End User License Agreement?

EULA What’s in that End User License Agreement?

I recently updated my iPhone to the new iOS and  like any other software update, new service or application there was a lengthy user agreement that required me to click “OK” before proceeding. Not unlike just about everybody else on the planet, I agreed without actually reading the user agreement in order to proceed. It got me wondering, what exactly is this, and more importantly, what’s in that End User License Agreement (EULA) i just agreed to? Unfortunately, the former is easier to answer than the latter. Specifically, an End User License Agreement is a legal contract between a software application author or publisher and the end user of the software. Just to be clear, a contact is a legally binding agreement which creates an enforceable obligation by law, and a license is simply a grant by the holder of intellectual property to another to exercise a certain privilege.

So What the Hells In It?

On the most basic level, an end user license agreement is somewhat similar to a rental agreement where the user agrees to pay for the privilege of using the software. Additionally, in most cases, the end user is also agreeing not to inappropriately copy, alter, or disseminate the software without proper permission. Although, under 17 U.S.C. § 117, an end user is absolutely free to use, archive, re-sale and make backups of any proprietary software he or she has purchased.

More commonly, end user license agreements serve to limit the liability of the application developer in case the software essentially damages your computer, loses your data, or results in your iPhone being “bricked.” Speaking of Apple, it seems to be well settled among actual EULA readers that Apple’s end user license agreements tend to be some of the most far reaching over-broad agreements that exist. For example, Apples EULA for its eBook authoring software contains language restricting an author’s use of any and all content produced using Apple’s software! Huh? Yea, that means Apple essentially dictates what you can and cannot do with your content created by using their software! As Ed Bott noted, “[i]t’s akin to Microsoft trying to restrict what people can do with Word documents, or Adobe declaring that if you use Photoshop to export a JPEG, you can’t freely sell it.”

devil in the details What’s in that End User License Agreement?

Everything but the Kitchen Sink!

Like my mother always said, “the devil is in the details,” however application developers and attorneys alike realize no one is likely to sift through those details which results in EULA’s containing so much content and legal jargon that end users simply won’t bother to read it. Often times a company’s end user license agreement is contrary to existing law. For instance, a EULA that restricts a user to making only one back up copy is clearly inconsistent with the rights granted under 17 U.S.C. § 117. Presumably, the lawyers who draft these agreements are fully aware of these conflicts; however, they choose to be cautiously over-broad than restrictively narrow. Take Apple iTunes end user agreement that prohibits “creating nuclear weapons!” Or other notoriously ridiculous EULA clauses like Google Chrome’s insanely pervasive EULA that essentially gives Google ownership rights over everything up to and including your first born child! Read ” …you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services.”

Click Here and You’re Ours!

Interestingly enough, the creepiness of mysterious end user license agreements appears to be so ubiquitous that the creators of South Park did a skit on the perils of not reading  end user license agreements and the rights you inadvertently relinquish when you “Click Here to Accept!“

Bottom line, unless you’re insanely board or have infinite amounts of time on your hands, chances are you’re unlikely to carve 15 minutes to an hour out of your day to painstakingly analyze EULA’s before enjoying the brand new toy you just downloaded. I would suggest following Ed Bott’s blog who reads EULA’s so the rest of us won’t have to. Additionally, the makers of EULAlyzer have created free software that will scan end user license agreements specifically in search of inconspicuous language which unfairly binds users to unfair terms. Good luck!

Increase Professional Marketability as a Junior Associate

Asia Chronicles HK photo for ATL Increase Professional Marketability as a Junior Associate
Increase Professional Marketability as a Junior Associate

Amid a recent round of layoffs at the mid-level firm I’m employed at, it was brought to my attention that, among those who were laid off, the overwhelming majority did not bring business into the firm. This led me to understand the concept that there are only two types of lawyers, as John Remsen Jr put it, “there are lawyers with clients, and there are lawyers who work for lawyers with clients.” I found myself wondering how not to be the latter, how to bring in clients and increase  professional marketability as a junior associate. I soon discovered, like anything else in life, it requires a bit of hard work and persistence.

Volunteer to Author Your Firms Legal Blog

First and foremost, my personal advice is to learn the coveted art of blogging. Clearly I’m a bit biased, however most law firms, from big to small, have begun to recognize the added benefit of maintaining a legal blog. Studies continuously show that that daily blog updates brings in new clients. If you can establish yourself as a leader in your firm’s blogging and networking in the legal community, you’ll set yourself apart from other associates waiting for work to be handed to them. Offer to author several blogs for your firms’ website, and if your firm doesn’t maintain a blog then you have a surefire way of drumming up some work that you’ll have creative control over.

Specialize in a Niche Practice Area

Next, when it comes to bringing in clients as a junior associate, drill down on a specific practice area you have a passion for. Specializing in a niche area of law can only improve your upward mobility in an emerging field. Start by staying on top of current events, new laws and particular niches within your practice area. By accurately conveying novel legal nuances in your practice area you’ll establish yourself as an emerging expert. You’ll find yourself being that go-to associate for partners involved in your area of interest. They say that reading one hour per day in your chosen field will make you an international expert in just 7 years. Just think what you can achieve by dedicating time to an area you’re already passionate about.

dress for success Increase Professional Marketability as a Junior Associate
Dress to Impress

Dress to Impress and for Success

Seriously, dress the way you would visualize a well-polished attorney dressing. No matter what, humans are visual beings and how you present yourself will go a long way in establishing credibility. As Mr. Remsen pointed out, “very few clients will fault you because you look too nice. Dressing in a suit for work or meetings sends a message of ultimate respect and that you are serious about your business. Your presentation and ‘packaging’ sets a tone.” I’m often accused of being over-dressed at work or asked if I’m appearing in court, my response is usually “dress for the job you want, not the job you have,” followed by how “I’m gunning for the Solicitor General position!” Bottom line, you are your primary marketing platform so make sure you invest heavily in it! For more tips, read how “Lawyers Should Look Like Lawyers” here.

Business Networking Increase Professional Marketability as a Junior Associate
Network to Get-Work!

You Have to Network to Get-Work!

This is probably the most import segment on improving your marketability an improving your ability to bring in clients as a junior associate, so read carefully. Try to actively participate in your states bar association. Specifically, join the bar sections that encompass your practice area, offer to participate in CLE’s, attend meetings, and work towards leadership positions. The Remsen Group suggests becoming board certified in your identified niche area if available in your state.

Create and maintain a networking list. You’ve heard it law school and you’re probably hearing it again in practice, you have to network to get-work! Business cards are meant to be distributed, not collect dust in the box they came in. Quite frankly, if you’re not going through boxes of business cards during your tenure at a firm, you’re doing it wrong! Of course we all want high-end clients who bring valuable business to our firms; however, chances are you’re not going to run into those types of clients at your local hole-in-the-wall pub. Simply put, you need to be where the money is! For example, I popped into an art gallery one evening with a friend to kill some time before another event. There was free wine and hors d’oeuvres so we stayed and was soon approached by a gentleman who introduced himself as the owner of the gallery and artist. A few glasses of wine and several stories later, we’d struck up a genuine affinity towards each others crafts. I would later discover this gentleman was one of the most premier real estate developers in the state! Though he is currently satisfied with the law firm he has, I make it a point to keep in contact, whether it be lunch or a quick phone call just in case. The point is, had we chose to go to Hooters to watch the game; the likelihood of meeting a high value possible client would have been significantly lowered. You have to cultivate great relationships that can potentially transform into great business opportunities. Keep in touch by sending birthday wishes or sharing relevant articles or best practices in the field they work in or connecting via social media.

The New York Bar association noted that, “by developing a book of business as an associate, you can increase your profile at [your] firm and get yourself noticed, while putting some extra money in the bank as well.” The bottom line is that if your firm doesn’t have the funds to sustain your salary then you’ll likely be the first out the door unless you bring in clients as an associate. My firm’s manager emphatically expressed how great the attorneys who got laid off were as people, but sharply distinguished them from other lawyers who brought in their own billing. It’s understandable that not everyone has an extrovert personality or the wherewithal to maintain interpersonal relationships, if so, start with these simple networking tips to overcome shyness.

So if you want to be the lawyer with clients as opposed to the associate waiting for a hand-out, coincide your firms overall success with your success. Make sure to find an area you’re passionate about while keeping your outwardly appearance fresh and clean and most importantly,  don’t forget that you have to network-to-get-work!

Break Your Lease Without Breaking the Law

lease Break Your Lease Without Breaking the Law

We’ve all been there before, when life’s circumstances simply don’t align with your existing contractual obligations. Whether it’s a cell phone or gym membership contract there can be stiff penalties for early termination. However, if it’s an actual rental agreement, knowing how to break your lease without breaking the law will leave you with more options than taking a financial hit over the head like a cell phone plan or gym membership.

Generally, a rental agreement is defined as any agreement, either oral or in writing, between a lessor (owner) and lessee (renter) which gives the lessee exclusive use of the premises for an agreed upon time for an agreed upon price. Simply put, it’s the long packet of documents you initialed and signed when you leased your apartment. However, note that even oral rental agreements are valid if the length of the rental agreement is for less than one year.

LeaseAgreement wide Break Your Lease Without Breaking the Law
Read, then Re-Read Your Lease Agreement

Steps to Take When Breaking Your Lease

As Nicole Schreck pointed out, there are generally three steps you should take when you plan to break a lease. First and foremost, you should thoroughly read through your rental agreement. Many apartments, property managers and landlords alike use generic rental agreements which usually contain similarly generic language. Included in that language is what’s called an “opt-out clause.” Opt-out clauses specifically stipulate what is required to break a lease, what you’ll be responsible for and how much notice should be given to the owner or property manager. Some opt-out clauses require that you give up to two months’ notice to the landlord, owner, or property manager.

Secondly, and the most important step after becoming aware of your changed circumstances and the contractual requirements of the lease is to talk to your landlord and/or property manager. Depending on the relationship you have with your landlord and the exclusivity of the property, they may be willing to work with you in getting the premises re-leased. Often times, where we anticipate a large legal fall-out, good-ole-fashion interpersonal communication can easily resolve a matter. Since the ultimate goal is replacing you as a tenant, communicate with your landlord your willingness in helping to find an alternative renter or sub-lessor.

Lastly, find a new tenant. In many jurisdictions a landlord is responsible for mitigating any financial losses before legally pursuing damages from you as a tenant. Simply put, the landlord cannot let the premises sit vacant while the unpaid rent accumulates then go after you for the unpaid rent. By personally finding a new tenant, you ensure there is minimal vacancy, which in turn, reduces the chances of any adverse action against you as a former tenant. Alternatively, if the landlord is left to finding a replacement tenant, he or she may lease the premises for a lower rate than you leased it for thus allowing the landlord to seek damages for the difference between your original lease price versus the new leased price.

apartment for rent classified ad Break Your Lease Without Breaking the Law
Find a New Tenant

Special Circumstances in Breaking a Lease

There are special circumstances where a lessee can legally break a lease without any legal consequences. Those include (1) inhabitable living conditions, (2) military deployment, and (3) death or incapacity. Hopefully, it’s not for the latter! It should be noted that some leases procured through a real estate agent will allow the lessee the option to place the premises back on the MLS. However, the lessee is still responsible for rent throughout the listing and showing period in addition to the remaining commission owed to the agent which is usually around 6% of the monthly lease rate for the remainder of the lease.

So if life has dealt you some incongruent circumstances that simply aren’t compatible with your contractual obligations, namely the lease you signed, relax, there are options. If you’re fretting over how to break a lease without breaking the law, knowing all your options before making any decisions is key to avoiding unnecessary headaches. Read, then re-read the agreement you signed. Speak candidly to your landlord; explain your circumstances along with your willingness to help avoid any disruption in tenancy. Then personally make an effort to find a replacement tenant.

Are you Required to show ID to Police?

McLovin ID 008 Are you Required to show ID to Police?
Are You required to Show ID to Police?

Are you Required to show ID to Police ? Depends. Generally, interactions between police and the general public fall into three categories: (1) consensual, (2) detention, or (3) arrests.

First, under consensual interactions between a citizen and the police, the individual approached is not required to identify himself or answer any other questions and generally is free to leave at any time. To determine if the interaction is consensual, start by asking the officer if you’re free to leave. Obviously, if the officer answers or acts in any manner contrary to the affirmative, this is not a consensual encounter and a more complex set of rules may apply under the detention or arrest category.

Secondly, circumstances where a reasonable person would not believe he or she is free to leave will constitute a detention. Under Terry v. Ohio, 392 U.S. 1 (1968), the police have the right to briefly detain an individual where a reasonable articulable suspicion exists that the person has, is, or is about to commit a crime. These are known as Terry Stops, and are generally limited to a pat-down to determine if a person is carrying a concealed weapon. However, many states, including Arizona have adopted “stop and identify” laws that require persons detained under Terry Stop like conditions to identify themselves by producing identification or supplying identifying information. We’ll touch on what is required below.

Lastly, while a detention only requires reasonable suspicion of criminal activity, an arrest requires probable cause that a person has actually committed a crime. You’ll likely know whether you’re under arrest when the officer says so, however sometimes a detention can morph into an arrest once the officer has secured probable cause to determine an individual had indeed committed a crime. At that point, the police may lawfully search an individual’s person; belongings and anything within his general “grab area.”

So . . . do I Have to Show My ID to The Police or Not?

States with Stop and Identify Laws Are you Required to show ID to Police?
States with Stop and Identify laws

It depends on which jurisdiction you live in, whether you are operating a motor vehicle, and whether they’ve adopted “stop and identify” statutes. Currently, there are about 24 states that have “Stop and Identify” laws in place, locate your state here. Under Arizona law, specifically, A.R.S §§ 28-1595, 28-3169 the operator of a motor vehicle is required by law to produce identification to a requesting officer during a traffic stop. If you’re driving a car on Arizona public roads you have constructively consented to supplying ID to police upon request. Failure to do so will result in a class 2 misdemeanor.

If You’re Not Driving a Car

Basically the requirement to show ID to the police upon request will always turn on whether the police have reasonable suspicion that you are involved in criminal activity. You can determine that by simply asking the officer if you are free to leave. If not, then most likely you’re required to show ID to the police upon request. The same applies whether you are a passenger in a car, or whether you are walking down the street. In the former, the police must reasonably suspect you are involved in either a traffic or a criminal violation to require you to show ID upon request. If you are walking down the street and the police reasonably suspect you have committed either a criminal or municipal violation they may lawfully require you to show ID to police upon request.

Here, Arizona ID requirements, under A.R.S § 13-2412, stipulates that by refusing to provide a truthful name when lawfully detained will constitute a class 2 misdemeanor. Be aware that you are only required to give your name and/or ID, and are not compelled to answer any other questions by an officer.

The Bottom Line

Bottom line, there are two ways to determine whether you are required to show ID to the police; (1) if you’re operating a motor vehicle, the answer is always yes, and (2) if you’re reasonably suspected of committing a traffic, municipal, or criminal violation the answer is yes. Again, the most simple way of determining this is by simply asking the officer politely “am I free to leave?” even if you are a passenger in a car. So the next time you question whether you are required to show ID to the police, determine whether the encounter is consensual, a detention, or an arrest before refusing to do so in order to mitigate further trouble. Check out this great clip provided by FlexYourRights.org that recaps our discussion.

Note – the aforementioned article, rules, and laws are in no way presented to constitute legal advice. Nor are they meant to apply to any set of specific facts pertaining to your circumstances.

Who Really Owns that Picture You Don’t Want Anyone to See?

selfie Who Really Owns that Picture You Don’t Want Anyone to See?
Who Really Owns that Picture You Don’t Want Anyone to See

Who Really Owns that Picture You Don’t Want Anyone to See? In the wake of the recent iCloud private celebrity pictures posted on 4chan, an image-based bulletin board, let us discuss the true ownership and recourse of posting pictures you don’t want anyone to see. Generally, under United States Copy Right law, the owner of a photograph is classified as the person who took the picture. Along with that ownership, comes certain rights to the photograph. Specifically, under U.S Copyright Act at 17 U.S.C 106, the owner has the right to (1) reproduce the photograph, (2) prevent any derivative works based on the photograph, (3) distribute copies to the public by sale, lease or lending, and (4) display the image to public.

So if the picture you don’t want anyone to see is the result of a “selfie” then you have the sole right to prevent any unauthorized distribution, public viewing and display of your work. However, on the other hand, if a third party took the picture, even with your camera, technically they would be considered the true owner of the picture you don’t want anyone to see. As a result, they could potentially release, transfer, lend, or display to the public the picture you don’t want anyone to see.

If You took the Picture You Don’t Want Anyone to See

Under the Digital Millennium Copyright Act (DCMA), enacted in 1998, there exists what’s called a “Safe Harbor” provision. The “safe harbor” provision allows the owner (you) of pictures you don’t want anyone to see, the ability to issue a takedown notice to digital content platforms such as Reddit, YouTube, FaceBook, etc. to remove the content you’d like to prevent anyone else from viewing. A digital content provider could be found contributorily liable for copyright infringement if they do not quickly adhere to your takedown notice.

If You Didn’t Take the Picture You Don’t Want Anyone to See

Paparazzi Who Really Owns that Picture You Don’t Want Anyone to See?

Well, unfortunately, you fall under the distinct legal category of S.O.L, and I’m not talking about statute of limitations. There may be some alternative legal recourse such as intentional infliction of emotional distress, or invasion of privacy, however strong affirmative defenses exist to these claims lending to costly litigation. Bottom line; know who you’re engaging with when it comes to sensitive photographic subject matter. Not everyone will have your best interest at heart when things turn for the worse. If you must take pictures you don’t want anyone to see, enjoy the pictures for the time being, then destroy them would be the best advice I could give.

Attorney Fees, First Step in Preventing Prosecutorial Misconduct

Awarding attorney fees for criminal acquittals would be a first step in preventing prosecutorial misconduct. For instance, in a the State of Washington, there exists little known statutory and case law stipulating that if a person is unsuccessfully prosecuted by the state, where a claim of self-defense is asserted, the state must reimburse the defendant for reasonable cost incurred.

Specially, the Revised Code of Washington statute 9A.16.110 states that ; when a person charged with a crime listed in subsection (1) of this section is found not guilty by reason of self-defense, the state of Washington shall reimburse the defendant for all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in his or her defense. RCW 9A.16.110 Furthermore, case law interpreting the statute held that “when a jury acquits a defendant and finds that the defendant acted in self-defense, the State must pay for post-acquittal fees and costs reasonably incurred in the trial or appellate courts.” STATE v. DUGAN, July 1999 96 Wn. App. 346

attorney fees Attorney Fees, First Step in Preventing Prosecutorial Misconduct

Given the abundance of wrongful convictions; based on new evidence, DNA testing, and even prosecutorial misconduct, Washington State’s obscure rules raise interesting questions on why this isn’t allowed in all general criminal cases. Well settled civil recourse allows a prevailing defendant in frivolous civil litigation the right to sue the opposing party for legal fees. Consequently, however, no such remedies exist in criminal cases. Generally, prosecutors enjoy free range with unlimited immunity when prosecuting criminal cases. So much so, only once in the history of the criminal justice system has a prosecutor ever been convicted of wrongful prosecution. Even there, convicted prosecutor Ken Anderson, who wrongfully prosecuted the case of Michael Morton by hiding exculpatory evidence, was only sentenced to 10 days in jail. Though in addition, he was required to relinquish his license to practice law, Anderson was 61 years old, well on his way to retirement. Hardly analogous to the punishment Mr. Morton received who served over 20 years in prison before being exonerated. With so little motive for deterrence, coupled with career aspirational goals of high prosecution rates, many prosecutors proceed with cases knowing full well they would have little chance of a jury conviction aware that 97 percent of federal cases and 94 percent of state cases end in plea bargains.

tumblr lyq70qxcJ51qg31ik Attorney Fees, First Step in Preventing Prosecutorial Misconduct

To be clear, prosecutorial misconduct is defined as “an illegal act or failing to act, on the part of a prosecutor, especially an attempt to sway the jury to wrongly convict a defendant or to impose a harsher than appropriate punishment.” Take Brooklyn, New York for example, where USA Today reported that in just six months of observation, seven people were exonerated after prosecutorial misconduct was discovered. The California Innocence Project reported that in wrongful conviction cases, “prosecutorial misconduct was a factor in from 36% to 42% of the convictions.” Since prosecutors have little or no fear of consequences, many continue to prosecute criminal cases at their own discretion, having only their conscious as a benchmark for integrity. However, there are steps we can take to remedy the seemingly “too big to fix” criminal justice system.

prosecutorial misconduct angela corey Attorney Fees, First Step in Preventing Prosecutorial Misconduct

REMEDIES

There needs to be some form of consequential repercussions for irresponsible prosecutors. Legislation is the only tool that can reign in rampant prosecutorial misconduct. First, a good start would be expanding cases where the state would be liable for attorney fees where a defendant is acquitted. Modeling legislation after Washington States self-defense laws, a number of jurisdictions can at the very least give innocent defendants one less reason to plea. Second, increasing the likelihood of criminal prosecution for prosecutorial misconduct would be a deterrent. As noted above, the 10-day sentence of convicted prosecutor Ken Anderson, certainly would not strike fear into the heart of an over-zealous prosecutor, however it would make him or her think twice.

In addition to statutory fee reimbursement and prosecutorial convictions, jurisdictions would be well served by establishing special conviction review units such as the one expanded in Brooklyn. “The practice of naming a special unit dates back to 2007 when Dallas County, Texas District Attorney Craig Watkins started his Conviction Integrity Unit. Since then, the unit has reviewed more than 1,000 cases and exonerated 33 people. Watkins said 90 percent of the exonerations his office has done involved witness misidentification using a photo lineup.” Even a 3 percent wrongful conviction rate is excessive. The government should always have a higher duty of care when potentially infringing upon a citizens liberty interests. Simply put, more needs to be done to address the community’s distrust of law enforcement and the ubiquitous sentiment that innocent people going to jail is a natural consequence of our flawed criminal justice system.

CONCLUSION

Dred Scott Case Attorney Fees, First Step in Preventing Prosecutorial Misconduct

In conclusion, more needs to be done to change the attitude of both law enforcement and the general public. If ten guilty people must go free to avoid the incarceration of just one innocent person, then so be it. This country was founded upon the substratum that its citizens shall enjoy freedom, liberty and justice for all. However, given the fact that so much prosecutorial misconduct errs against minorities it would seemingly appear the majority opinion in, Dred Scott v. Sandford, 60 U.S. 393 (1857), stating that people of color “had no rights that the white man was bound to respect” may still ring true till this day.

Digital Estate Planning in a Digital Age

Digital Estate Planning in a Digital Age

digital assets Digital Estate Planning in a Digital Age
Don’t get locked out of digital assets

In more recent history, a news story circulated through social-media spheres involving a lawsuit by Bruce Willis against Apple Inc. involving his right to transfer ownership of his vast iTunes collection to his heirs. Though the story was debunked by his representatives, it raised an interesting dilemma surrounding the ownership of digital assets and the transferability of those assets posthumously. Digital estate planning in a digital age has become increasingly relevant.

In our increasingly digital world there is a greater need to protect the digital assets we increasingly amass over time. Digital content is referred to “any information that is published or distributed in a digital form, including text, data, sound recordings, photographs and images, motion pictures, and software.” [1] Digital assets include such digital content as one’s online persona, passwords to the likes of Facebook, Twitter, Linked In, and blogs. [2] Currently, there are only five states that have laws governing digital estate planning. [3] As a result, an overwhelming majority of jurisdictions lack statutory guidelines governing digital asset bequeathment leaving loved ones lacking legal recourse. Traditional estate planning plays a major role in protecting both tangible and intangible assets alike, however has been slow to evolve with emerging technology.

Traditional Estate Planning

traditional estate planning Digital Estate Planning in a Digital Age
Digital & Traditional Estate Planning

Essentially, one’s estate amounts to anything a person owns, tangible or intangible. Traditional estates are defined as a person’s interest in land or other property. [4] Generally, a person’s estate consists of traditional assets defined as items that are owned and have value. [5] Accordingly, traditional estate planning primarily involves the posthumous disposition of property typically involving a three step process. [6] First, there is a consultation to consider an individual’s present and lifetime needs. [7] Second, and most importantly, a thorough plan designed around meeting those needs during the client’s lifetime. [8] Last but not least, traditional estate planning involves the creation of a unified estate plan, which balances the client’s needs during his/her lifetime with the needs of his estate after death. [9] Nonetheless, our increasingly digital world has created a whole new class of assets that traditional estate-planning tools may not be equipped to handle, including the ability to legally transfer a decedent’s ownership of digital assets. As such, digital estate planning in a digital age is evermore important.

Digital Estate Planning

 Digital Estate Planning in a Digital Age
Digital assets include online persona’s

Digital estate planning not only promotes alienability of ownership, but it also:

  • Makes life easier for the estate’s executor and family members.
  • Impedes identify theft.
  • Protects decedent’s intellectual property interest.
  • Preserves a decedents digital legacy [10]

Currently, there is no standard to bequeath ones digital estate, however digital estate planning can be something as simple as executory guidelines constituting a letter to one’s executor listing important URLs, usernames, passwords, security codes, and other information needed to access online accounts. [11] Since one of the most common forms of digital assets is licenses which are fully transferable within a trust, author Joseph M. Metrek suggests providing clients with a “Digital Asset Revocable Trust” (DART). [12] Essentially, the DART, like a traditional trust, will retain ownership of digital assets beyond the life of the grantor. Therefore, a trustee would have the authority to manage and transfer authorizing licensing agreements to a client’s heirs based on the needs established when the estate was created.

In addition, an executor or fiduciary can mitigate the amount of personal hardship and grievance associated with digital estate planning by following a simple set of guidelines. [13] Experts recommend fiduciaries implement the following crucial steps when administering a decedent’s digital estate:

  • Seek the assistance of technical help if necessary.
  • Work on consolidating virtual assets to as few “platforms” as possible (e.g. have multiple e-mail accounts set to forward to a single e-mail account.
  • Obtain statements (or data) of the prior twelve months of the decedent‘s important financial accounts.
  • Consider notifying the individual [sic] in the decedent‘s e-mail contact list and other social media contacts.
  • Change passwords to those that the fiduciary can control (and remember).
  • Keep all accounts open for at least a period of time to make sure all relevant or valuable information has been saved and all vendors or other business contacts have been appropriately notified, and so all payables can be paid and accounts receivable have been collected.
  • Remove all private and/or personal data from online shopping accounts (or close them as soon as reasonably possible).
  • The fiduciary should plan on archiving important electronic data for the full duration of the relevant statutes of limitations. [14]
digital assets Digital Estate Planning in a Digital Age
Digital Estate Planning in a Digital Age

Conclusion

Sadly, many will not implement traditional or digital estate plans, leaving their loved ones to sort out unfinished details of their lives. Estate planning traditionally has been a service primarily utilized by the elderly, however increasing awareness among tech savvy clients can reduce the ambivalence towards estate planning. Essentially, digital content owners face two distinct issues; (1) do they really own their online digital content and if so, (2) how can they pass that ownership or the use of that content on to their loved ones. One thing is for certain however, without digital estate mechanisms, such as DART’s or executory guidelines, even the likes of Bruce Willis would not be able to ensure his loved ones were legally entitled to his vast collection of Rob Zombie albums. Digital estate planning in a digital age is essential to pass on one’s legacy.

 

  1. What Happens When We Die: Estate Planning of Digital Assets, http://commlaw.cua.edu/res/docs/21-1/Perrone.pdf (last visited Aug 20, 2014).
  2. Michael Walker & Victoria D. Blachly, Virtual Assets, ST003 A.L.I –A.B.A 177 (2011)
  3. Alissa Skelton, Facebook After Death: What Should the Law Say?, MASHABLE (Jan. 26, 2012), http://commcns.org/10BZYRX. Oklahoma, Idaho, Rhode Island, Indiana and Connecticut have all enacted laws regarding digital estate planning.
  4. BLACK‘S LAW DICTIONARY 626 (9th ed. 2009).
  5. Id. at 134.
  6. Jerome Solkoff, Scott Solkoff, What is elder law—Estate planning -.14 Fla. Prac., Elder Law § 1:3 (2011-12 ed.), FLA. PRAC., ELDER LAW, § 1:3.
  7. Id.
  8. Id.
  9. Id.
  10. Planning for digital assets, http://www.southsidetrust.com/ckfinder/userfiles/files/Planning%20for%20digital%20assets.pdf (last visited Aug 20, 2014).
  11. Joseph M. Mentrek, Estate Planning in a Digital World. 19 Ohio Prob. L.J. 195 (2009).
  12. Id.
  13. Walker & Blachly, supra note 2, at 182-85.
  14. See generally id. at 184-85

 

Preventing Another Ferguson Begins with Greater Law Enforcement Oversight

Since the recent tragic events in Ferguson, MO unfolded, there has been an unrelenting supply of Monday morning quarterbacking from political pundits and social activist alike. Throughout the onslaught of commentary, one overarching theme has been constant, the scaling back of over-militarized local police forces along with calls for greater law enforcement oversight. Although the militarization of local police does pose a threat to law enforcement and community relations, here we focus on the latter. Preventing another Ferguson begins with greater law enforcement oversight.

CAIR Who is policing the police sign Preventing Another Ferguson Begins with Greater Law Enforcement Oversight
Preventing another Ferguson begins with law enforcement oversight

Civilian Police Complaint Review Panels.

Greater law enforcement oversight can manifest in several different ways. For instance, civilian oversight panels with subpoena power to review law enforcement use of force. For example, the city of Houston, by way of executive order by Mayor Annise Parker, implemented a new Independent Police Oversight Board (IPOB) consisting of 29 appointed members reflecting the demographic of the city with unfettered access to all records and police department data. Likewise, the implementation of a Police Ombudsman, defined as “an official appointed to investigate individuals’ complaints against maladministration, especially that of public authorities,” would be ideal in smaller municipalities. Citizen review panels are not only beneficial to the communities to which they serve, but also to law enforcement entities by demonstrating its willingness to address concerns of misconduct at large.

Traditionally, a police department’s internal affairs division is tasked with investigating police misconduct and overreach. However, nationwide, citizen filed complaints alleging everything from civil rights violations to police brutality are substantiated only 8% of the time by internal affairs departments. Specifically, in New Jersey for instance, the Courier News and Home News Tribune revealed that “[j]ust 1 percent of all excessive force complaints were sustained by internal affairs units in Central Jersey, the review found. That’s less than the national average of 8 percent, according to a federal Bureau of Justice Statistics report released in 2007.” Consequently, community faith in the police policing themselves has waned to an all-time low.

Civilian oversight does not have to be limited to complaint review. It can also include recommendations of proactive policy and procedures designed to eliminate distrust in local law enforcement while encouraging mediation wherever tempers would ordinarily be flared. Law enforcement can also expand public awareness concerning proper police protocol and rules of engagement. Civilian oversight should not be deemed as an end-all measure in repairing community relations; however it should be another tool among many in increasing law enforcement oversight, all of which can help achieve the goal of community orientated policing. In addition to civilian oversight, additional measures of supervision and personal accountability can be implemented as well.

Screen Shot 2014 05 08 at 12.44.46 PM Preventing Another Ferguson Begins with Greater Law Enforcement Oversight

 Increasing Law Enforcement Oversight and Safety by the Use of Electronic Body Cameras.

An increasing number of law enforcement departments are implementing the use of wearable cameras that digitally record what an officer sees during the course of their shift. The use of cameras has statistically proven to reduce the amount of citizen complaints and incidents involving use of force. Comparatively, the city of Rialto, California saw its citizen complaints decrease from 24 to just 3 in the first year of use. Moreover, police use-of-force incidents dropped an astoundingly 60% over the course of that same year. The Wall Street Journal reported – by way of the Police Executive Forum –that a quarter of the 254 U.S. Police departments surveyed have begun implementing body camera use. Here in Arizona, the Mesa PD conducted its own internal side-by-side study involving 50 officers equipped with body cameras as opposed to 50 without. The results were positively astonishing, culminating in only 8 complaints involving officers appareled with body cameras versus 23 complaints against those without. However, many municipalities remain in opposition to such measures citing cost and potential witch hunts of officer misconduct. Next, we look at the most cited factors in determining the implementation of body cameras on police officers.

How+to+make+them+behave 51ccdd 4796724 Preventing Another Ferguson Begins with Greater Law Enforcement Oversight
Implementing use of Body Cams greatly reduces use of force incidents
  • Equipment and Cost Considerations

There is a legitimate concern of the cost of data storage associated with recording an officer’s entire shift. Typically, body camera’s range anywhere from $200 to $600 with data storage costs in the range of an additional $600. However, contrastingly, there is an estimated $2 billion spent each year resolving civilian claims which seemingly pales in comparison of the upfront costs of cameras and data storage.

  • Engaging Recordings

Many ask, what prevents an officer from just disengaging his recording device during undesirable civilian exchanges? Clearly it would be ideal to record an entire shift; however, concerns of privacy during breaks from duty and interactions with informants and victims must be taken into consideration. One thing is for certain however, reducing officer discretion of when and what is recorded is absolutely necessary. Nonetheless, the lack of bright line rules of digital engagement would result in creative editing of filmed events. That said, determining policy surrounding when to initiate recordings is best left to municipality council and law enforcement administration in accordance with industry standards.

  • Retaining Data

Considering the length of time video data is retained is crucial to both costs and the ability to effectively investigate alleged incidents. Ideally, retention would remain analogous with existing policy for cruiser dash cams and detention facilities cameras. A recent study by the ACLU, entitled “Police Body-Mounted Cameras: With Right Policies in Place, a Win For All,” suggest that the time frame for retaining data should be limited to the length of time needed to conduct investigations. Despite whatever length of retention is deemed appropriate, public access to the data is paramount.

  •  Privacy

As noted, there are, of course, certain interpersonal and discrete professional interactions which should avoid being recorded. A prospective governing panel, in deciding comprehensive policy guiding camera use, should take into consideration a variety of privacy concerns balanced against the publics need access recorded data. Accordingly, members of the general public should have the right to know that their interactions with police are being recorded. Specifically, under Arizona law A.R.S §. 13-3005, one party recording is permitted so long as whomever recording is a party to the communication and present during the conversation. That said, it would still be helpful to notify the general public of recordings in attempts, at the very least, to positively alter a citizens behavior.

The aforementioned ACLU study also suggests implementing policy that (1) Limits recordings to uniformed officers and marked vehicles, with an exception for SWAT raids or similar planned uses of force involving non-uniformed officers, and (2) Officers should be required, wherever practicable, to notify people that they are being recorded. Furthermore, suggested policy requiring officers to wear easily identifiable conspicuous labels indicating police body camera in use comes highly recommended.

  • Public Access to Recorded Data

In addition to internal agency use, outside entities such as citizen review panels, police ombudsman an anyone else generally entitled access to law enforcement documents and material should be made available. Further, access through such means as the Freedom of Information Act (FOIA) should also be granted to access recorded data in aiding external investigations. One thing is for certain, access to recorded body camera data should be streamlined and readily accessible to prevent cumbersome investigations. In addition, proper chain of custody procedures should be fully implemented to preserve the integrity of recorded evidence.

fort worth pd cams Preventing Another Ferguson Begins with Greater Law Enforcement Oversight
Body camera’s range anywhere from $200 to $600 with data storage costs in the range of an additional $600.

 CONCLUSION

In conclusion, the overarching frustration with inappropriate police/civilian engagement has become glaring. Addressing these issues in a universally communal fashion is a must and can be adequately done so in favor of both; the law enforcement and in the civilian community’s favor. Law enforcement is at its highest authority when acting in accordance with the community in which it serves. Therefore, it would prove abundantly productive to implement accountability measures such as civilian review panels and the implementation of body cameras to solidify the level of trust required in exorcising that authority.