Florida Civil Liability for Recording Telephone without Consent

In Florida, in addition to criminal liability, one who illegally intercepts, discloses, or uses ones wire, oral or electronic communication can be civilly liable for money damages to the one recorded.

In Florida, it is necessary to first obtain the consent to record a phone call with another. The actual crime is committed from the recording of the telephone call, and not from its use. However, it is necessary that the one recorded has a reasonable expectation of privacy in the conversation. If there is no reasonable expectation of privacy, once it is proved that the call was intercepted, the interceptor (or user or discloser) can be liable for:

a) A Declaratory Judgment

b) Actual damages at a rate of $100 per day for each day of violation or $1,000, whichever is higher

c) punitive damages in the case that the violators actions are considered so bad that the violator needs additional punishment

d) the Plaintiff’s Attorney Fees and Litigation Costs.

The statute of limitations for an action under Florida Statute 934.10 is two years after the date when the claimant first had a reasonable opportunity to discover the violation.

Florida Swimming Pool Liability

Given Florida’s yearlong weather, it leads all states in drowning death’s of children under five years old. Florida has laws governing the protection of residential swimming pools. The pool must have a four-feet barrier to prevent children from being able to enter the pool by themselves, the pool must have an approved cover, an exit alarm must be installed in the house to alert the homeowner when a child may have existed the house towards the pool, and all doors with access to the swimming pool must have a self closing locking device. Failure to take these precautions is a second degree misdemeanor in Florida.

Even worse, the pool owner can be subject to a wrongful death or personal injury case for their negligence in failure to protect against drowning. Children are naturally attracted to pools, making them what is known as an attractive nuisance. The attractive nuisance doctrine states that homeowners can be liable if a trespassing child enters onto their property due to the intrigue of the swimming pool. Under the doctrine it needs to be shown that:

1) The object (pool) needs to be located where a child is likely to trespass.

2) the owner knows that the object could cause harm or death to a child.

3) because of their age, the child is unaware of the risk of the object.

4) the cost to the owner to protect against the risk (installing a fence) is slight compared with the risk to a trespassing child.

5) the owner fails to use reasonable care to protect against the danger.

Further, given the statutes governing swimming pools, an owner can be found to be negligent per se, which requires a jury instruction stating that if the owner violated the statue they should be found to have been negligent.

Florida Dog Bite Law

Keep your dog on a leash. In Florida you can be held strictly liable if your dog bites another person. The Florida Statute on dog bite law is listed below:

767.04 Dog owner’s liability for damages to persons bitten.—The owner of any dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owners’ knowledge of such viciousness. However, any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person’s negligence contributed to the biting incident. A person is lawfully upon private property of such owner within the meaning of this act when the person is on such property in the performance of any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States, or when the person is on such property upon invitation, expressed or implied, of the owner. However, the owner is not liable, except as to a person under the age of 6, or unless the damages are proximately caused by a negligent act or omission of the owner, if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words “Bad Dog.” The remedy provided by this section is in addition to and cumulative with any other remedy provided by statute or common law.

If you have been bitten by a dog you have four years to bring a lawsuit, though it is important to retain an attorney immediately to document your injuries and organize your case.

Once you file a lawsuit for a Florida dog bite, the defendant has two defenses, other than the statute of limitations of four years, to your lawsuit. The first is that the owner of the dog was also a cause of the dog bite, such as failure to keep the dog on a leash. If this is the case, a jury will apportion the fault between the plaintiff and defendant by percentage – e.g. the dog owner was 60% at fault and the bitten individual was 40% at fault. Therefore, the recovery of damages by the bitten individual will be reduced by 60%.

Another defense is that the person bitten was trespassing on the dog owners property. If the bitten individual was trespassing was trespassing on the dog owner’s private property, the dog owner might be able to assert this as a valid defense.

Under the Florida Statute, even if the dog owner had no reason to believe that the dog might be dangerous or bite, the owner can still be held liable for the actions of the dog.

As a side note, in Miami-Dade County, it is illegal to own a pitbull or similar breed of dog. Those discovered to own a pitbull will face a fine and court action to remove the dog from Miami-Dade County.

Choosing your Trademark and Conducting Trademark Search

Protecting your trademark is an important part of your business. Your trademark represents the good will of your business and distinguishes you from competitors in the same industry.

Choosing your trademark – The first step for your business is to research and decide on a name. A trademark is a name that you and the public use to distinguish your business. A trademark can even a sound (IBM) or a color (UPS) or even a smell (the smell of fresh cut grass). When choosing your trademark, the mark should not be generic. A generic mark merely describes the goods or services that your business provides. Generic terms are terms that the relevant purchasing public understands primarily as the common or class name for the goods or services. In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1811 (Fed. Cir. 2001); In re Am. Fertility Soc’y, 188 F.3d 1341, 1346, 51 USPQ2d 1832, 1836 (Fed. Cir. 1999). These terms are incapable of functioning as registrable trademarks denoting source, and are not registrable on the Principal Register under §2(f) or on the Supplemental Register. For example, the name TACO STAND for a a taco stand, or MAID SERVICE for a maid service. Generally a generic mark can never be used as a trademark. Further, even marks which start out as good trademarks can become generic through use. A good example of this is ASPIRIN, which was originally a trademark of the Bayer company. Likewise, ELEVATOR. These marks became so engrained in the conscious of the consumer that they lost the ability to identify the company providing the goods and lost their ability to be trademarks. Now, ASPIRIN is used by all companies.

Likewise, a mark that merely describes the goods or services of your company can generally not be a trademark. To be refused registration on the Principal Register under §2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), a mark must be merely descriptive or deceptively misdescriptive of the goods or services to which it relates. A mark is considered merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services. See In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987) (APPLE PIE held merely descriptive of potpourri); In re Bed & Breakfast Registry, 791 F.2d 157, 229 USPQ 818 (Fed. Cir. 1986) (BED & BREAKFAST REGISTRY held merely descriptive of lodging reservations services); In re MetPath Inc., 223 USPQ 88 (TTAB 1984) (MALE-P.A.P. TEST held merely descriptive of clinical pathological immunoassay testing services for detecting and monitoring prostatic cancer); In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979) (COASTER-CARDS held merely descriptive of a coaster suitable for direct mailing). Similarly, a mark is considered merely descriptive if it immediately conveys knowledge of a quality, feature, function, or characteristic of an applicant’s goods or services. In re Chamber of Commerce of the U.S., 675 F.3d 1297, 1300, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re Bayer Aktiengesellschaft, 488 F.3d 960, 963-64, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007). It is not necessary that a term describe all of the purposes, functions, characteristics, or features of a product to be considered merely descriptive; it is enough if the term describes one significant function, attribute, or property. In re Chamber of Commerce, 675 F.3d at 1300, 102 USPQ2d at 1219; In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004) (“A mark may be merely descriptive even if it does not describe the ‘full scope and extent’ of the applicant’s goods or services,” citing In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 1346, 57 USPQ2d 1807, 1812 (Fed. Cir. 2001)); Gyulay, 820 F.2d at 1218, 3 USPQ2d at 1010; In re Cox Enters. Inc., 82 USPQ2d 1040 (TTAB 2007) see also In re Omaha Nat’l Corp.,819 F.2d 1117, 1119, 2 USPQ2d 1859, 1861 (Fed. Cir. 1987) (rejecting argument that descriptiveness should be limited to a quality or characteristic of the service itself and holding that it includes a designation descriptive of the service provider). A merely descriptive mark. An example of a mark which is merely descriptive would be DIAL-A-MATTRESS, which describes a service whereby you can call the company to have them deliver a mattress. Descriptive marks, however, can become registrable as trademarks if through use and advertising the marks become distinctive in the minds of the public. This is what is referred to as secondary meaning.

The best marks are what are referred to as arbitrary marks, which have no direct relation to the goods or services provided. An example would be APPLE for computers. While APPLE has a common meaning – it is a fruit, it does not in anyway describe computers. Similarly, there are marks referred to as fanciful marks, which are trademarks created only to serve as a trademark, such as EXXON, OR KODAK. These marks have no common meaning, but do serve to distinguish the goods or services of the respective companies.

In the middle of the spectrum would be a suggestive mark; one that merely suggests in the consumers mind what your companies goods or services are. An example of a suggestive mark would be MICROSOFT for software for microcomputers. The name does not directly describe the product but subtly suggests it. Suggestive marks can be registered as trademarks.

Once you have come up with a name, it is then important to insure that no one else is using that name. A good first step would be to search for the name on common search engines such as GOOGLE or FIREFOX. Thereafter, it would be wise to search on state corporation websites, such as SUNBIZ.ORG in Florida. These sites allow you to search for companies using the name. You should also do what is called a knock-out search of the United States Patent and Trademark Office Trademark Database to see if someone has applied for or has registered the name you wish to choose. You can also search for the name as a domain name on various sites including the WHOIS website.

After this, it is important to hire a lawyer to obtain a full trademark search report. Numerous companies provide these reports. The reports consist of all references to the name that are obtained from a wide variety of databases, including those listed above. The attorney would then review the search report and provide a written search report opinion letter describing the likelihood that another individual or company is using the mark. The lawyer will usually couch the report in language such as “no search can be considered completely exhaustive and there may be other marks not revealed by the report which could be used object to your use and registration of the mark”. However, if you get the ultimate ok from the lawyer, it is probably alright to apply for registration of the mark.

The foregoing searches and opinion letter are important. The penalties for using another’s trademark can be serious.Trademark owners can sue you under the Lanham Act for injunctive relief, destruction of your goods and advertising, monetary damages, including all of your profits from using the mark. Attorney fees and costs are also recoverable.

A better mark than a suggestive mark would be

Trademark Law in Cuba

When opening up new top-level domain names, domain name registrars created sunset periods which allowed the owners of well-known trademarks to protect their brands as domain names, prior to the general public being able to register them. Another issue has always been when someone who does not own the rights to a trademark files for the mark in another country. Many countries’ trademark systems differ from the U.S. in that the U.S. recognizes what is called common law use of a trademark where the first to use the mark in commerce becomes the owner of the mark. Other countries follow a first to file system, whereby the first to file for a trademark with the Trademark office becomes the owner of the mark, regardless of who was the first to use the mark. To combat this, many procedures were put in place to make it more convenient for trademark owners to protect their marks in a number of countries at once, such as the European Community Trademark, allowing companies to register their mark in numerous EU countries at once, and the U.S. International Trademark, allowing a mark owner to extend the mark to numerous countries with one filing.

Now with the apparent opening of relations with Cuba, the issue arises of how companies protect their brand in that country, which is a first-to-file a trademark country, versus a country that recognizes that the first to use it should be the owner, regardless of filing with the Trademark Office. There have long been issues with Cuba concerning trademark rights. In 1950, Fidel Castro led a military coup to take over the government of Cuba, and in doing so, nationalized many industries, thereby depriving the owners of the industries of their property and intellectual property rights. Companies such as Bacardi and Cohiba lost their business and their trademarks. Indeed, since 1995 a battle has been raging over the right to use the Cohiba trademark brand. In 1995, General Cigar, a U.S. company, registered the Cohiba trademark in the United States. Cubatabaco sued General Cigar under the trademark Lanham Act in U.S. Federal Court claiming that it owned the Cohiba name as its fame extended into the U.S. and that it had used the mark prior to General Cigar. There have been numerous battles on this case in various courts, and the United States Supreme Court is currently deciding whether to hear the case.

Their are more than 1,000 corporate claims against the country of Cuba by businesses who lost their property. Of all the claims of the U.S. Foreign Claims Settlement Commission against other countries since 1954, all have been resolved against those against Cuba.

Whether Cuba will be willing to pay reparations to these companies remains to be seen in the negotiations. Cuba claims that the U.S. owes it money for the embargo. Many companies may be willing to forego reparation payments in lieu of being able to reap future profits from doing business with Cuba. If these types of claims can be resolved, the issue of the rights to intellectual property and trademark will take the forefront.

In 1995, the U.S. and Cuba agreed on an exception to the trade embargo, allowing companies from each country to register their trademarks in the other country. Therefore, Coca Cola registered their mark in Cuba, but is currently unable to do business with Cuba. However, the time seems right for those wishing to establish their brand’s footprint in Cuba to begin registering their trademarks there with a view to the opening of relations and trade. It is particularly important given the difficulties in either buying out the rights to a trademark “squatter” or filing a cancellation action against the “squatter” to cancel their illegally obtained mark.

It is also being recommended that trademark owners now record their trademarks with U.S. Customs and Border Protection to prevent knock-off items, or gray market goods finding their way from Cuba to the U.S.

Owners of trademark should take immediate action to protect their business for if and when the time comes that they are able to trade in
Cuba.