text:
JUDGE(S): Chairman: Dianellos Dianellakis (President of Judges of the Court of Appeal) (Proedros Efeton); Judge Reporter: Georgia Bassiouka (Judge of the Court of Appeal) (Efetis).
The Seller, an enterprise producing textiles having its seat in Germany, agreed to sell textiles to the Buyer, an enterprise of Greece producing men clothing and accessories. The Seller undertook to dispatch the textiles to the Buyer by April 2000 in order for the Buyer to be able to supply products to its customers in the Greek market for the period 2000-2001. The Seller did not supply to the Buyer the agreed textiles in a timely fashion and the Buyer was not able to deliver products to its customers. As a result, it lost the amount of �15,371.59 (a profit expected to have acquired from selling the products under the usual circumstances). The Buyer also suffered mental distress and requested the amount of �10,000 as non-monetary damages. The Buyer claimed from the court the amount of �25,371.59.
The court does not expressly mention whether the CISG is applied by virtue of art. 1(1)(a) or 1(1)(b). It is suggested that the CISG is applicable under both provisions.
- Under CISG art. 3(1), contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production.
- Under CISG art. 7(2), questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.
- Under CISG art. 45, if the seller fails to perform any of his obligations under the contract or the CISG, the buyer may: (a) exercise the rights provided in articles 46 to 52; (b) claim damages as provided in articles 74 to 77.
- Under CISG art. 74, damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.
- Under CISG art. 81, avoidance of the contract releases both parties from their obligations under it, subject to any damages which may be due.
Then, strangely, the court referred to art. 516 of the Greek Civil Code which provides that "If the seller does not perform its obligations [i.e., contractual or legal], the buyer is entitled to the remedies that an obligee is entitled in bilateral contracts and in particular in the event of late performance or inability due to fault of the obligor" and stated that if the seller's non-performance or inappropriate performance result from illegal and intentional (or negligent) act of the seller, then the buyer may claim damages under art. 914 of the Greek Civil Code (liability in tort/non-contractual liability for damages). It is submitted that since the CISG was applicable, art. 516 of the Greek Civil Code did not apply.
The court rejected the Buyer's claim as non-specified (vague) (aoristi) since the Buyer had not specified in its action in detail: (a) the textiles that constituted the subject of the contract of sale; and (b) its customers to whom the Buyer had agreed to further sell the products. Since the action was non-specified (vague) it was not, under the Greek Code of Civil Procedure, eligible for judicial review.

matches:
art. 1
art. 3
art. 7
art. 45
art. 74
art. 81
art. 516
art. 914
art. 516


Posts tagged § 101 / Patentable Subject Matter.
Bob Dylan famously sang that “[y]ou don’t need a weatherman to know which way the wind blows,” and we don’t need a weatherman to tell us that the wind now blows differently at the United States Patent and Trademark Office (USPTO). On January 7, 2019, the USPTO released revised subject matter eligibility examination guidance (“Guidance”), foreshadowed by USPTO Director Iancu last fall. The Guidance is noteworthy both for raising the bar in examination procedure and, we think, for signaling the Office’s intent to rein-in the application of subject matter ineligibility analysis (“lest it swallow all of patent law” – Alice). We anticipate a reduction in subject matter eligibility rejections because the Guidance makes it more difficult for examiners to reject claims as being directed to unpatentable subject matter under 35 U.S.C. §101.
The Court of Appeals for the Federal Circuit revisited the often unclear question of subject matter eligibility under 35 U.S.C. § 101 in Visual Memory LLC. v. Nvidia Corp. In the 2-1 decision, the Federal Circuit reversed the district court’s determination that the claims at issue were directed to an abstract idea.
Defendants in patent litigation frequently mount an invalidity defense under 35 U.S.C. § 101 by arguing that asserted claims are directed to abstract ideas, which are not eligible for patent protection under the first step of the Alice test. Often, these defendants fail to account for significant aspects of the asserted claims, resulting in an oversimplification that doesn’t accurately articulate what the claims are actually directed to. This was precisely the government’s error in Thales Visionix Inc. v. United States (Fed. Cir. 2017), where the Federal Circuit found, contrary to the government’s characterization of the claims (which the Claims Court adopted), the asserted claims were not directed to an abstract idea.
In Zircore, LLC v. Straumann Manufacturing, Inc. (E.D. Tex. 2017), as in many patent litigations since Mayo, Myriad, and Alice, the defendant moved to dismiss the infringement allegations contending that the patents in suit are ineligible subject matter under 35 USC § 101. Here, despite Straumann’s assertion that Zircore’s U.S. Patent No. 7,967,606 was invalid under § 101 as directed to an abstract idea, the court found that the claims were patent eligible under § 101 as directed to a method of manufacturing a physical object.
The Federal Circuit this month issued another decision finding claims to a computer-implemented invention to be patent-eligible under 35 U.S.C. § 101. In Amdocs (Israel) Ltd. v. Openet Telecom, Inc. (Fed. Cir. Nov. 1, 2016), the Federal Circuit held that claims directed to a distributed architecture for collecting and processing computer network data close to its source met the requirements of the Alice/Mayo framework, and therefore recited patent-eligible subject matter.
The Federal Circuit last week handed down the latest in a series of decisions finding computer-implemented inventions to be patent-eligible under 35 U.S.C. § 101. In McRO, Inc. v. Bandai Namco Games America, Inc. et al. (Fed. Cir. Sept. 13, 2016), the Federal Circuit held that claims directed to software for automatically animating lip synchronization and facial expressions of animated characters were not directed to an abstract idea under the first prong of the Alice test, and therefore recited patent-eligible subject matter. McRO joins a growing list of Federal Circuit cases that find computer-implemented inventions to be non-abstract, including DDR Holdings, Enfish, and BASCOM.
In view of the U.S. Supreme Court’s decisions in Alice, Myriad, and Mayo, the United States Patent and Trademark Office (USPTO) has issued a series of guidance documents on patent subject matter eligibility under 35 U.S.C. § 101. These documents are collected on the Subject Matter Eligibility page of the USPTO website. The USPTO’s “May 2016 Subject Matter Eligibility Update” (88 Fed. Reg. 27381), announced the newest in this series of guidance, including new life science examples, a memorandum to the patent examining corps with instructions on formulating subject matter eligibility rejections, an index of eligibility examples, and an appendix of subject matter eligibility court decisions.
Recently the Patent Trial and Appeal Board (PTAB) invalidated three patents held by Audatex North America, Inc. finding that the claims are not subject matter eligible under 35 U.S.C. §101 in view of the Supreme Court’s decision in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S.Ct. 2347 (2014). The three patents were generally directed towards “a method and system for entering data relating to an insurance claim for a damaged vehicle.” In each case, the PTAB sided with the Petitioner, finding that the claims were directed towards the abstract idea of valuing a damaged vehicle based on information about that vehicle and therefore not patent eligible.
The U.S. District Court for the Western District of Washington held, in Recognicorp, LLC v. Nintendo Co. Ltd., et al, that claims to certain methods and systems for encoding/decoding image data are not patent-eligible under 35 U.S.C. § 101. Recognicorp is an illustrative example of the use of preliminary motion practice to dispose of patent cases on the pleadings and of how software-based inventions that are premised on seemingly simple algorithms are particularly susceptible to early dismissal.


Important: the special prizes will be given only for works played in the 1st or the 2nd round and must have a duration of at least four minutes.
§ 19. The special prizes will be awarded only for works played in the 2nd round of the competition.
§ 20. All jury members are required to maintain confidentiality; they must be objective and neutral in their judgement. If any jury member should act contrary to this requirement, the Festival Director reserves the right to remove them from the jury.
§ 21. Jury discussions must be mutually respectful, following the guidance of the Head of the Jury.
§ 22. The Director of the Festival is a member of the Final jury and has the right to vote.
§ 23. The artist, who has the competition named in their honour, is a member of the Final jury. The Festival Director may also appoint him as a jury member for the First and Second Rounds.
§ 24. All decisions of the jury must follow the view of the majority.
§ 25. If the number of competitors exceeds 70, then two juries might be established in the First Round. After the 1st round is completed, the Jury President can decide to call an additional intermediate round. A maximum of 10 competitors will be given the opportunity to perform again their programme from the first round for the complete jury. The number of points received in the intermediate round, will be used to judge if competitors proceed to the 2nd round.
§ 26. Only the German version of these rules are binding.
§ 27. The winners agree to perform in the winners' concert.
Congratulations to the winners and all 6 finalists, and thank you to our 15 Jury members for all their hard work.


On February 22, a divided Sixth Circuit Court of Appeals ruled that it has jurisdiction to hear suits over the joint US EPA and US Army Corps of Engineers’ controversial amendment to the definition of “waters of the United States.” Murray Energy Corp. v. US Dep’t of Def. et al., Slip op., No. 15-3751 (6th Cir., Feb. 22, 2016) (and related cases). The definition of “waters of the United States” (“WOTUS”) establishes the bounds of federal jurisdiction under the Clean Water Act (“CWA”), which has been has been in a state of uncertainty since the US Supreme Courts’ plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). (Additional details regarding the final WOTUS rule are available here). Over a dozen challenges were filed in federal district and appellate courts, owing to uncertainty over which courts (district or appellate) CWA § 509 vests with jurisdiction. The Federal Panel on Multi-District Litigation consolidated appeals filed in the appellate courts in the Sixth Circuit, but declined to consolidate the district court cases.
The Sixth Circuit concluded that it had jurisdiction under CWA §§ 1369(b)(1)(E) and (F), which vest the appellate courts with jurisdiction over challenges to “an effluent limitation or other limitation” and “issu[ance] or den[ial of] a permit,” respectively. The Court acknowledged that the WOTUS rule did not itself constitute a limitation or permit action, but reasoned that the “practical effect will be to indirectly produce various limitations on point-source operators and permit issuing authorities.” Slip op. at 11. The Sixth Circuit found that this indirect relationship was sufficient to confer jurisdiction under the US Supreme Court’s decisions in E.I. du Pont de Nemours Co. v. Train, 430 U.S. 112 (1977), and Crown Simpson Pulp Co. v. Costle, and the Sixth Circuit’s prior decision in Nat’l Cotton Council v. EPA., 553 F.3d 927, 933 (6th Cir. 2009). The decision was split, with Judge McKeague taking an expansive view of Nat’l Cotton and Judge Keith taking a narrower view. Judge Griffin sided with Judge McKeague in finding jurisdiction, but noted he only did so because of the binding effect of Nat’l Cotton.
Industry Petitioners have already filed a petition for rehearing en banc, citing a split in the circuit courts regarding jurisdiction and the conflicting views on the scope and precedential weight of Nat’l Cotton. Multiple State Petitioners similarly filed a petition for rehearing en banc. The petitions for rehearing add yet another layer of complication for cases pending at the district court level, which have been left in a state of uncertainty following the Sixth Circuit’s jurisdictional determination. Only one pending district court case falls within the Sixth Circuit, but one district court outside of the Sixth Circuit has already dismissed its case for lack of jurisdiction following the Sixth Circuit’s decision. See State of Oklahoma v. EPA, No. 15-0381 (N.D. Oklahoma). This ruling, and any others that may follow, will be called into question if en banc review is granted and the full Sixth Circuit finds it lacks jurisdiction.
It is widely expected that the legality of the new “waters of the United States” definition will ultimately be decided by the US Supreme Court. In the meantime, there is the potential that litigation will proceed in both the Sixth Circuit and various district courts in parallel. The potential for a patchwork of conflicting opinions in various jurisdictions will ensure the scope of federal authority under the CWA remains in limbo for the foreseeable future.


§ 129-1 Adoption of standards.
§ 129-2 Copies on file as public record.
§ 129-3 Enforcing agency established; subcode officials designated.
§ 129-4 Organization of enforcing agency; central permit office.
§ 129-5 Duties of Construction Official.
§ 129-6 Duties of subcode officials.
§ 129-8 Right of entry for inspection.
§ 129-9 Notice of violation; order to terminate.
§ 129-10 Violations and penalties.
§ 129-11 Notice of penalty assessment; order to pay; collection.
§ 129-15 Effect on other regulations and previously issued permits.
That certain code known and designated as the "State Uniform Construction Code," P.L. 1975, c. 217 (N.J.S.A. 52:27D-119 et seq.), is hereby adopted as the Construction and Building Code of the Borough of South River, for the control of buildings and structures as herein provided; and each and all of the regulations, provisions, penalties, conditions and terms of the aforesaid documents are hereby adopted and made a part hereof, as if fully set out in this chapter, except where contrary to the additions, insertions, deletions, amendments and changes.
Three copies of the Construction and Building Code adopted by this chapter, with any additions, insertions, deletions and amendments clearly marked, have been placed on file in the office of the Borough Clerk and shall remain on file in such office for use and examination by the public.
An enforcing agency is hereby established in the Borough of South River, New Jersey, as required by the State of New Jersey, P.L. 1975, c. 217, in the Department of Administration of the State Uniform Construction Code Act. The enforcing agency shall be further known and designated as the "South River, New Jersey, Building Department," located at 48 Washington Street, South River, New Jersey 08882.
Construction Official. A new title and position is hereby established in the Building Department of Construction Official, who shall be the Chief Administrator of the enforcing agency, and he shall be certified by the Department of Community Affairs as provided in the regulations. Further, the Construction Official shall be appointed by the Mayor and Council and shall hold such office for a period of four years.
The following subcode officials shall constitute the enforcing agency under the Act: Construction Official, Plumbing Inspector, Electrical Inspector and Chief Combustible Inspector, and their assistants, who are appointed for four-year terms with the exception of assistants or trainees for whom the Commissioner of Community Affairs may establish separate requirements.
The subcode officials as provided in the Act shall be appointed by the Mayor and Council and shall be certified as provided in the regulations promulgated by the Department of Community Affairs. Their appointments are for four-year terms under the Act (P.L. 1975, c. 217, Section 8c; N.J.S.A. 52:27D-126c).
In lieu of the appointment of an Electrical Subcode Official or a contract with an electrical on-site inspection agency, the existing electrical inspection authorities may continue to operate as per N.J.A.C. 14:5-71.1 et seq. until the Borough of South River directly contracts with same, but in no case shall such existing electrical inspection authorities continue after January 1, 1978, except in conformity with Article 36 of the Regulations of the New Jersey Administrative Code. The Plumbing Inspector currently employed by the South River Board of Health shall be removed therefrom and shall assume the position of Plumbing Subcode Official pursuant to the law made and provided therefor and under the terms and conditions hereof.
Nothing shall prevent one person from serving in more than one position for which he is certified and qualified. However, more than one person shall not be appointed concurrently to the same position.
In lieu of any particular subcode official created in Subsection B, an on-site inspection agency may be retained by contract pursuant to N.J.A.C. 5:23.
The Construction Official shall serve as the chief administrator of the enforcing agency. He shall establish the day-to-day operating routines of the agency.
Subcode officials shall enforce the provisions of those subcodes for which they are responsible, in accordance with Part II of the regulations, and for which they are qualified in accordance with Part IV of the regulations and for which they have been appointed by the Mayor and Council. Each subcode official shall be responsible for the administration and enforcement of the appropriate subcode, subject to the Construction Official. However, each subcode official shall have exclusive decision-making authority with respect to the technical provisions of his subcode.
The enforcing agency shall report annually, at the end of each fiscal year, to the Bureau of Housing Inspection, and not later than July 31, the total amount of the surcharge fee collected in the fiscal year. In the fiscal year in which the regulations first become effective, said report shall be for the third and fourth quarters only.
Central permit office. There shall be maintained, under the direction and supervision of the Construction Official, a central permit office at 48 Washington Street. This office shall receive applications for construction permits and plan review; issue construction permits and certificates of occupancy; collect fees, penalties and fines; and issue notices and orders. The office shall be open during normal business hours at times to be determined by the Construction Official.
Schedule of hours and records of Construction Official. The Construction Official shall be available for consultation and discussion during normal business hours at scheduled times to be determined by the Construction Official. All inspections shall take place between 8:30 a.m. and 4:30 p.m. on business days, or while construction is taking place, or in cases of emergency, or with the permission of the owner or his representative. Further, there shall be maintained in this office a central file system for each property in the municipality for which a permit has been issued or requested or for which an action has been taken by the municipal enforcing agency. The files shall contain all information, including inspection reports, correspondence, etc., relevant to each application for a construction permit, certificate of occupancy, variance, and so forth, as may be directed by the Department of Community Affairs and/or the governing body of the Borough of South River, New Jersey. The files shall contain and indicate the storage location of all plans and specifications too bulky for storage in said file, and still further, are public records. The Borough will maintain all files unless the Department shall rule otherwise.
Provide that applications are available and assist the public in preparing the applications, whenever necessary.
Upon receipt of the application, review the application and determine the proper fee for the work required.
Collect all fees and penalties and ensure that funds are properly accounted for.
Review all applications for completeness as to form and for verification of prior approvals. He may request additional documentation concerning prior approvals whenever it is deemed necessary.
Ensure that the proper subcode official shall have an adequate time period to review appropriate applications, plans and specifications.
Ensure that all requests for variation are properly prepared, documented and referred to the appropriate subcode officials.
Issue the construction permit upon reviewing the approval of all appropriate subcode officials.
Record all notices of violations upon receiving notification of the appropriate subcode official, and determine all penalties for noncompliance with the penalty notices.
Ensure that all required inspections are scheduled and performed.
Ensure that the reports of all inspections are completed and properly filed.
Record stop-work orders, upon notification of the appropriate subcode official.
Ensure that all final inspections have been completed prior to the issuance of a certificate of occupancy.
Issue the certificate of occupancy upon receiving the approval of all appropriate subcode officials.
Ensure, in the case of a change of use, or upon a request for a new certificate of occupancy, that each subcode official gives an approval based on an inspection and the review of all submitted data before issuing a new certificate of occupancy.
Prepare and obtain reports required in the regulations.
Nothing contained herein shall prevent the Construction Official from overruling a decision of a subcode official if he is qualified and certified in that subcode pursuant to Part IV of the regulations.
Review those aspects of the application, plans and specifications appropriate to his subcode for approval and release to the Construction Official for issuance of the permit.
Receive, directly from the applicant, and review applications for minor or emergency work for approval and release to the Construction Official for issuance of the permit.
Comply with the time limitations for review as determined by the Construction Official.
Review requests for variations as necessary.
Issue notices of violation in the name of the enforcing agency and notify the Construction Official of same. The subcode official may issue verbal orders at the job site and shall record such orders in his inspection report.
Complete reports of all inspections performed.
Issue stop-work orders in the name of the enforcing agency and notify the Construction Official of same.
Perform final inspection and notify the Construction Official of approval in order that he may issue certificates of occupancy.
Make inspections, review submitted data and notify the Construction Official of approval in the case of a change of use or a request for a new certificate of occupancy.
Assist the Construction Official in the preparation of all reports required in the regulations.
Attend meetings and hearings as required by the regulations.
Issue documentation and certification, such as cut-in cards of utilities and/or public agencies if required by the code, the Commissioner and by law.
Editor's Note: Original § 81-7, Adoption of subcodes by reference, which immediately followed this section, was deleted at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
Plan review. Twenty percent of the construction fee shall be the plan review fee paid at the time of submission of an application for a permit. The amount of this fee shall then be deducted from the amount of the fee due for a construction permit when same is issued. Plan review fees are not refundable.
Plan review waiver. The construction permit shall be reduced 20% when a plan review is waived.
Partial plan review. For projects that do not require plan review for all subcodes, the fee shall be the appropriate percentage of the subcodes which are applicable.
Structures with a basement or cellar. The volume of the structure shall include all enclosed dormers, porches, penthouses and other enclosed portions of the structure extending from the basement or cellar floor to the mean height of a pitched roof or the average height to the top of the roof beams of a flat roof.
Structures without a basement or cellar. For structures without a basement or cellar, the volume shall be based on the height measured to a level located 1/5 the distance from the first-floor level to the bottom of the footings, but not to exceed 2 1/2 feet below the first-floor level.
Open sheds. For open sheds and structures of a similar character, the volume shall be measured within the perimeter of the roof for a height from grade line to the mean roof level.
Building, plumbing, electrical and other fees shall be as provided in Chapter 155, Fees.
State of New Jersey surcharge fees.
The surcharge is based on the volume of the structure as computed in Subsection B above and shall be at the rate provided in Chapter 155, Fees.
Said surcharge fee shall be remitted to the Bureau of Housing Inspection, Department of Community Affairs, on a quarterly basis for the fiscal quarters ending September 30, December 31, March 31 and June 30, and not later than one month next succeeding the end of the quarter for which it is due. In the fiscal year in which the regulations first become effective, said fee shall be collected and remitted for the third and fourth quarters only.
The fee for pursuing an application to the Middle Department Inspection Agency, Inc., or any private third-party on-site inspection agency shall be 15% of the permit fee for the subcodes being enforced by the private inspection agency.
All fees pursuant to this chapter shall be rounded to the nearest dollar.
The owner of any premises upon which a building or structure is being constructed shall be deemed to have consented to the inspection, by the enforcing agency and the Department, of the entire premises and of any and all construction being performed on it until a certificate of occupancy has been issued.
An inspector or team of inspectors, on presentation of proper credentials, shall have the right to enter and inspect such premises and any and all construction thereon for purposes of ensuring compliance with the provisions of this chapter and code or to require the removal or termination of the unlawful use of the building or structure in violation of the provisions of the code or of the order or direction made pursuant thereto.
The Construction Official shall serve, either personally or by certified mail, return receipt requested, a notice of violation and orders to terminate on the person responsible for the erection, construction, alteration, extension, repair, removal, demolition or use of a building or structure in violation of the provisions of the code, or in violation of a detailed statement or a plan approved thereunder, or in violation of a permit or certificate issued under the provisions of the code; and such order shall direct the discontinuance of the illegal action or condition and the correction of the violation.
The notice and orders shall contain at least the following information; the name and address of the owner or lessee; the address at which the violation has occurred; the name and business address of the person upon whom service is made if it is other than the owner; the name and address of the person to whom the order is directed; a citation to the sections of the code violated; an order to terminate violations within a time specified in the order; and the amount of the penalty assessed, if any, and a citation to its statutory and regulatory source and, if cumulative, an explanation of the method of computation; and shall be signed by the appropriate subcode official and the Construction Official.
Unless an immediate hazard to health and safety is posed, the Construction Official shall permit such time period for correction as is reasonable within the context of the violation.
Extensions. The Construction Official may grant extensions of time specified whenever he shall determine that, despite diligent effort, compliance cannot be accomplished within the time specified in the notice. If, however, such extension shall be for a period in excess of three working days, the Construction Official shall require a written application of extension stating the need upon which he shall rule, in writing, and which shall be made a part of the permanent file of the project.
Corrections. If the notice of violation and orders to terminate have been complied with, the Construction Official, in addition to any other available remedies likely to bring about compliance, may request the legal counsel of the Borough to institute the appropriate proceeding at law or in equity to restrain, correct or abate.
Violation of any of the provisions of the Act or the code for each such violation after expiration of the time period delineated in the notice and order to terminate and shall be subject to a further penalty for each week in which he fails to comply with any such order. The time period for such weekly penalty assessment shall begin to run from the day after the date set for compliance in the notice and orders to abate. Though all violations may, for purposes of administration, be sent in one form of notice and orders, each shall be considered a separate order and shall be computed as such for purposes of this subsection.
Failure to comply with a stop-construction order for each day of failure to comply.
Construction of a structure or building in violation of a condition of the construction permit for each violation and any further violation of the construction permit occurring after receipt of the notice and orders to terminate the original violations of the construction permit.
Making a false or misleading written statement or omitting any required information or statement in any application or request for approval to an enforcing agency or the Department for each such false or misleading statement or omission unless the Construction Official shall determine, in writing and as part of the permanent file, that such was of no consequence or the result of inadvertence.
Anyone who knowingly refuses entry or access to an inspector lawfully authorized to inspect any premises, building or structure pursuant to this Act or who unreasonably interferes with such inspection shall be subject to the penalties in Chapter 1, Article I, General Penalty.
The Construction Official shall serve, either personally or by certified mail, return receipt requested, a notice of penalty assessment and an order to pay a penalty, whenever he shall not have done so in the original orders and notice.
The notice and order shall contain at least the following information: the name and address of the owner or lessee; the address at which the violation has occurred; the name and business address of the person upon whom service is made if it is other than the owner; the name and address of the person to whom the order is directed; in the case of a violation of any of the subsections of this chapter, a statement of the subsection violated and the specifics of that violation; and a statement of the total amount of the penalty due or, in the case of a weekly assessment, accruing each week that the violation remains.
The penalties pursuant to this section may be collected in a summary proceeding pursuant to the Penalty Enforcement Law (N.J.S.A. 2A:58-1 et seq.). Jurisdiction to enforce such penalties is conferred upon Judges of the Municipal Court in addition to the courts specified by N.J.S.A. 2A:58-2. Suit may be brought by the Borough or the State of New Jersey. Payments of a money judgment pursuant hereto shall be remitted, in the case of a suit brought by the Borough, to the Municipal Treasurer and, in the case of a suit brought by the State of New Jersey, to the State Treasurer.
The Construction Official may avail himself of the monetary penalty assessment provisions hereinabove described, whenever such shall be likely to assist in bringing about compliance.
If the construction of a structure or building is being undertaken contrary to the provisions of the code, or other applicable laws or ordinances, the enforcing agency may issue a stop-construction order in writing, which shall state the conditions upon which construction may be resumed and which shall be given to the owner or the holder of the construction permit or to the person performing the construction. If the person doing the construction is not known, or cannot be located with reasonable effort, the notice may be delivered to the person in charge of or apparently in charge of the construction. No person shall continue, or cause or allow to be continued, the construction of a building or structure in violation of a stop-construction order, except with the permission of the enforcing agency to abate a dangerous condition or remove a violation, or except by court order. If an order to stop construction is not obeyed, the enforcing agency may apply to the appropriate court as otherwise established by law for an order enjoining the violation of the stop-construction order. The remedy for violation of such an order provided in this subsection shall be in addition to and not in limitation of any other remedies provided by these regulations or the law or ordinance.
All buildings or structures that shall become unsafe or unsanitary or which contain deficient or blocked exitway facilities or which constitute a fire hazard or are otherwise dangerous to human life or the public welfare or which, by reason of illegal or improper use or occupancy, shall be deemed unsafe buildings or structures shall be taken down and removed or made safe and secure. A vacant building unguarded or open at a door or window shall be deemed a fire hazard and unsafe within the meaning of the code.
Examination and record of damaged structures. The Construction Official shall examine every building or structure reported as dangerous, unsafe structurally or constituting a fire hazard; and he shall cause the report to be filed in a docket of unsafe structures and premises, stating the use of the structure and the nature and estimated amount of damages, if any, caused by collapse or failure. He shall cause to be noted all violations of the applicable construction permit, the code and other applicable laws and regulations. All inspections pursuant to this section shall be between the hours of 8:30 a.m. and 4:30 p.m. on business days, or when construction is actually being undertaken; provided, however, that inspections may be conducted at other times if the enforcing agency has reasonable cause to believe that an immediate danger to life, limb or property exists or if permission is given by an owner or his agent, architect, engineer or builder. No person shall accompany an inspector or team of inspectors on any inspection pursuant to the code, unless his presence is necessary for the enforcement of the code or unless consent is given by an owner or his agent, architect, engineer or builder.
Notice of unsafe structure. If an unsafe condition is found in a building or structure, the Construction Official shall serve on the owner, agent or person in control of the building or structure a written notice describing the building or structure deemed unsafe and specifying the required repairs or improvements to be made to render the building or structure safe and secure, or requiring the safe building or structure or portion thereof to be demolished within a stipulated time. Such notice shall require the person thus notified to immediately declare to the Building Official his acceptance or rejection of the terms of the order.
Restoration of unsafe structure. A building or structure condemned by the Construction Official may be restored to a safe condition, provided that change of use or occupancy is not contemplated or compelled by reason of such reconstruction or restoration, except that if the damage or cost of reconstruction or restoration is in excess of 50% of its replacement value, exclusive of foundations, such structure shall be made to comply in all respects with the requirements for materials and methods of construction of structures hereafter erected.
Posting unsafe notice. If the person addressed with an unsafe notice cannot be found within the Borough after diligent search, then such notice shall be sent by registered or certified mail to the last known address of such person, and a copy of the unsafe notice shall be posted in a conspicuous place on the premises and such procedure shall be deemed the equivalent of personal notice.
Upon refusal or neglect of the person served with an unsafe notice to comply with the requirements of the order to abate the unsafe condition, the Construction Official shall, in addition to any other remedies herein provided, forward the matter to the legal counsel of the jurisdiction, or, in the case of the state, to the Attorney General, for an action to compel compliance.
Nothing herein is intended to limit the right of the Borough of South River to adopt Housing, Property Maintenance or Public Health Code enforcement rules pursuant to any other law, ordinance or judicial decision of this state.
When, in the opinion of the Construction Official, there is actual and immediate danger of failure or collapse of a building or structure or any part thereof which would endanger life, or when any structure or part of a structure has fallen and life is endangered by the occupation of the building or structure, the Construction Official is hereby authorized and empowered to order and require the occupants to vacate the same forthwith. He shall cause to be posted at each entrance to such building a notice reading as follows: "This structure is unsafe and its use or occupancy has been prohibited by the Construction Official, and it shall be unlawful for any person to enter such building or structure except for the purpose of making the required repairs or of demolishing the same."
Temporary safeguards. When, in the opinion of the Construction Official, there is actual and immediate danger of collapse or failure of a building or structure or any part thereof which would endanger life, he shall cause the necessary work to be done to render such building or structure or part thereof temporarily safe, whether or not the legal procedure herein described has been instituted.
Closing streets. When necessary for the public safety, the Building Official may temporarily close sidewalks, streets, buildings and structures and places adjacent to such unsafe structures and prohibit the same from being used.
Emergency repairs. For the purpose of this action, the Building Official shall employ the necessary labor and materials to perform the required work as expeditiously as possible.
Costs of emergency repairs. Costs incurred in the performance of emergency work shall be paid from the treasury of the jurisdiction, on certificate of the Construction Official, and the legal authority of the jurisdiction shall institute appropriate action against the owner of the premises where the unsafe building or structure was located for the recovery of such costs.
Nothing contained in this chapter or the code shall be deemed to affect, repeal or invalidate the Borough's Zoning Ordinances or the regulation or licensing of any trade or profession engaged in construction work.
A building, plumbing or electrical permit issued under valid construction regulations prior to the promulgation of the code and this chapter shall remain valid, and the construction of any building or structure may be completed pursuant to and in accordance with said permit. The construction of any building or structure stated before the promulgation of the code and this chapter that did not, as of the date of the beginning of the construction, require a construction permit may be completed without a construction permit.
All construction regulations incorporated in any act of the State of New Jersey or of the Borough presently in effect or validly promulgated or enacted by any board, department, commission or agency thereof shall be superseded and of no other force and effect from and after the effective date of this chapter and the State Uniform Construction Code, namely, January 1, 1977.
Any law or regulation addressing areas for which the Commissioner of the New Jersey Department of Community Affairs shall not have promulgated a subcode may continue in effect until such time as a subcode therefor is adopted.


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As we know, Bioinformatics is the application of information technology and computer science to the field of molecular biology. Its main purpose is to increase our understanding of biological processes, which is why bioinformatics is constantly evolving and reinventing itself through new discoveries and technology. Some of the major research topics in the field of bioinformatics are sequence alignment, gene finding, genome assembly, drug design, drug discovery, protein structure alignment, protein structure prediction, prediction of gene expression and protein-protein interactions, genome-wide association studies and the modeling of evolution. Continuing our efforts to provide our readers with information that might be of much interest in the simplest possible way, as we have previously done with blogposts such as 10 Science PhD Related Blogs or 10+1 Medical Librarian Blogs.
Fisheye Perspective: A Blog about Systems Biology, Bioinformatics, Chemoinformatics, Science and Life in general- by Abhishek Tiwari.
About the author: Abishek Tiwari shares his opinion on issues dealing with bioinformatics. He is a passionate follower of this subject as part of his research interests, studied B.Tech in Bioinformatics in India and is currently getting his PhD in New Zealand.
Description: This blog includes interesting information on other topics such as: chemoinformatics, visual analytics, systems biology, and science as a whole. One of his latest posts, Availability decay of Bioinformatics web resources: Yes widgets can change it, talks about the inaccessibility of bioinformatics software and web resources and how the use of widgets can improve this situation.
Description: We find this blog to be very helpful since Neil spreads his knowledge, research, and new findings to all of his followers. You can find useful information on database-related issues when visiting this blog, where you can also ask questions on topics he is currently or has previously been researching such as biotechnology and biomolecular sciences.
About the Author: In Paulo Nuin´s website, www.genedrift.org, you can find information on this bioinformatician´s work, research, sample software tools, and more! Paulo Nuin, Brazilian born bioinformatician finds himself in Canada getting his post-doc.
Description: In this blog, Paulo shares his insight on creating simple Python scripts. He is very well-recognized in the bioinformatics field and Python programming and was asked recently to review a Python Beginner guide from Packt Publishing. If you want to read more about it, take a look at Preview of Python Testing’s beginner Guide.
About the Author: A blog mainly about bioinformatics and the semantic web. Pierre Lindenbaum is a brilliant bioinformatician from France who is very active in social networks. He also includes comics in his blog, which he has constantly been working on since 2005.
Description: Yokofakun is highly recognized throughout the bioinformatics community through social networking tools. You can find a lot of information about software and databases, as well as overviews and tips on their use. A perfect example of his work is found in The Path from EgonWillinghagen to Neo4j, a graph API fro java: my notebook. We encourage you to follow this bioinformatics blog where you can find many interesting codes.
About the Author: Dr. Sandra Porter, a bioinformatics teacher in Seattle and President of Digital World Biology, writes about things she is learning and discovering about in this field of study, and gives her opinion on current events that are relevant to the subject matter.
Description: In her article, A ScienceOnline 2010 session mash-up review: Fact checking and trust, she analyzes whether Google sites contain misleading information while searching for biomedical terms. We encourage you to visit her site and share your personal opinion with her community.
Your bones got a little machine (Pansapiens): Ideas are cheap, implementation is expensive; act accordingly.
About the Author: Andrew Perry is an Australian structural biologist and bioinformatician, and this blog´s author.
Description: Mainly dealing with structural bioinformatics and biology, the content found in his blog provides interesting information of current events taking place in these fields. If you are also interested in video games, Andrew writes web applications and games mostly through Python programming. During 2009, his activity took place mainly in Friendfeed and not in the blog itself. Here are the 2009 posts that never made it where you can find information on database services, API´s and much more!
About the Author: A blog on bioinformatics and personal productivity by Flemish bioinformatician, Jan Aerts, who describes himself as “a genetics/genomics researcher who accidentally tumbled down the slope of programming and bioinformatics“.
Description: Focuses on relevant database and software technologies, sharing his experience and opinion after using them. In one of his latest posts you can find information on the 1000 genome project, the kind of input data it includes, and how it would look in a database.
About the Author: With about 5 posts per week, Professor Iddo Friedberg from the Miami University in Ohio, keeps us aware of all kinds of facts dealing with the scientific world using a humoristic approach.
Description: Apart from science, this computational biologist also shares his thoughts on computers, music, and other topics. Iddo also recommends his favorite bioinformatics blogs. One of the blogposts we have enjoyed the most is A Sh*tload of Data , where he talks about understanding the role microbiomes play.
About the Author: For all of you Python lovers! Chris Lasher provides information related to genetics, bioinformatics, and computational biology, which are all subjects he studies as a graduate student in Virginia Tech.
Description: Check his blog out for tips on the latest technology in Python.
About the Author: Manuel Corpas is a Spanish computational biologist who shares his knowledge through his personal blog where you can find information on many related subjects of interest such as biology, biotechnology, computational bioethics, synthetic biology and more, where we find he is “a lead developer of the DECIPHER database, a “DatabasE of Chromosomal Imbalance and Phenotype in Humans using Ensembl Resources”. We are delighted to see one of our fellow countrymen so active in the bioinformatics landscape!
Description: You can find posts such as 10 Sarcastic Rules on how to be a Bioinformatician, which not only brings humor to what you are reading but gives you useful tips on how to be at your best. It’s a very reliable source of what goes on in this scientific world.
About the Author: Thomas Mailund, a research associate professor at the Bioinformatics Research Center in Denmark, is very involved in the bioinformatics world and shares his experiences in conferences and workshops, which he attends, as well as other relevant information on hot topics in this field.
Description: This blog can keep you up to date with information that is emerging in these sessions Mailund participates in. One of his latest posts, which we found to be quite interesting, deals with the evolution of health and medicine .
Website: http://www.mailund.dk/ You can also visit his official work homepage for more information.
About the Author: Brad Chapman, biologist and programmer, works in the biology department at Massachusetts General Hospital in Boston. His blog offers support to researchers by answering interesting biological questions, using his personal criteria.
Description: In this site you can find blog posts where he shares information about database systems, genes, and other topics that can be helpful for biologists in their daily functions.
About the Author: Dan Koboldt is a highly qualified biologist who works in a Genome Sequencing Center in Washington, and keeps us up to date with this subject through his blog, also sharing his many publications on this interesting topic.
Description: This blog focuses on everything dealing with genomics, just like its name suggests Cancer genomics is one of the subjects he focuses on. In one of his most recent posts, Koboldt points out many concepts and issues that were addressed at sessions in Washington University, such as next generation sequencing and molecular techniques.
About the Author: Computational biologist Keith Robinson has worked on genomic and proteomic technologies, currently working in Massachusetts in the cancer drug discovery field.
Description: Through his blog, Robinson shares his findings by using peculiar examples, which will without a doubt leave you yearning for more. Read his latest post on the possibility of sending synchronous messages to actors…quite entertaining!
Our #15 Top Pick for bioinformatics blogs is Bio Star available at http://biostar.stackexchange.com/ A site for finding information about bioinformatics, computational genomics, and system biology, containing hundreds of questions and answers on these subjects. It’s an extremely helpful tool, which allows you to interact with other individuals that might have your same interests and doubts regarding bioinformatics. We highly recommend it!
After taking a look at this Top 15 Bioinformatics blogs in 2010, we encourage you to try the novoseek’s API, which we think is a great resource to enrich content, integrate data, and display information in your own format. We are eager to see what skilled bioinformaticians will come up with.
The diarrheal outbreak in Far- and Mid-Western regions of Nepal in 2009 was a cause for genuine concern as it affected over 5,000 individuals and caused more than 200 deaths. In Jajarkot district alone, more than 100 people died in just four months, with over 400 affected. Scientifically speaking, a bacterial strain by the name of Vibrio cholera was identified in almost 39 percent of the 15 samples tested. However, V. cholera is not the only pathogen capable of causing severe or fatal diarrhea in developing countries, Nepal being an example. A number of other bacterial and viral pathogens have been implicated in diarrheal outbreaks worldwide. Those include a number of Escherichia coli strains, Aeromonas strains, Campylobacter strains, Shigella strains, Salmonella strains, as the most pathogenic ones. Campylobacter strains are sometimes associated with food poisoning in diarrheal cases while Salmonella strains are known to be mostly associated with foodstuff and in some cases with contaminated drinking water. Aeromonas species is primarily associated with water and is known to cause cholera-like diarrheal symptoms, thus increasing the possibility of false diagnosis of cholera when this may not actually be the case.
In the Nepali context, V. cholera types have been implicated often in a larger number of occasions. The first report of cholera in Nepal was officially published for the years 1958 to 1960 by a medical doctor visiting Nepal. A total of 410 deaths over a three-year period in Kathmandu, with more than 3,000 affected, were reported. An outbreak of acute diarrheal disease in Kavre district during the year 2005 showed 31 percent cases positive for V. cholera. Using molecular (DNA/RNA of organisms as targets) method, a Japanese research group found that recent outbreaks in the country were mainly due to the V. cholera. A very recent study using latest molecular methods carried out by Center for Molecular Dynamics Nepal in collaboration with Nepal Health Research Council has found that diarrheal outbreak may be caused not only by V. cholera alone, but in a combination with other virulent pathogens, including Aeromonas species.
To date, the detection of diarrheal pathogens in Nepal has relied almost extensively on microbiological (growth of pathogens in culture media), biochemical (by-products of pathogenic metabolism) and serological tests (immune response of host to pathogen). These methods may have been useful until the recent past, but with the advent of molecular technology, same cannot be said anymore. Thus, the limited laboratory facilities in the government sector appears to have prevented early diagnosis of the recent 2009 outbreak considering that the first presumptive identification of the causative agent was only carried out and made public three months after the start of the outbreak. This may have contributed to delayed treatment as it is hard for a clinician to effectively suggest the dosage and frequency of medication in outbreak situations without a proper screening mechanism in place.
Many of the deaths due to diarrhea in Nepal have been caused as a result of dehydration resulting from loss of water and electrolytes (intestinal malabsorption or increased secretion). Replacement of these losses by oral rehydration solution is the mainstay of therapy for individuals with watery diarrhea. The treatment of diarrhea by water or water supplemented with salts (Oral Rehydration Solution) has been extensively promoted in endemic pockets in Nepal where the incidence of diarrheal outbreaks is high. However, in extreme cases, antibiotic needs to be administered. As an example, if we just take the case of two different causative agents of diarrheal outbreaks in developing countries, Vibrio species and Aeromonas species, the critical importance of prior diagnosis becomes apparent. The recommended medication for Aeromonas species is usually Cefixime, and most third-generation and fourth-generation cephalosporins (a family of antibiotics). However, in the case of V. cholera, Tetracycline is the usual antibiotic of choice, and in some cases, doxycycline, and other broad-spectrum antibiotics (another family of antibiotics). Thus, there are clearly differences in medication for the two different species and wrong medication for either could lead to delayed recovery and in the long term, development of antibiotic resistance by the pathogen.
The principle of PDTC (Prevention, Diagnosis Treatment and Care) has been the guiding light in major disease management in Nepal and elsewhere. However, in the case of diarrheal outbreaks, the relative emphasis needs to be adjusted. While prevention remains the mainstay strategy to deal with the problem of diarrhea, the need for correct diagnosis has emerged as the most important prong of the ladder for effective and efficient management of diarrheal diseases and epidemics as well as prevention of such future outbreaks. One of the major reasons is that traditional methods require that the pathogen be grown (cultured) in the laboratory. A large number of pathogens cannot survive very well outside the human body and thus may not be detected although they are present in the body. Methods that do not require culture such as biochemical tests and serological tests take time and are not very indicative of the actual bacterial species present. Therefore, molecular methods are the future of any disease diagnostics.
A comprehensive screening for presence of major pathogens, both bacterial and viral, can be carried out using this type of technology which is already available in Nepal. The use of these modern methods would not only result in rapid diagnosis, but also enable highly-specific identification of the actual pathogen(s) involved in a diarrheal outbreak. Therefore, modern methods of diagnosis should be explored, and utilized by the government health sector as well as external development partners working in health sector, for better management of future outbreaks. The cost of such diagnostic procedures which may be higher than traditional methods initially can be lessened tremendously if the capacity-building for molecular diagnosis is promoted within the country.

matches: V. V. V. V. V. V.


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This case now comes up on (1) Schilz-Price Enterprises, Inc.'s (hereinafter "Enterprises") motion, filed May 11, 1992, to substitute a successor in interest, (2) Pro-Cuts and Hawkins Pro-Cuts, Inc.'s (hereinafter referred to jointly and severally as "applicant," except as otherwise indicated) motion, filed September 24, 1992, for a further extension of time to respond to Enterprises' motion to substitute, (3) applicant's motion, filed October 16, 1992, to suspend proceedings herein pending consideration by the Board of the effect of a recent assignment to applicant of a particular registration, (4) Enterprises' consented motion, filed November 9, 1992, for an extension of time to respond to applicant's "motion to suspend" and to file a reply brief in support of its own motion to substitute, and (5) applicant's response to a show cause order issued by the Board on February 4, 1993.
The show cause order may be determined quickly. On October 13, 1992, applicant filed a revocation of all previous powers of attorney. On the same date, applicant's attorneys of record filed a request for leave to withdraw as counsel for applicant in this proceeding. In an action dated November 19, 1992, the Board granted the request, suspended proceedings herein, and allowed applicant 30 days in which to either appoint new counsel, or file a paper stating that it wished to represent itself. Having received no response from applicant to this action, the Board, in an action mailed February 4, 1993, allowed applicant 20 days in which to show cause why judgment should not be entered against applicant in view of applicant's apparent loss of interest in the case. In its response to the show cause order, applicant stated that new counsel had, in fact, entered an appearance in behalf of applicant even before applicant's previous counsel withdrew, and that new counsel had filed numerous papers in applicant's behalf since that time. A review of the record confirms applicant's statements. Accordingly, the order to show cause is deemed discharged, and henceforth correspondence for applicant will be sent to the attorney who signed the appearance, namely, Karen M. Simonek, of the firm of Cooter & Gell, 1201 New York Avenue, N.W., Suite 900, Washington, D.C. 20005.
We turn next to Enterprises' consented motion for a one-month extension of time to respond to applicant's "motion to suspend," and for a like extension of time to file a reply brief in support of its own motion to substitute. The motion to extend was filed on November 9, 1992, and had not yet been associated with the file of this case when the Board issued its November 19, 1992 order suspending proceedings herein and allowing applicant 30 days in which to either appoint new counsel, or file a paper stating that it wished to represent itself. Proceedings have remained suspended to date, and the briefs in question have not been filed. However, applicant's "motion to suspend" can be determined without a responding brief from Enterprises. Moreover, reply briefs normally are not favored by the Board, and Enterprises' motion to substitute can be determined by the Board without further briefing by Enterprises. In view of the length of time that the proceedings between the parties have consumed, and in order to expedite matters herein, both applicant's motion to suspend and Enterprises' motion to substitute are determined below. Accordingly, Enterprises' motion to extend is denied as moot.
*2 As to the two remaining motions, namely, applicant's "motion to suspend" and Enterprises' motion to substitute, a recitation of the history of this case will be helpful to an understanding of the motions. On April 25, 1983, applicant Pro-Cuts filed an application (Serial No. 73/422,960) for a geographically unrestricted registration of the mark "PRO-CUTS" and design for hair styling and cutting services. In the application, applicant claimed first use of the mark, and first use of the mark in interstate commerce, on May 1, 1982. The application was eventually published for purposes of opposition, and was opposed (Opposition No. 72,232, filed July 29, 1985) by Enterprises, which pleaded priority of use and likelihood of confusion.
During opposer Enterprises' main testimony period in the opposition (but at a time when Enterprises had apparently not yet taken testimony because the parties had been negotiating, albeit unsuccessfully, for settlement), applicant Pro-Cuts filed a motion seeking, in essence, to substitute its successor in interest, Hawkins Pro-Cuts, Inc., in its stead, and also seeking to amend its application to one for concurrent registration. Specifically, applicant sought to amend its application to one seeking registration for the area comprising the States of Texas, Oklahoma, Louisiana, Arkansas, Florida, Missouri, Alabama, New Mexico, Mississippi, Georgia, Kentucky, Tennessee, Kansas, and Colorado. Recited in the proposed amendment as an exception to applicant's right to exclusive use was Enterprises, said by applicant to have been using the mark "PRO-CUTS" for hairstyling and cutting services in the State of California since June 21, 1979. Applicant also indicated its willingness to accept entry of judgment against itself in the opposition with respect to its right to a geographically unrestricted registration.
In a decision dated April 24, 1987, the Board granted both of applicant's motions. Specifically, applicant's motion to amend its application to one seeking concurrent registration was granted; judgment was entered against applicant in the opposition with respect to its right to a geographically unrestricted registration; and the present concurrent use proceeding was instituted to determine applicant's right to the geographically restricted registration sought. In addition, applicant Pro-Cuts' motion to substitute was granted to the extent that its successor in interest, Hawkins Pro-Cuts, Inc., was joined as a party defendant in the opposition, and as a party plaintiff in the concurrent use proceeding.
Immediately after the institution of the concurrent use proceeding, and prior to the filing by Enterprises of an answer under Rule 2.99(d)(2) (in its answer, Enterprises contended, inter alia, that applicant should not be granted any registration at all because applicant adopted and used its mark with knowledge of Enterprises' prior use thereof), applicant moved to amend its application to enlarge the territory for which it sought registration to the area comprising all of the United States except for the State of California. The motion was granted by the Board, over the objections of Enterprises, and the case went to trial on that basis. Both parties took discovery and testimony. After applicant's main brief on the case had been filed, Enterprises filed its motion to substitute. Applicant, in turn, filed a brief in opposition thereto, and its own "motion to suspend."
*3 Against the foregoing background, we turn to applicant's motion to suspend proceedings herein pending consideration by the Board of the effect of a recent assignment to applicant of a particular registration, namely, Registration No. 1,144,560, issued December 23, 1980 (affidavit Section 8 accepted, affidavit Section 15 filed) from an application filed June 23, 1978, claiming use since November 1, 1975, for the mark "PRO-KUT" and design for hair styling services.
In support of its motion, applicant asserts that it stands in the shoes of its assignor; that the mark in the assigned registration is confusingly similar to the mark in its present application; and that applicant is thus entitled to rely on the registration for priority purposes in this proceeding. In addition, applicant asserts that the evidence of record in this case shows that Enterprises itself (despite its pleadings and interrogatory answers to the contrary) has never used the mark "PRO-CUTS"; that instead, use of the mark has been made by 12 limited partnerships (known as Hair Ventures I-XII), whose use was not controlled by, and did not inure to the benefit of, Enterprises; that 11 of the limited partnerships (Hair Ventures II-XII) did not begin use of the mark until after issuance of the registration which has now been assigned to applicant; that the first limited partnership (Hair Venture I) commenced use in 1979, after the filing of the application which matured into applicant's registration, but prior to the issuance of the registration; and that the assigned registration gives applicant rights superior to any rights previously asserted by any party in this proceeding.
Accordingly, applicant requests in its motion that the Board suspend proceedings herein and consider at this time the effect of the assignment of the registration to applicant; that applicant be granted a geographically unrestricted registration; and that Enterprises be denied registration. Alternatively, applicant requests that if the Board determines that applicant is entitled only to a concurrent use registration, applicant be granted a registration for the entire United States except for the area within a three-mile radius of Hair Venture I, i.e., the only one of the limited partnerships which began use of the mark "PRO-CUTS" prior to the issuance of applicant's assigned registration.
Applicant's request that Enterprises be denied registration cannot be granted by the Board. Enterprises did file an application for registration, namely, application Serial No. 73/482,557, filed May 29, 1984 for a geographically unrestricted registration of the mark "PRO-CUTS" for hairdressing salon services for men, women and children. An assignment of the application to Enterprises' asserted successor in interest, Duke Specialty Ventures, Inc., was recorded in the Assignment Branch of the Patent and Trademark Office at reel 730, frame 139. However, that application is not involved in this proceeding, and the Board has no jurisdiction over it. Rather, the application is still before the Examining Attorney, in Law Office 8, and has been suspended pending the outcome of this proceeding. Thus, the question of Enterprises' and/or Duke Specialty Ventures, Inc.'s right to registration is not before the Board. That question cannot, and will not, be determined in this proceeding, unless the application is amended to seek concurrent registration, is published without successful opposition, and is added to this proceeding. Cf.: Georgia-Southern Oil Inc. v. Richardson, 16 USPQ2d 1723 (TTAB1990).
*4 Nor are applicant's requests that it be granted a geographically unrestricted registration, or at least a registration for the entire United States except for the area within a three-mile radius of Hair Venture I, well taken. As noted above, these requests are based upon applicant's acquisition of Registration No. 1,144,560, and its claim that the assigned registration gives applicant rights superior to any rights previously asserted by any party to this proceeding. In essence, applicant seeks to "tack," for purposes of priority, the earlier use of the assigned mark onto the use of the mark sought to be registered herein.
A party seeking to "tack" its use of an earlier mark onto its use of a later mark for the same goods or services may do so only if the earlier and later marks are legal equivalents, or are indistinguishable from one another. To meet the legal equivalents test, the marks must create the same commercial impression, and cannot differ materially from one another. Thus, the fact that two marks may be confusingly similar does not necessarily mean that they are legal equivalents. See, for example: Lincoln Logs Ltd. v. Lincoln Pre-Cut Log Homes Inc., 971 F.2d 732, 23 USPQ2d 1701 (Fed.Cir.1992); Van Dyne-Crotty Inc. v. Wear-Guard Corp., 926 F.2d 1156, 17 USPQ2d 1866 (Fed.Cir.1991); Ilco Corp. v. Ideal Security Hardware Corp., 527 F.2d 1221, 188 USPQ 485 (CCPA1976); Baroid Drilling Fluids Inc. v. Sun Drilling Products, 24 USPQ2d 1048 (TTAB1992); and American Paging Inc. v. American Mobilphone Inc., 13 USPQ2d 2036 (TTAB1989), affirmed in an unpublished opinion, 17 USPQ2d 1726 (Fed.Cir.1990).
Aside from the differences between the marks in spelling and pluralization, there is a very material difference between them because of their different design features. In short, although we agree that these marks are confusingly similar, they clearly are not legal equivalents. [FN1] Under the circumstances, applicant cannot tack onto its use of the mark "PRO-CUTS" and design the earlier use of the mark "PRO-KUT" and design. While applicant's ownership of the assigned registration might well enable it to prevail in an opposition against any application owned by Enterprises (or its asserted successor, Duke Specialty Ventures, Inc.) for an unrestricted registration of the mark "PRO-CUTS" and design for hairdressing salon services, the assigned registration is of no particular benefit to applicant in this proceeding, where the critical question is applicant's date of first use of its mark sought to be registered (or a legal equivalent thereof). Cf.: Baroid Drilling Fluids Inc. v. Sun Drilling Products, supra.
*5 For the foregoing reasons, applicant's "motion to suspend" is denied.
This brings us to Enterprises' motion to substitute. [FN2] Although Enterprises specifically asks in its motion that we substitute as user herein the twelve limited partnerships, Hair Ventures I-XII, and their asserted current owner, Duke Specialty Ventures, Inc. (hereinafter "Duke"), it appears to us that what the motion really seeks is the substitution of Duke as user.
In support of the motion, Enterprises asserts that it is a small closely held corporation; that it has done business through a number of hair care limited partnerships; that the money of each partnership was invested in a particular hair salon; that either William Schilz (president of Enterprises) or, after its inception, his corporation, Enterprises, was the general partner in each limited partnership; that it was William Schilz who actually ran the chain of salons, the limited partners being mere passive investors; that all of the rights and assets, in the "PRO-CUTS" business, of William Schilz himself, Enterprises, and 11 of the 12 limited partnerships, including their rights in the mark "PRO-CUTS" and the good will of the business associated therewith, have been sold to Duke; that the remaining limited partnership (Hair Venture XI) has been sold to a third party, which has been granted a license by Duke to use the mark "PRO-CUTS" for one year only; that the limited partnerships, having been sold, no longer exist; and that a short testimony period can be had for the purpose of allowing the parties to introduce evidence concerning, inter alia, the sale of the hair salon partnerships to Duke.
Second, Applicant does not assert in this proceeding exclusive rights against the latter eight California users in the Bay area only. Applicant has no desire to become mired in whatever claims or cross-claims may exist between and among the twelve California users. Applicant does, therefore, acquiesce to the naming of all twelve California users (Hair Ventures I-XII) as exceptions, in the Bay area only, to Applicant's claim of territorially exclusive use of the PRO-CUTS mark.
It is Enterprises' contention that if applicant "truly wishes to define the Hair Ventures as third parties" to its concurrent use applications and wants them included in this proceeding, "then the third parties should be given the opportunity to defend themselves and substitute for themselves their legitimate successor in interest, which has purchased all the rights to all of the Hair Ventures and user."
whereby Sellers agree to sell to Buyer all of the assets and properties owned and utilized by Sellers on or in connection with the business of owning and operating in the aggregate 11 hair care salons under the name "PRO-CUTS". The agreement is signed by Duke and by Hair Ventures I, II, IV, V, VI, VII, VIII, IX, X, and XII, the ten limited partnerships listed in Schedule 1. [FN4] Signature on behalf of Hair Venture I is made by William F. Schilz as an individual. Signature on behalf of the other nine listed Hair Ventures is made by William F. Schilz as president of Enterprises, the General Partner.
whereby the Sellers sell, convey, transfer, assign and deliver to Duke the assets of their hair care salon business, including the mark "PRO-CUTS" and the good will associated therewith. The document is signed by the same parties, and in the same manner, as the first document (again, there is no reference anywhere to Hair Venture III).
Applicant, in its brief in opposition to the motion, asserts that Enterprises never itself used the mark "PRO-CUTS" nor did it license any other entity to do so; that the users of the marks were the 12 limited partnerships in the San Francisco Bay area; that Enterprises cannot benefit from the use by the limited partnerships because that use was not licensed or controlled by Enterprises; that Enterprises was not even incorporated until one year after the use of Hair Venture I commenced; that Enterprises therefore has no standing to participate in this proceeding, which should be dismissed; that Enterprises had no transferable interest in the mark; that only the partnerships, and not Enterprises, are listed in the assignment document as assignors; that Enterprises is not a proper party to this proceeding; that whatever rights the partnerships had have assertedly been transferred to Duke; and that because they no longer have any rights in the mark, they should not be substituted as party defendants herein.
*7 Applicant also asserts that the substitution of Duke as a party defendant at this late date would be unduly prejudicial to applicant; that Enterprises' delay in moving to substitute is not excused by the fact that applicant named the wrong party in its application as an exception to its right to exclusive use; that applicant was misled, by Enterprises' pleadings in the opposition, into naming Enterprises as an exception; that Enterprises continued its deception in its answer herein and in the interrogatory answers which it provided in this proceeding; that applicant did not know about the limited partnerships until the taking by Enterprises of the testimony deposition of Enterprises' president during this proceeding; that Enterprises' proposed additional evidence is contrary to its previous evidence, including its interrogatory answers, wherein Enterprises denied that it was a partner in any partnership; and that Enterprises' motion to substitute should be denied because of Enterprises' failure to provide truthful interrogatory answers.
There are a number of problems with applicant's position. To begin with, "standing" is a concept which has to do with whether a plaintiff has a right to maintain a proceeding. This concept has no applicability to a defendant in a concurrent use proceeding. Second, applicant accepted entry of judgment against itself in the opposition with respect to its right to an unrestricted registration, and that judgment carries with it certain res judicata effects. Third, applicant has conceded in its brief on the case that Hair Ventures I-IV commenced use of the mark "PRO-CUTS" before applicant and have continuously used the mark to date, and also that applicant does not assert exclusive rights against the other Hair Ventures users in the San Francisco Bay area. It is manifest therefrom that applicant is not entitled to a geographically unrestricted registration. Fourth, even when a user in a concurrent use proceeding defaults (and there has been no default here), the applicant still has the burden of proving its entitlement to the concurrent registration sought. See: Rule 2.99(d)(3). Fifth, one of the questions which must be determined in a concurrent use proceeding is who is the owner of the adverse rights recognized by the concurrent use applicant, and who thus should be the party defendant to the proceeding and the named exception in any concurrent use registration which may ultimately be issued to applicant.
While the ultimate decision in this case as to who is the owner of the adverse rights recognized by applicant will have to await final decision (or agreement of the parties), the documents submitted by Enterprises in support of its motion to substitute indicate that at least 10 of the limited partnerships have assigned whatever rights they may have had in the mark to Duke. Inasmuch as the partnerships no longer have any rights in the mark, and indeed, according to Enterprises, no longer exist, it would be pointless to join them as party defendants to this proceeding. On the other hand, the assignment document indicates, at least prima facie, that Duke now owns the rights which the 10 listed limited partnerships had in the mark.
*8 It is not clear to the Board whether Enterprises still claims to have had, in and of itself, any ownership rights in the mark, and, if so, whether whatever rights Enterprises may have had have been assigned to Duke. We note in this regard that the assignment document is not signed by Enterprises in its own right but rather only as the general partner of 9 of the 10 signing limited partnerships. We also note that Enterprises apparently was not incorporated until one year after Hair Venture I commenced use of the mark, and was not the general partner in that firm. Further, the brief and supporting documents submitted by Enterprises in connection with its motion to substitute are totally silent with respect to the rights of Hair Venture III.
Accordingly, Enterprises' motion to substitute is granted only to the extent that Duke is hereby joined with Enterprises as a party defendant herein.
Moreover, the Board is mystified and deeply troubled by Enterprises' interrogatory answers, which, inter alia, claimed use of the mark by Enterprises; denied that Enterprises was a partner in any partnership; and stated that Enterprises owned and managed 12 hair care salons which rendered their services under the mark, but were not separate legal entities. These interrogatory answers effectively denied applicant the opportunity to obtain meaningful discovery concerning ownership of the adverse rights.
Under the circumstances, justice demands that the discovery and testimony periods be reopened, if applicant so desires, in order that applicant can take discovery concerning both this matter and the apparent transfer of rights in the mark to Duke, and introduce evidence thereon. Applicant is allowed until 30 days from the date hereof in which to advise the Board whether it wishes to have the discovery and testimony periods reopened. If applicant chooses to have these periods reopened, the party defendants will also be allowed an opportunity to offer additional evidence.
One final matter requires the Board's attention. The briefs submitted by the parties in connection with the foregoing motions indicate that in its brief on the case, applicant, which went to trial on the basis of an application seeking concurrent registration for the area comprising all of the entire United States except for the State of California, now asks that it be granted a registration for all of the United States except for the San Francisco Bay area.
It is not the practice of the Board, in a contested concurrent use registration proceeding, to grant a concurrent use applicant a registration for an area greater than that which it claimed at trial. To do otherwise would be unjust to the other party or parties to the proceeding, who are entitled to notice prior to trial of the area for which applicant seeks registration as well as the extent of the area conceded by applicant to the other party or parties. Applicant itself recognized as much when it moved, just after the institution of this proceeding, to enlarge the territory for which it sought registration to that upon which it went to trial. Ordinarily, a request by a concurrent use applicant, at this late stage of the proceeding, to enlarge the territory for which it seeks registration would be denied.
*9 However, the Board, in its determination above of Enterprises' motion to substitute, has offered applicant the option of having the discovery and testimony periods reopened. If applicant opts for reopening, the Board will entertain a motion from applicant to amend its application to seek a concurrent registration covering a larger area than that which applicant sought at the time of trial. The motion, if filed, should be filed within 30 days from the date hereof and should describe the area for which applicant now wishes to seek registration with specificity. A description reading "all of the United States except for the San Francisco Bay area" is not sufficiently definite. The excepted area, if less than an entire state, should be described in terms of counties or in other specific and definite terms. If the motion is granted, the party defendants will be allowed to take discovery and offer additional evidence concerning applicant's right to a registration for the enlarged area. The granting of such a motion does not, of course, necessarily mean that applicant will be granted a registration for the area sought. Whether applicant is entitled to a concurrent registration, and, if so, for the area sought or for some lesser area, is a matter to be determined at final hearing based on the evidence of record (in the absence of the submission by the parties of a persuasive settlement agreement).
In summary, the order to applicant to show cause is deemed discharged; Enterprises' motion filed November 9, 1992 to extend time is denied as moot; applicant's motion filed September 24, 1992 to extend time is granted; applicant's "motion to suspend" is denied; and Enterprises' motion to substitute is granted to the extent that Duke Specialty Ventures, Inc. is joined as a party defendant herein. In addition, applicant is allowed until 30 days from the date hereof in which to advise the Board whether it wishes to have the discovery and testimony periods reopened in this case, and, if applicant opts for reopening, until the same time to file, if it so desires, a motion to amend its application to enlarge the territory for which it seeks registration.
FN1. Applicant also acquired, by assignment, another, later, registration, namely, Registration No. 1,461,575, issued October 20, 1987 from an application filed October 29, 1986 with a claimed date of first use of May 1, 1986, for the mark "PRO-KUT" with a different palm tree design for, inter alia, hair styling services. Although the two registered marks are not legal equivalents of applicant's mark "PRO-CUTS" and design, we agree with applicant's contention that they are confusingly similar to that mark. Likewise, they are confusingly similar to the "PRO-CUTS" and design mark of Enterprises. Accordingly, both registrations must be added to this proceeding. In the event that the Board ultimately determines that applicant is entitled to a concurrent use registration for the mark "PRO-CUTS" and design, the two registrations will be geographically restricted also.
FN2. In view of the circumstances set forth therein, and because Enterprises filed no objection thereto, applicant's motion filed September 24, 1992 for a further extension of time to respond to Enterprises' motion to substitute is granted, and applicant's response filed October 16, 1992 is accepted as timely.
FN3. These documents were executed after Enterprises' testimony period closed, on August 30, 1989, but before the beginning of applicant's rebuttal testimony period, which, as reset, closed October 25, 1990.
FN4. As noted above, Hair Venture XI was sold to a third party, which assertedly was granted a license by Duke to use the mark for one year only. No reference is made anywhere in the agreement or accompanying attachments to Hair Venture III, notwithstanding the fact that the agreement purports to sell 11 of the limited partnerships to Duke.
FN5. It appears to the Board that this is a case which could, and probably should, be settled. If, upon further consideration, the parties wish to resume negotiations for settlement, and notify the Board thereof, the Board will suspend applicant's time to file the responses called for above. For information concerning settlement agreements in concurrent use registration proceedings, see: Meijer, Inc. v. Purple Cow Pancake House, 226 USPQ 280 (TTAB1985).

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Robert Thorn, Esq. and Jamie Sternberg, Esq., and Christine Relph, Esq.
AEDs are portable emergency medical care devices that can help save the lives of sudden cardiac arrest victims whose hearts suddenly and unexpectedly stop beating. An AED checks heart rhythm, and if needed, can deliver an electric shock to try to restore the heart’s normal rhythm.
Recent developments in AED law may interest California commercial property owners and managers.
A 2014 California Supreme Court case ruled that installation of AEDs was not required in most businesses.
In September 2015, SB 658 amended Health and Safety Code §1797.196(b), changing requirements for both the AED acquirer and the owner of a building in which an AED is installed.
In October 2015, SB 287 added new Health & Safety Code §19300 requiring certain new construction on or after January 1, 2017 to include installation of AEDs.
In September 2018, SB 1397 modified California Health and Safety Code §19300, to require certain properties built before January 1, 2017 but modified, renovated or tenant improved after January 1, 2020, to have AEDs on the premises.
In Michael Verdugo v. Target Corporation (2014) 59 Cal.4th 312, 173 Cal.Rptr.3d 662, and 327 P.3d 774, the California Supreme Court ruled that Target was not required to provide AEDs in Target stores.
 Laws in California have also been enacted regarding placement of AEDs in state-owned and state-leased buildings. Government Code §8455 directs California’s Department of General Services to “apply for federal funds … for the purchase of automated external defibrillators to be located within state-owned and leased buildings” (§ 8455, subd. (a)) and also requires the Department of General Services to “develop and adopt policies and procedures relative to the placement and use of automated external defibrillators in state-owned and leased buildings and ensure that training is consistent with Section 1797.196 of the Health and Safety Code and the regulations adopted pursuant to that section” (Gov. Code, § 8455(b)).
Target maintained that its employees satisfied its common law duty of reasonable care by summoning emergency medical personnel immediately after learning of the patron’s collapse, and that at most it might be required to provide simple first aid measures, but that it had no duty to provide AEDs.
These properties would be required to install an AED even if the structure is vacant or under construction or renovation.
Properties with existing AED appliances in the common areas are not required to install an additional appliance.
In California, under Civil Code §1714.21 (b), an uncompensated “good Samaritan”, who uses an AED in an emergency, is immune from liability, unless the good Samaritan is grossly negligent or intentionally acts to cause harm.
Health & Safety Code §1797.196 (b) specifies requirements for both the AED acquirer (which may be the property owner or a tenant) and the owner of the building in which the AED is installed. The requirements changed in September 2015 under SB 658. A comparison of the text of the old law and the new law is available at Health & Safety Code §1797.196 Changes. New and changed provisions (since 2015) are in italics below.
(Previously, a medical director, physician or surgeon was required to be involved in the acquisition and placement of AEDs. This requirement has been eliminated).
Note that health facilities (defined in Health and Safety Code §1250), buildings containing a health studio, as defined in subdivision (h) of the Health and Safety Code section 104113, or containing a public or private K-12 school have other requirements.
If an AED has been installed in a building, both owners of both the building and the business which acquired the AED should be familiar with and comply with the AED requirements established by law.