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1 THE FRENCH CONSTITUTIONAL CHARTER FOR THE ENVIRONMENT : A HISTORIC IMPLEMENTATION OF JURIDICAL HUMANISM PROTECTING FUTURE GENERATIONS?
3 INTRODUCTION A vast process of intellectual conversion is now at work across frontiers in order to put a transgenerational democracy in place Our world has changed: we live in a globalised world, where the notion of a people is no longer confined in a single state => Thus any modification of any national constitution is at once a message sent to other peoples of the world. Our vision of the world and our relationships to our milieu have also changed => Man is trying to rejoin the milieu and at the same time has ceased to respect the food chain.
4 INTRODUCTION At the Johannesburg Earth Summit in 2002, President Jacques Chirac spoke of the importance of taking the interests of future generations into account: «Our house is burning and we look away. Nature is mutilated, over exploited and canot manage to reconstitute herself any mor, and we refuse to admit it. Humanity is suffering (..)The earth and humanity are imperilled and we are all responsible for this ( ) We cannot say that we did not know! Let us beware lest the XXIst century becomes, for future generations, that of a crime against life» (J.CHIRAC, speech at the Earth Summit in Johannesburg, 2002).
6 INTRODUCTION adoption in 2005 of the Charter for the Environment marks France s entry into this new alliance between the rights of man and the environment From that time the right of a healthy environment has been propelled to constitutional rank. Similarly the Charter for the Environment initiated a revolutionary process => the incorporation into law of environmental rights is an affirmation of the rights of future generations (rapporteur of the Draft). => So it cannot be too highly stressed that concern over safeguarding the interests of future generations was one of the principal motives resulting in the Charter for the Environment.
7 2 ways : INTRODUCTION => examine the formal and substantial composition of the text. How is it presented? What is written there? What does it proclaim? => underline its normative power. How this Charter has been applied by the French Highest Courts? We ll also see that the French Charter s normative force is destined to grow stronger ever since the incorporation in 2008 of a Priority Preliminary rulings on the issue of constitutionality. Finally, I shall not hesitate to propose a reading of this Charter through the lens of the concept of future generations.
8 I THE FRENCH CHARTER FOR THE ENVIRONMENT : AN OVERVIEW The Charter for the Environment is part of French constitutional norms. It was grafted onto the Constitution of October 4 th 1958 which is the foundational text of the Fifth Republic. This Constitution consists of a Preamble and 89 Articles.
9 The : Preamble of the Constitution of October 4 th 1958 consists of two paragraphs. We shall focus on the first «The French people solemnly proclaim their attachment to the Rights of Man and the principles of national Sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946, and to the rights and duties as defined in the Charter for the Environment of 2004». This Preamble relates back to three historic texts, which form the basis of our fundamental rights.
11 A. ANALYSIS OF THE SPIRIT OF THE CHARTER «Man exerts an ever-increasing influence over the conditions for life and over his own evolution; Biological diversity, the fulfilment of the individual and the progress of human societies are affected by certain types of consumption or production and by excessive exploitation of natural resources» Here, in clauses 4 and 5, there is renewed affirmation of the unsustainable ecological pressure resulting from our consumerist lifestyles. It matters that we take up our responsibilities towards all living things but also towards future humanity.
13 B. ANALYSIS OF THE BODY OF THE CHARTER FOR THE ENVIRONMENT : proclamation of ten articles 1- The rights proclaimed Art I Everybody has the right to live in a balanced environment which shows due respect for health. This provision marks the official inclusion of the right to a healthy environment in the corpus of fundamental legal rights Art 7 Everybody has the right, in the conditions and to the extent provided for by law, to have access to any information pertaining to the environment in the possession of public bodies and to participate in the public decision-making process likely to affect the environment.
14 B. ANALYSIS OF THE BODY OF THE CHARTER 2- The duties proclaimed i) Duties incumbent on everybody: Art 2 Each person has a duty to participate in preserving and enhancing the environment Art 3 Each person shall, in the conditions provided for by law, foresee and avoid the occurrence of any damage which he or she may cause to the environment or, failing that, limit the consequence of such damage. Art 4 Each person shall be required, in the conditions provided for by law, to contribute to the making good of any damage he or she may have caused to the environment.
15 B - ANALYSIS OF THE BODY OF THE CHARTER ii) Duties incumbent on public authorities : Art 6 Public policies shall promote sustainable development. To this end they shall reconcile the protection and enhancement of the environment with economic development and social progress This article reaffirms the goal of sustainable development and echoes the 7 th basic principle of the Charter s Preamble, which mentions future generations. Then articles 8 and 9 stress the decisive importance of teaching, research and innovation in plans to preserve the environment and the rights and duties proclaimed by the Charter.
16 B - ANALYSIS OF THE BODY OF THE CHARTER Art. 5 When the occurrence of any damage, albeit unpredictable in the current state of scientific knowledge, may seriously and irreversibly harm the environment, public authorities shall, with due respect for the precautionary principle and the areas within their jurisdiction, ensure the implementation of procedures for risk assessment and the adoption of temporary measures commensurate with the risk involved in order to deal with the occurrence of such damage.
17 II. THE FRENCH CHARTER FOR THE ENVIRONMENT : OUTLOOK French constitutional law for the environment has achieved noble status from now on Criticisms A.CONSOLIDATION OF THE ENVIRONMENT S CONSTITUTIONAL LAW B.B. TOWARDS A TRANSGENERATIONAL READING OF THE RIGHTS PROCLAIMED IN THE CHARTER FOR THE ENVIRONMENT?
18 A. CONSOLIDATION OF THE ENVIRONMENT S CONSTITUTIONAL LAW French constitutional law has surely entered into a historical phase of consolidation. This is due to two concomitant developments 1. The interpretative dynamic of the Charter: vector for a renewed constitutional law for the environment. - Historic decision in 2008, the Constitutional Council clearly affirmed that all provisions/clauses of the Charter have full constitutional validity decision DC of June 19 th 2008, 18 th ground).
19 A. CONSOLIDATION OF THE ENVIRONMENT S CONSTITUTIONAL LAW 1. The interpretative dynamic of the Charter Following, the Conseil d Etat affirmed in its turn by an important decision (CE Oct. 3 rd 2008, n ), that all rights and duties defined in the Charter of the Environment, and similarly all those deriving from the Preamble to the Constitution, have constitutional validity. The Cour de cassation (highest Court for civil torts): the precautionary principle could not be invoked as the basis of a state of necessity legitimising wilful destruction of areas of ground planted with genetically modified crops.
20 A. CONSOLIDATION OF THE ENVIRONMENT S CONSTITUTIONAL LAW 1. The interpretative dynamic of the Charter - Application of the Charter for the Environment within the framework of urgent litigation : urgent litigation in cases of a risk of infringement of a fundamental freedom (article L of the Code of administrative justice) decision of April 29 th 2005 (T.A. Châlons-en-Champagne), it stated: that in adding a Charter for the Environment to the Constitution ( ) the legislator necessarily intended to promote environmental rights to the status of a fundamental liberty with constitutional validity.
23 A. CONSOLIDATION OF THE ENVIRONMENT S CONSTITUTIONAL LAW 2. Priority Preliminary rulings on the issue of constitutionality - Conseil d Etat : 2 QPC (Question prioritaire de constitutionnalité ) per months about the French Charter since july 2010 => until now: no Priority Preliminary ruling on the issue of constitutionnality has been transmitted to the Conseil constitututionnel by the Conseil d Etat. - Cour de cassation: there is a QPC which has been transmitted to the Conseil constitutionnel in order to verify wether some provisions of the code de la construction et de l habitation were not infringing rights and duties proclaimed into article 1 to article 4 of the Charter for the environment.
24 B. TOWARDS A TRANSGENERATIONAL READING OF THE RIGHTS PROCLAIMED IN THE CHARTER FOR THE ENVIRONMENT? - the right to a healthy environment is a very specific human right having unprecedented dimensions closely connected to the aim or protecting future generations It is possible to say that the human right to an environment is at the same time: * an individual right and a collective right * a human right and a right of humanity * a right of today s and tomorrow s humanity * a right of man and a right of nature and for nature to be preserved.
26 CONCLUSION Definitively, the adoption of the French Charter for the environment cleraly marks the entry into a new juridical era. There is a strong aim at defending future generations interests which has been expressed before proclaiming the French Charter for the Environment. In march 2011, Professor Mireille DELMAS-MARTY will teach a specifi course on how to protect future generations as part of a renewed juridical humanism for this century. The Charter for the environment may become the cornerstone of new ways of interpreting human rights in a transgenerational way. The question can be now formulated.
27 Emilie GAILLARD Doctor in Law «Future Generations and Private Law. Towards a Law for Future Generations»?, éd. L.G.D.J., coll. Bibl. droit privé, march 2010, 694p.
CAHIERS DU CONSEIL CONSTITUTIONNEL. Institutional Act pertaining to the Application of Article 61-1 of the Constitution.
Statement by. H.E. Mr. Sabri BOUKADOUM, Ambassador, Permanent Representative of Algeria to the United Nations. Western Sahara.

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Art 7
Art 2
Art 3
Art 4
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Art. 5


The State challenges the venue of Milwaukee County as improper because Rupinski is confined at the Oshkosh Correctional Institution located in Winnebago County. The State argues that, as a result, the writ was improperly filed under Wis. Stat. § 801.50(4). The proper venue for writ of habeas corpus shall be in the county “[w]here the plaintiff was convicted or sentenced if the action seeks relief from a judgment of conviction or sentence under which the plaintiff’s liberty is restrained” or “[w]here the liberty of the plaintiff is restrained if the action seeks relief concerning any other matter relating to a restraint on the liberty of the plaintiff.” Wis. Stat. § 801.50(4)(a), (b).
However, a “court may at any time, upon its own motion, the motion of a party or the stipulation of the parties, change the venue to any county in the interest of justice or for the convenience of the parties or witnesses.” Wis. Stat. § 801.52.
We note from an examination of the record that Rupinski moved the circuit court of Milwaukee to exercise its discretion pursuant to Wis. Stat. § 801.52 to permit the venue to be Milwaukee County. For reasons of judicial economy, the motion was granted. Based upon the record, the trial court did not erroneously exercise its discretion.
See also State ex rel Edwin C. West v. Bartow, 2002 WI App 42, ¶¶9-10 (transfer of habeas venue from county of confinement to county where judgment entered because latter has “all of the documents, regarding the judgment that’s being attacked,” satisfied § 801.52 standard for exercising discretion).


Defendant was arrested on robbery charges and remanded to Rikers Island Correctional Facility. Following procedures laid out in an Operations Order and through the use of a subpoena duces tecum, the People acquired from the New York City Department of Correction dozens of recordings of telephone conversations that Defendant placed to his friends and family. The People used excerpts from those telephone calls at Defendant’s criminal trial. The jury convicted Defendant of two counts of third degree robbery and one count of possession of stolen property. Defendant appealed, challenging the admission of the recordings. The Appellate Division summarily affirmed. Defendant appealed, arguing that the Department’s practice of monitoring the intimate conversations of pre-trial detainees violated his right to counsel, exceeds the scope of the Department’s regulatory authority, and was conducted without Defendant’s consent. The Court of Appeals affirmed, holding that Defendant’s claims were either without merit or unpreserved and, therefore, did not warrant a new trial.
People v Johnson 2016 NY Slip Op 02552 Decided on April 5, 2016 Court of Appeals Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.
Stanley E. Neustadter, for appellant.
Legal Aid Society; Brooklyn Defender Services, amici curiae.
Defendant challenges the People's use at his criminal trial of excerpts from certain recorded telephone calls defendant made to family and friends during his detention at Rikers Island Correctional Facility. The calls were recorded and made available to the prosecution by New York City's Department of Correction (the Department), in accordance with the [*2]Department's policy and practice of monitoring inmates' telephone calls, and releasing those recordings, upon request, to the City's District Attorneys' Offices.
The conditions attendant to pretrial detention, which by its nature imposes limits on communication with the outside world, may, as defendant argues, result in the unwise and imprudent use of unprivileged telephone calls to communicate matters related to a detainee's prosecution. However, we are constrained by the law applicable to the arguments, as narrowed by defendant, to conclude that on the record before us defendant is not entitled to a new trial. Therefore, the Appellate Division should be affirmed.
"(a) Policy. Prisoners are entitled to make periodic telephone calls. A sufficient number of telephones to meet the requirements of this section shall be installed in the housing areas of each facility.
(h) Supervision of telephone calls. Upon implementation of appropriate procedures, prisoner telephone calls may be listened to or monitored only when legally sufficient notice has been given to the prisoners. Telephone calls to the Board of Correction, Inspector General and other monitoring bodies, as well as to treating physicians and clinicians, attorneys and clergy shall not be listened to or monitored."
(40 RCNY § 1-10 [a], [h]).
The Department has implemented its policy and procedures for recording and monitoring inmate telephone calls in an Operations Order. The Order states the Department "shall record all inmate telephone calls and retain these recordings," with the exception of calls to inmates' attorneys and other persons similarly included in the Department's "Do Not Record List."
"Inmate telephone conversations are subject to electronic recording and/or monitoring in accordance with Departmental policy. An inmate's use of institutional telephones constitutes [*3]consent to this recording and/or monitoring."
Another notice is set forth in the Inmate Handbook, advising inmates "that calls may be recorded and/or monitored." Yet another notice is played in English and Spanish at the beginning of each call, and informs the inmate that "[t]his call may be recorded and monitored."
Although the Department indicates that it records all non-privileged calls, it only monitors on a needs basis, meaning a staff member listens to the recorded call when a situation "prompts" review. As a general matter, the Department has identified the types of calls that trigger monitoring as those involving institutional and public safety and security.
The recordings are confidential and not available to the public, but New York City's District Attorneys' Offices may request a copy of an inmate's recorded call. Such requests are decided within three business days by the Department's Deputy Commissioner for Legal Matters, although the Operations Order does not explain the criteria for granting or denying such requests. Upon approval of a request, the copy of the recording is turned over to the District Attorney's representative, who signs a form indicating receipt.
Defendant was arrested on charges of robbery, and when he could not make bail he was remanded to Rikers Island. The People acquired from the Department, following the procedures laid out in the Operations Order and through the use of a subpoena duces tecum, dozens of recordings of telephone conversations that defendant placed to his friends and family.
The People sought to play excerpts of those conversations at trial. In defendant's motion in limine to preclude the use of the recordings he argued that (1) the disclosure was unauthorized and unwarranted under the Department's Operation Order, and (2) that disclosure to the prosecutor undermined defendant's Sixth Amendment right to counsel. The court denied the motion.
At trial, the prosecutor introduced into evidence, played for the jury, and replayed on summation excerpts from nine of defendant's recorded telephone calls. In these calls the defendant made several incriminating statements and repeatedly used offensive and vulgar language to discuss the victim and other individuals involved in the robbery.
The jury convicted defendant of two counts of third degree robbery (Penal Law § 160.05), three counts of fourth degree larceny (Penal Law §§ 155.30 , ), and one count of possession of stolen property (Penal Law § 165.45 ). The Appellate Division summarily rejected defendant's challenge to the admission of the recordings, finding that the calls were admissible, "notwithstanding that defendant's right to counsel had attached."
A Judge of this Court granted leave to appeal (25 NY3d 951 ).
In order to properly address and frame defendant's legal claims, we first clarify what defendant does not allege on this appeal. He does not allege that any conversations with his defense counsel were recorded and admitted at trial, or that the Department permits such monitoring. To the contrary, defendant recognizes that the Operations Order expressly prohibits the recording and monitoring of conversations with an inmate's attorney. Nor does defendant assert that the intention of the City's regulation or the Department's Operations Order is to create and collect information strictly for use by the prosecution against a detainee at trial. Defendant candidly admits that the Department has a legitimate interest in recording and monitoring detainee telephone communications.
Defendant instead challenges what he describes as the Department's practice of "automatic, unmonitored harvesting of intimate conversations of pre-trial inmates," and the subsequent dissemination of the Department's recordings to District Attorneys' offices for use in criminal prosecutions. Defendant claims the practice violated his right to counsel, exceeds the scope of the Department's regulatory authority, and was conducted without defendant's consent. The claims are either without merit or unpreserved and therefore do not warrant reversal and a new trial.
Defendant claims the People, by combing through all the telephone calls are able to obtain information about a defendant's defense strategy and decision-making, outside the presence of counsel, in violation of his Sixth Amendment right to counsel [FN1]. Essentially, defendant claims that the Department acts as an agent for the District Attorney in eliciting potentially damaging statements merely by recording the calls. He points to no individual that the District Attorney's Office, or for that matter the Department, employed as an agent of the government who acted in a manner to prompt or provoke information from defendant. We therefore find no support in the law or facts of this case for defendant's constitutional claim.
Here, the Department did not serve as an agent of the State when it recorded the calls it turned over to the District Attorney's Office. Defendant was not induced by any promise, or coerced by the Department, to call friends and family and make statements detrimental to his defense. Nothing in the record suggests that the Department solicited, elicited, encouraged or provoked these conversations. Moreover, defendant made the telephone calls aware that he was being recorded, and the mere act of recording is no different from an informer sitting mute, not provoking or prompting conversation but merely listening to a statement freely made. Under these circumstances, where "the government's role is limited to the passive receipt of  information, the informer is not, as a matter of law, an agent of the government" (People v Cardona, 41 NY2d 333, 335 ).
Defendant and amici assert that the particular circumstances of detention support treating the Department as an agent because detainees have limited access to outsiders, including their lawyers. Thus, left without options available to those able to make bail, a detainee, out of necessity, makes statements during telephone conversations that are detrimental to the defense. However accurate this description may be of the realities of the Rikers Island pretrial detention environment, and the opportunity presented to prosecutors by the conditions under which detainees are confined, it does not establish the Department acted as an agent in defendant's case.
Defendant argues the Department acted beyond the scope of its authority as provided for in Title 40 RCNY § 1-10 (h), by automatically disseminating recordings of conversations that are unrelated to the Department's legitimate purpose of monitoring threats to institutional security, and without the Department having first assessed the propriety of the District Attorney's request. Regardless of whether the record supports defendant's allegations of ultra vires conduct, he is not entitled to suppression or preclusion of the excerpts on these grounds.
While "violation of a statute does not, without more, justify suppressing the evidence to which that violation leads" (People v Greene, 9 NY3d 277, 280 , citing People [*6]v Patterson, 78 NY2d 711, 716-717 ), suppression is warranted when the violation implicates a constitutionally protected right (Patterson, 78 NY2d at 717). However, defendant fails as a threshold matter to identify a statutory right violated by the Department, instead relying on 40 RCNY § 1-10 (h). We need not determine in this case whether a regulatory violation also implicates the concerns that animate the exception recognized in Patterson because even if it did it would not change our analysis. Section 1-10 (h) specifically provides that inmate telephone calls with attorneys "shall not be listened to or monitored." Thus, section 1-10 (h) only implicates the Sixth Amendment right to counsel to the extent it guards against violations of privileged attorney-client communications. It does not prohibit the Department's supervision over inmates' telephone conversations with friends and families involving non-privileged matters, such as the calls at issue in defendant's case.
Defendant alleges that he did not consent to the Department's dissemination of his recorded conversations simply by using the Rikers Island telephones. According to defendant, his consent cannot be implied because he was never informed that the recordings may be released to the prosecutor. Defendant acknowledges, though, that any such defective notice could be ameliorated by an express Department notification that the recorded calls may be turned over to the District Attorney.
However, we do not reach the merits of this claim, or address whether additional notice by the Department would serve as a best practice, because the claim itself is unpreserved. As the record establishes, defendant failed to argue to the trial court, as he does now, that his consent cannot be broader than the notice provided to him (see People v Gray, 86 NY2d 10, 19  ["in order to preserve a claim of error...a defendant must make his or her position known to the court"]).
Our resolution of the narrowly drawn issues presented on this appeal should not be interpreted as this Court's approval of these practices. Nor does our holding limit the traditional function of the trial judge in criminal matters. Rather, due to the possibility of prejudice inherent in the prosecutor's use of inmate recordings, the trial judge's role as gatekeeper remains unchanged and necessary to ensure compliance with constitutional mandates and the usual rules of evidence and criminal procedure. Accordingly, the order of the Appellate Division should be affirmed.
I agree with the majority's conclusion and with its analysis of the legal issues defendant has raised. In my view, however, the District Attorney's direct and unregulated access [*7]to all of an inmate's non-privileged telephone conversations deserves further mention. The current arrangement between the Department of Corrections and the District Attorney's office creates a serious potential for abuse and may undermine the constitutional rights of defendants who are financially unable to make bail. Something needs to change.
Pretrial detainees like defendant are presumed innocent until proven guilty. Because they have not yet been convicted of a crime, the State's only legitimate purpose for detaining them is to assure their presence at trial, and their liberty may not be restrained more than necessary to accomplish that result (see Cooper v Morin, 49 NY2d 69, 81 , cert denied sub nom. Lombard v Cooper, 446 US 984 ; 4 Sir William Blackstone, Commentaries on the Laws of England at 300 [explaining that pre-trial detention is authorized "only for safe custody, and not for punishment"]).
The Department of Corrections also has a legitimate interest in maintaining the safety and security of its detention facilities (see Campbell v McGruder, 580 F2d 521, 529 [DC Cir 1978]; Cooper, 49 NY2d at 81), and thus has "broad latitude to adopt rules that protect the safety of inmates and corrections personnel and prevent escape or unlawful entry" (United States v Cohen, 796 F2d 20, 22 [2d Cir 1986], citing Bell v Wolfish, 441 US 520, 547 ). To that end and for that limited purpose, the Rules of the City of New York authorize the Department to record and monitor all inmates' telephone conversations with the exception of those placed to attorneys, physicians and clergy (see 40 RCNY § 1-10[h]). Prisoners are clearly and repeatedly cautioned that "telephone conversations are subject to electronic recording and/or monitoring in accordance with Departmental policy" and that the "use of institutional telephones constitutes consent to this recording and/or monitoring" (id.).
The Department's purpose in recording and monitoring these conversations is limited to ensuring the safety and security of its facilities, not harvesting evidence for the prosecution. Yet the People admit that, unknown to defendants, they routinely obtain and review such recordings before trial, in search of anything that can be used against them. The People justify this practice principally on the basis of consent: because the calls were recorded by the Department, and the detainee knew the Department could record and/or monitor the calls, he has no expectation of privacy in the conversations and is not entitled to shield them from the prosecution. But there is "a major distinction between prison authorities having access to prisoners' phone calls for purposes of prison security and discipline, and the prosecutors of that pretrial prisoner having the same access for purposes of gaining advance knowledge of the pretrial prisoner's trial strategy and potential witnesses," particularly in situations (not present in this case) in which a prisoner is representing himself pro se (United States v Mitan, 2009 WL 3081727 at *12 [ED PA 2009]).
It has long been known that a defendant at liberty pending trial already stands a better chance of not being convicted or, if convicted, of not receiving a prison sentence, than [*8]those who are detained before trial, even after controlling for factors such as prior criminal record, seriousness of the charge, bail amount, type of counsel, community ties and employment status (see Barker v Wingo, 407 US 514, 533 n 35 ; McGruder, 580 F2d at 531, citing Ares, Rankin & Sturz, The Manhattan Bail Project: An Interim Report on the Use of Pre-Trial Parole, 38 NYU L Rev 67, 86  and Rankin, The Effect of Pretrial Detention, 39 NYU L Rev 641, 655 ). One study showed that 64 percent of those continuously in jail from arraignment to adjudication were sentenced to prison, while only 17 percent of defendants who made bail received prison sentences (McGinnis v Royster, 410 US 263, 282  [Douglas, J., dissenting], citing Programs in Criminal Justice Reform, Vera Institute of Justice, Ten-Year Report 1961-1971 ). Another study found that 77 percent of defendants who were detained before trial were eventually convicted of some offense, compared to 55 percent of those released pending disposition (Andrew J. Leipold, How the Pretrial Process Contributes to Wrongful Convictions, 42 Am Crim L Rev 1123, 1131 n 27  [citing a 2000 study of the Bureau of Justice Statistics]).
One explanation for this inequity is "the limitations imposed by incarceration" (McGruder, 580 F2d at 532). Pretrial detention hampers a defendant's preparation of his defense by limiting his "ability to gather evidence [and] contact witnesses" during the most critical period of the proceedings (id. at 532; see also Powell v Alabama, 287 US 45, 57 ). During that important pretrial period, defendant, either acting pro se or with the assistance of counsel, negotiates for dismissal or reduction of the charges, engages in motions practice, considers offers to plead guilty and decides which witnesses to call (see United States v Vitta, 653 F Supp 320, 337 [ED NY 1986], citing Wald, Pretrial Detention and Ultimate Freedom: A Statistical Study - Foreword, 39 NYU L Rev 631, 633 ). Indeed, the defendant "is often the key source of factual details on which to base pretrial motions and negotiations" (id.). A defendant free on bail or on his own recognizance can therefore make good use of that liberty by consulting and participating fully with counsel in time-consuming preparations for trial, including tracking down witnesses and evidentiary leads (id.).
The detained suspect cannot make these same preparations because he lacks a similar ability to contact witnesses and gather evidence. Moreover, any telephone conversations with family members or potential witnesses are now turned over to the prosecution for it to review. Not only do prosecutors obtain critical information about key defense witnesses and possible defenses well before those materials would have been disclosed, but they can also use innocuous details to their advantage in negotiating plea deals, for example, by combing through a detainee's recorded conversations for information about his financial limitations or family obligations. The amici suggest that even more unsavory situations exist, such as a prosecutor persuading a defendant's wife to testify against him after confronting her with the defendant's recorded conversations revealing an extra-marital affair. Although the prosecutor in this case did [*9]not engage in any of these more troubling actions and defense counsel did not move for a mistrial or raise a claim of prosecutorial misconduct, it is easy to see the potential for abuse.
And what is the alternative, the People say? Don't discuss any details about your case over the telephone except with your attorney; don't ask your spouse to look into a particular witness's availability or get medical records in preparation for your defense; don't call your friend to ask for help tracking down necessary evidence; essentially, don't talk to anyone other than your attorney about anything related to your case unless you want the prosecutor to know about it. This is not a viable alternative, at least not one that would enable a defendant adequately to "prepare a defense . . . without knowledge of the prosecutors" (Mitan, supra at *8).
Faced with the possibility that anything a defendant says over the phone can (and will) be used against him at trial, the defendant's only real choice is not to use the phones at all. I cannot sanction that result. Trial courts must be vigilant to protect the detainees' constitutional rights, and consideration should be given to placing limitations on the prosecutor's ability to obtain these recordings. Although the recordings in this case were obtained by the prosecutor through a subpoena duces tecum and reviewed by Supreme Court prior to disclosure, in other cases the People's unfettered access can prejudice a defendant and impair his ability to prepare a defense, which "skews the fairness of the entire system" (Barker, 407 US at 532).
Order affirmed. Opinion by Judge Rivera. Chief Judge DiFiore and Judges Pigott, Abdus-Salaam, Stein, Fahey and Garcia concur, Judge Pigott in a separate concurring opinion.
Footnote 1: Amici in support of defendant's Sixth Amendment argument claim that examples exist where the People's access to telephone calls to friends and family provided insight into possible defense strategies and preparation, such as whether to employ an alibi defense. However, since defendant has made no claim that in his case any trial strategy or defense was revealed to the prosecutor we do not address this issue.


Became interested in art and attended the studio of Jiro Yoshihara, where he produced his first works, Ana (Holes).
1948 Together with other young artists close to master Yoshihara he took part in an exhibition called "Seven Avant-garde Artists" held at the Kintetsu department store in Osaka.
1950 Graduates from the Kansai Gakuin University.
1953 Won the Asahi Award at the Kansai art exhibition and the Association Award at the Association of Modern Art Exhibition.
Takes part in the "First Exhibition of the Genbi Group", the movement founded by Muramatsu Hiroshi but of which Yoshihara is the true driving force.
The event, held at the Asahi Biru Gallery in Kobe brought together the group of young artists who were soon to found the Gutai Group.
Under Yoshihara's guidance, Shimamoto and the master’s other students found the Gutai Movement of Concrete Art. The name was Shimamoto's suggestion. He put his house at their disposal, and it became the official headquarters of the group. The "Gutai" bulletin, the official Association review was printed here.
The first "Gutai" bulletin is printed: it contains some illustrations of works by the artists of the group, including one by Shimamoto. The members of Gutai, after joining forces with the members of the Zero Group (Tanaka, Shiraga, Murakami, Kanayama), take part in the "Seventh Exhibition of the Independent Yomiuri", an event that the Tokyo Metropolitan Museum held each year to give young artists an audience. On this occasion their works are signed Gutai.
During the “First Open Air Exhibition of Modern Art: to challenge the mid-summer sun”, the first independent meeting of the Gutai Group held in the Ashiya pine wood, Shimamoto exhibits a metal sheet with small perforations, painted white on one side and blue on the other. In the evening a lamp illuminated the sheet from behind creating an effect similar to that of a starry sky.
In the same year, Shimamoto takes part in the “First Gutai Exhibition” held indoors, at Ohara Kaikan in Tokyo: for the occasion he presents the work Please, walk on this made up of a series of wooden boards on a system of springs that make it difficult to walk on. The artist will go on to produce various reconstructions of this work in the nineties.
On the occasion of the "Second Open Air Exhibition of Modern Art", Shimamoto puts on Performance of Destruction where he experiments with a new technique: shooting little bags full of paint from a cannon to a musical background.
In October 1956, the Gutai Group holds a second exhibition at Ohara Kaikan in Tokyo: Shimamoto places a huge canvas on the floor. In the centre he places a rock, against which he throws bottles with different coloured pigment inside. This is the first bottle crash experiment using a technique which will significantly affect his future work.
“Life” magazine does a cover story on Shimamoto.
1957 Takes part in the first “Gutai Art on the Stage" exhibition at the Sankei Center in Osaka: here he presents his pioneering video and sound works. Involved in the “First exhibition of young Asahi talent” at the Takashimaya department store in Osaka.
At the second “Gutai Art on the Stage” exhibition at the Asahi Kaikan, he projects two different films made by himself on the same screen.
This is what he said about it: “For this event I decided to do something called ‘the movie never seen all over the world”. He drew points and lines on a used 35 mm film given to him by a former pupil of his, washed in vinegar by Shimamoto himself.
The second evening of "Gutai Art on the Stage" was part of the International Festival of Osaka, an event which included the “International Art in a New Era. Informal and Gutai” exhibition at the Takashimaya department store. Here the Gutai Group strengthened its links with the French critic Michel Tapié, whom they had met the previous year when he visited Japan accompanied by the artist Georges Mathieu.
The BBC film him at Toyosaki School as he works on an action painting consisting in throwing glass bottles filled with paint.
An event called “Arte Nuova” is held in Palazzo Granieri at the Turin International Festival. Around a hundred works by European, American and Japanese artists (Gutai and Informal) are displayed.
1960 Takes part in the “International Sky Festival” on the roof of the Takashimaya department store in Osaka.
1961 An exhibition organised by Tapié, “Continuité et avant-garde au Japon" is held at the International Center of Aesthetic Research in Turin.
Shimamoto holds his first solo exhibition at the Gutai Art Gallery, opened that September in Osaka.
1965 Takes part in the "Nul Negentienhonderd vijf en Zegtig" exhibition at the Stedelijk Museum in Amsterdam.
Takes part in the "II Salon International des galeries pilotes” at the Musée cantonal des Beaux Arts in Lausanne, Switzerland.
Takes part in the "IX Exhibition d'art japonais contemporain" at the Tokyo Museum.
1972 Two solo exhibitions: at the Galeria Sobrad in São Paulo and at the Muramatsu in Tokyo. The Gutai Group breaks up upon the death of Yoshihara. Shimamoto takes an interest in Mail Art.
Takes part in the activities of the Artists' Union Group, and is elected secretary general, becoming one of the chief representatives of mail art and developing a new and highly personal conception of man as artist and of work as the product of a social and collective enterprise which manifests itself in a specific project. Every time Shimamoto meets an important artist or political figure, he invites him to write, draw, and place objects on his shaved head, capturing the action on camera. Goes on show in Tokyo, Osaka and San Francisco.
Takes part in "Today’s Notion of Space" exhibition at the Yokohama Municipal Gallery of Art and the retrospective "18 years of Gutai art” at the Osaka Prefecture Art Gallery.
Creates a road made up of 10,000 sheets of newspaper on the banks of the River Mukogawa.
1979 Exhibits 10,000 daily papers at the "World Symposium Invitation Show" in Alberta, Canada. Part of the "After Yoshihara and the Gutai" collective at the Kobe Museum of Modern Art.
1981 One man show organised for Shimamoto at the Osaka Art Centre.
In the same year he exhibits at "Directions in Japanese Art 1 - The 50's - Darkness and Rays of Light" at the Tokyo Museum of Modern Art.
1982 "Towards the Museum of tomorrow - The Theatre of Living Art" at the Kobe Museum of Modern Art.
1983 Elected mayor of the Ryujin International Art Village.
"6 Gutai artists/Artists' Union" exhibition with five other artists at the Itami Municipal Art Gallery.
Performance at the Hundertmark Gallery in Cologne.
1985 On show at Ashiya and Osaka.
Goes to Oxford for the retrospective "Reconstructions: Avant-Garde Art in Japan 1945-1965" at the Museum of Modern Art.
Also in 1985 invited to Madrid for the "Gutai Group: Pintura y Acción" exhibition held at the Spanish Museum of Contemporary Art, and then on to Belgrade at the Muszej Savremene Umetnosti and Kobe at the Museum of Modern Art.
1986 For the "First Osaka Sister-City Festival" Shimamoto invites Guglielmo Achille Cavellini, the leading Italian mail artist.
1990 The Galleria Nazionale d’Arte Moderna in Rome, for the opening of the "Giappone all'avanguardia. II Gruppo Gutai negli anni Cinquanta" exhibition, invites Shimamoto to reproduce his 1956 performance done at the "Second exhibition at the Ohara Kaikan" in Tokyo, adding new meanings connected with the philosophy of the Network. Shimamoto invites postal artists to send him small objects to put inside small bottles filled with paint. The large canvas is inspired by the Network, and comprises paint, grains of rice, shells, sand, and other similar materials.
Invited to take part in the "Gutai Japanische Avantgarde 1954-1965" exhibition organised by the Institut Mathildenhohe in Darmstadt, contributing ten large-scale works. A photo of one of his performances is published in "Flash Art International".
1992 Becomes president of the association of handicapped artists, setting up the first large-scale project for exhibitions by handicapped artists. Interviewed for the most important Japanese newspaper "Mainichi Shinbun" by President Kennedy’s sister.
1993 Invited to the 45th Venice Biennial as a member of Gutai. Performs a bottle crash.
1994 On show at the exhibition organised by Alexandra Munroe: "Japanese Art after 1945: scream against the sky" held at the Guggenheim Museum in New York.
1997 Solo exhibition with a performance: "Shozo Shimamoto, Gutai-Works" at the Hundertmark Gallery in Cologne.
The only Japanese artist to have his photograph included in Art History published by American Albums.
For "Out of Actions: Between performance and the Object, 1949-1979", organised at the Museum of Contemporary Art-MoCA in Los Angeles, his work Holes dating back to 1950 is chosen to be displayed in the same room as Pollock, Cage and Fontana. The exhibition then travelled to Vienna, at the Österreichisches Museum für angewandte Kunst, then on to Barcelona at the Museu d'Art Contemporani and the Tokyo City Museum of Art.
1999 Invited again to the Venice Biennial, on show in the Japanese pavilion with David Bowie and Yoko Ono.
In Verona and Milan for the "Show Shimamoto Italian Festival": displayed works from the fifties and sixties, large-scale installations and documentation on mail art.
At the Galerie Nationale du Jeu de Paume, Paris, a retrospective "Gutai" collective.
2000 A large-scale performance in France, sponsored by the Felissimo Museum, creating an enormous surface out of sheets of newspaper from all over the world which he strikes with balloons filled with paint thrown from a hot air balloon. One of the works produced during the performance is displayed at the Unesco Head Office in Paris.
The Nishinomiya Yacht Harbour hosts the beginning of the work entitled A Proof of Peace, which will be a monument on the site for 100 years.
2001 Invited to the London "Japan Year". Some of his works are purchased by the Tate Modern.
Takes part in the exhibition "Le Tribù dell'Arte" by Achille Bonito Oliva at the Galleria Nazionale d'Arte Moderna in Rome.
Takes part in the artistic event "Who's Norma Jeane?" organised by the Primrose Gallery, London.
2003 Invited to the 50th Venice Biennial presenting the Brain Academy Apartment International Project.
Again in Italy he takes part in "Skin Deep" at the Museo di Arte Moderna e Contemporanea - MART, in Rovereto and at the "Living Theatre/Labirinti dell'Immaginario by Lorenzo Mango and Giuseppe Morra at Castel Sant'Elmo, Naples.
2004 Performance with a helicopter, organised by our Association, “Association bbcc Onlus (ABCOnlus)” and was organized by the architect Luigi de Marchi,as a pre-event prior to the 2005 Venice Biennial.
Solo exhibition at the Galleria Internazionale d'Arte Mauro Pesaro in Venice where he does a performance entitled Nyotaku.
2000 For the second time in Italy he does a performance in Trevi where he throws paint from a helicopter, and a solo exhibition is dedicated to him at the Flash Art Museum, organised by Guglielmo di Mauro.
Solo exhibition in May at Atelier 25 in Reggio Emilia, together with the Associazione Pari & Dispari.
Takes part in the exhibition "Un cuscino per sognare" promoted by the Reggio Emilia City Council in cooperation with the Archivio Pari & Dispari, then at Palazzo Casotti with Nano Art, the smallest work of art in the world, on the hairs of a toothbrush. Participates in two exhibitions: "Senza Confine" at the Galleria Continua in San Gimignano, and "Gutai e AU" at the Spazio Fisico gallery in Modena.
Invited to show ten of his works and two reconstructions of Please, walk on here at the "Zero. Avant-garde Internationale des années 1950-60" collective, then at the Kunst Palast Museum in Düsseldorf and later at the Musée d’Art Moderne in Saint Etienne.
Naples: in the historical Piazza Dante, the event-performance A weapon of Peace: lifted into the air by a crane he holds a small sphere full of coloured paint that he throws onto the canvas with a seraphic gesture. The action is accompanied by the music of Charlemagne Palestine. The performance is followed by the "Shozo Shimamoto. Opere anni '50-'90" exhibition at the Fondazione Morra. Invited by the Chinese Government to hold performances in Beijing and Chang Xing.
2007 He shows forty works dating from the Gutai period up to the present day at the "Shozo Shimamoto: Action Colors 1950-2006" exhibition at the Pier Giuseppe Carini Gallery in San Giovanni Valdarno.
Kobe Fashion Museum: the Felissimo WHITE PROJECT performance. The works created are displayed at the Hyogo Prefectural Diplomatic Establishment and at the Kobe Fashion Museum.
P3 Project for the Venice Biennial; Bottle Crash performance at the cloister of San Nicolò, organized in collaboration with the architect Luigi de Marchi president of “ABCOnlus”. Involved in the organisation of an event in Beijing: "Art Challenged Project", with a number of disabled artists from Japan.
A few of his more representative works displayed at the collective "Artempo" organised by Mattijs Visser and Axel Vervoordt at the Palazzo Fortuny in Venice.
On 7 May he does a performance at Punta Campanella, Naples, involving a group of dancers dressed as brides with their heads covered with glasses full of paint.
On 9 May he does a performance in the cloister of the Certosa di San Giacomo on Capri throwing paint onto eight canvases stretched out on the ground and two double basses beside them, covered in music scores and held up by two young women. Again at the Certosa di San Giacomo on Capri he exhibits a number of his works at the exhibition "Vento d'Oriente".
At Museo Magi ‘900 in Pieve Di Cento (BO): Shozo Shimamoto/Yasuo Sumi - Colours of Peace, with a performance in the Modigliani room at the Museum.
13 November 2008 at the Museo d' Arte Contemporanea at Villa Croce, Genoa.“Shozo Shimamoto. Samurai, acrobata dello sguardo”, by Achille Bonito Oliva.
- Palazzo Barberini, “Cose mai viste II” by Achille Bonito Oliva, dedicated to works from the artists' private collections.
- Palazzo delle Esposizioni, with the Fondazione Morra, the Archivio Pari & Dispari and the Associazione Shozo Shimamoto.
Collective exhibition “Madre Coraggio: l’arte” by Achille Bonito Oliva as part of the Ravello Festival.
Solo exhibition at the “VV8 arte contemporanea” Gallery in Reggio Emilia, in cooperation with the Associazione Shozo Shimamoto, entitled “La danza del colore”, with a performance by the choreographer Mauro Bigonzetti and four dancers from the Fondazione Nazionale di Danza Aterballetto who bring to life the wedding dresses made by Shimamoto for the action in Punta Campanella.
Sculptures and large canvases from the performances in Venice, Punta Campanella, Capri and Genoa displayed at the Basilica of Santo Stefano in Bologna for Arte Fiera OFF in an exhibition organised by Achille Bonito Oliva.
Solo exhibition at the “Nicola Pedana” gallery in Caserta.
Solo exhibition at the Fondazione Morra in Naples. Together with large-scale works, there are two video projections by Mario Franco documenting the Piazza Dante performance in Naples (2006) and that of Punta Campanella.
Invited to carry out two performances at the Moderna Museet of Stockholm, Sweden for the event “AN EXPERIMENTAL CONFERENCE ON ART AND SCIENCE TO CHALLENGE THE MID-SUMMER SUN” where he reinterprets the cannon performance of 1956 and the stage performance of 1957.


Art. 0123 Weber 30 DIC carburettor steel wool air filter.
Art. 0124 Fiat Panda 30 carburettor steel wool air filter.
Art. 0125 Ø 32/35 mm twin-choke carburettor steel wool air filter.
Art. 0127 NANNI Inlet manifold for carburettor Weber 30 IBA or 32 IBA (Fiat 127).
Art. 0127T Chromed steel admission pipe for carburettor Weber 30/32 IBA and Solex 32/34 PBIC.
Art. 0128 NANNI Inlet manifold for vertical twin-choke carburettor diam. 32 mm. over Fiat 500F/L engine.
Art. 0128a NANNI Inlet manifold for twin-choke vertical carburettor diam. 32 mm. over Fiat 500R/126 engine.
Art. 0131 NANNI Decentralized inlet manifold for mounting vertical Solex carburettor 32/34 mm (32/34 PBIC) over Fiat 500/126.
Art. 0132 NANNI inlet manifold for mounting carburettor “Dell’Orto FZD” over Fiat 500/126.
Art. 0133 Fiat500 inlet manifold NANNI for mounting vertical twin-choke carburettor 30 mm ( Fiat Panda 30, 850 special, coupe',spider).
Art. 0133A Fiat 126 inlet manifold NANNI for mounting vertical twin-choke carburettor 30 mm.
Art. 0135 NANNI inlet manifold for horizontal twin-choke carburettor Ø 32-35 mm. over Fiat 500/126 head.
Art. 0136 NANNI inlet manifold for horizontal twin-choke carburettor Ø 40-45-48 mm. over Fiat 500/126 head.
Art. 0137 NANNI inlet manifold for twin-choke carburettor diam. 40-45-48 mm over Panda head.
Art. 0138 NANNI inlet manifold for twin-choke carburettor Ø 32-35 mm over Panda head.
Art. 0138A NANNI two conduits inlet manifold for twin-choke carburettor Ø 40-45-48 mm. (Weber DCOE, Dell'Orto DHLA).
Art. 0139 Abarth 595 SS and 695 light alloy valve cover with inlet manifold for the carburettor Solex 32-34 PBIC.
Art. 0140F Fuel filter diam. 6 mm. Original Fispa.
Art. 0141a New Abarth 595/695 fuel tank.
Art. 0141g New Giannini 500/590/650 fuel tank.
Art. 0142 NANNI light alloy admission pipe with net (32/35 mm. Ø) Carburettor Lancia Fulvia, Fiat 124, 1100 R and Fiat 126.
Art. 0147 NANNI light alloy admission pipe with net for Dell’Orto FZD carburettor 32/28, 30/24.
Art. 0148 Weber 40 DCOE NANNI chromed steel admission pipe Ø 40 mm.
Art. 0149 Weber 45 DCOE NANNI chromed steel admission pipe Ø 45 mm.
Art. 0150 NANNI light alloy air cap for twin-choke Weber carburettor 30 mm.
Art. 0151 Abarth light alloy air cap for twin-choke Weber carburettor 30 mm.
Art. 0154 Carburettor Solex 32/34 PBIC light alloy air cap.
Art. 0156 Fiat 500/126 Abarth stopping up the hole mechanical fuel pump part (for stradal use).
Art. 0157 Fiat 500/126 NANNI stopping up the hole mechanical fuel pump part (for racing use).
Art. 0158 Fiat 500 F/L original Weber carburettorØ 26 mm.
Art. 0159 Fiat 126 carburettor new original Weber 28 IMB diam. 28 mm.
Art. 0159A Fiat 126 Original pipe over the carburettor Weber 28 IMB.
Art. 0160 Twin-choke horizontal Weber 40 DCOE carburettor.
Art. 0161 Twin-choke horizontal Weber 45 DCOE carburettor.
Art. 0163 NANNI modified Ø 28 mm new Weber carburettor for Fiat500/126.
Art. 0164 NANNI perforated pipe from air filter and Weber Ø 28 mm. carburettor (our art. 0163).
Art. 0166 NANNI inlet manifold light alloy spacer for twin-choke horizontal carburettor diam. 32 mm. over Fiat 500/126.
Art. 0167 NANNI inlet manifold light alloy spacer for twin-choke horizontal carburettor diam. 35 mm.
Art. 0171 Kit FZD 32/28 carburettor with manifold and alloy admission pipe.
Art. 0172 Kit Weber 30 DIC carburettor with manifold and light alloy air cap NANNI.
Art. 0172F Fiat 500 F/L twin choke vertical carburettor kit diam. 32 mm.
Art. 0172R Fiat 500/R 126 twin choke vertical carburettor kit diam. 32 mm Abarth.
Art. 0173 Fiat 500/126 kit twin-choke Ø 32 mm horizontal carburettor with manifold and alloy admission pipe.
Art. 0173a Kit twin-choke diam. 32 mm horizontal Weber carburettor over Panda 30 head.
Art. 0175 Kit twin-choke Ø 40 mm Weber new horizontal carburettor with manifold and alloy admission pipe.
Art. 0175A Kit twin choke diam. 45 mm. Weber horizontal carburettor for original head Fiat 500/126.
Art. 0175c Kit twin-choke diam. 40 mm horizontal Weber carburettor over Panda 30 head.
Art. 0175d Kit twin-choke diam. 45 mm horizontal Weber carburettor over Panda 30 Head.
Art. 0176V High quality Viton rubber ring for inlet manifold alloy spacer.
Art. 0178A Fiat 126 carburettor original thermic spacer.
Art. 178B Fiat 500 F/L carburettor original thermic spacer.


text:
for Roure & Roure, LLC.
to cause confusion, to cause mistake, or to deceive.
After the Examining Attorney made the refusal final, Applicant appealed.
to use the mark in commerce.
2 Registration No. 5315827 issued on the Principal Register on October 24, 2017.
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v.
GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015).
3 March 2, 2018 Office Action at 5-16.
marks alone was determinative in finding no likelihood of confusion. Id. at 7, 10-17.
73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567).
marks would be likely to assume a connection between the parties. Coach Servs. Inc.
In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1062 (Fed. Cir. 2003)).
in the context of the similarity of the goods. 6 TTABVUE 8.
in the marks. 4 TTABVUE 4.
3, but Applicant focuses on the claimed differences in meaning and commercial impression.
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting CBS Inc. v.
Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983)).
to be impressed upon the mind of a purchaser and remembered. Presto Prods., Inc.
differentiate otherwise identical marks. See, e.g., Stone Lion Capital Partners, LP v.
8 March 8, 2018 Response to Office Action at 9.
Applicants mark is likely to be viewed as a shortened variation on the cited mark.
appearance to the cited standard character mark GO FRESH BY KINETIC.
that the marks are similar in sound.
the meaning of not stale (i.e. fresh) food, and is a play on the term GO STALE (i.e.
different meaning on the goods on which the mark is encountered by consumers. Id.
matters for judicial notice under Rule 201(b) of the Federal Rules of Evidence. Cf. Boswell v.
word usage of record, they could easily have done so through testimony.).
commercial impression as posited by applicant for its liquid containers. Id.
entitled in the absence of other evidence of the strength or weakness of the mark.
meaning is highly similar in both instances.
11 March 2, 2018 Office Action at 2.
relative weakness of GO FRESH does not render the marks less similar in meaning.
necessary to support a conclusion of likely confusion declines.).
Inc. v. Houston Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
matter of degree. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir.
vacuum bottles; vacuum bottles; water bottles sold empty.
beverages; household storage containers for pet food.
of confusion with respect to any of the goods in that class. Tuxedo Monopoly, Inc. v.
establishing a relationship between the goods with evidence.
application and registration are thus legally identical.
12 March 8, 2018 Response to Office Action at 7.
claimed different commercial impressions of the marks.
accessed on December 17, 2018).
temperature) for later use. Id.
15 March 2, 2018 Office Action at 5-8.
Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir.
2002)). We do not find the Examining Attorneys argument persuasive in any event.
used for a pool filter per se, but rather for a component.
host of other goods are also sold does not show that the identified goods are related.
19 March 2, 2018 Office Action at 5-11.
bottles identified in the application and the thermal insulated containers for . . .
that those goods are related.
containers are similar in purpose or complementary in use.
the Class 11 goods in the application.
notwithstanding the similarity of the marks.
refusal to register as to the goods in Class 11 is reversed.

matches: v. v. v. v. v. v. v.


text:
The following notes provide a simple overview of what happens to your personal information when you visit our website. The term “personal data” comprises all data that can be used to personally identify you. Detailed information on the subject of data protection can be found in our data protection declaration listed under this text.
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If you submit inquiries to us via our contact form, the information provided in the contact form as well as any contact information provided therein will be stored by us in order to handle your inquiry and in the event that we have further questions. We will not share this information without your consent. Hence, the processing of the data entered into the contact form occurs exclusively based on your consent (Art. 6 Sect. 1 lit. a DSGVO). You have the right to revoke at any time any consent you have already given us. To do so, all you are required to do is sent us an informal notification via e-mail. This shall be without prejudice to the lawfulness of any data collection that occurred prior to your revocation. The information you have entered into the contact form shall remain with us until you ask us to eradicate the data, revoke your consent to the archiving of data or if the purpose for which the information is being archived no longer exists (e.g. after we have concluded our response to your inquiry). This shall be without prejudice to any mandatory legal provisions – in particular retention periods. If you contact us by e-mail, telephone or fax, your request, including all resulting personal data (name, request), will be stored and processed with us for the purpose of processing your request. We will not share this information without your consent. The processing of these data is based on Art. 6 para. 1 lit. b DSGVO, if your request is related to the execution of a contract or if it is necessary to carry out pre-contractual measures. In all other cases, the processing is based on your consent (Article 6 (1) a DSGVO) and/or on our legitimate interests (Article 6 (1) f DSGVO), since we have a legitimate interest in the effective processing of requests addressed to us. The data sent by you to us via contact requests remain with us until you request us to delete, revoke your consent to the storage or the purpose for the data storage lapses (e.g. after completion of your request). Mandatory statutory provisions – in particular statutory retention periods – remain unaffected.
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matches:
Art. 6
Art. 21
Art. 6
Art. 6
Art. 6
Art. 6


text:
This action is closely linked to two other threats in the database: Prenda Law v. Godfread and Steele v. Godfread. Several of the related filings can be found in the database entry for Prenda Law v. Godfread.
Plaintiff Paul Duffy is an attorney affiliated with a law firm (Prenda Law, Inc.) that has been representing clients in numerous plaintiff-side copyright cases concerning the sharing of movies over the BitTorrent protocol. These cases have been brought on behalf of several different asserted rightsholders, including the entities AF Holdings LLC and Ingenuity 13 LLC. According to a statement made by attorney Brett Gibbs, who identified himself as Of Counsel to the firm, both AF Holdings and Ingenuity 13 are incorporated in the Federation of Saint Kitts and Nevis. The defendant in one proceeding initiated by the firm has alleged that these entities are shell companies, and that the attorneys bringing the lawsuits own some or all of the these companies.
Multiple filings in these copyright proceedings have included the signature of an "Alan Cooper," who has been identified as a principal of both AF Holdings and Ingenuity 13. On November 29, 2012, an Alan Cooper, through his attorney Paul Godfread, filed a letter with two federal judges in the United States District Court for the District of Minnesota, stating that he had reason to believe that John Steele and Prenda Law were using his name on filings related to these lawsuits without his permission, and that he is not in any way affiliated with AF Holdings or Ingenuity 13. On January 23, 2013, Cooper (through Godfread) sued John Steele, Prenda Law, AF Holdings, and Ingenuity 13 for invasion of privacy and violation of Minnesota's deceptive trade practices statute in the Minnesota District Court for the Fourth Judicial District.
On February 15, 2013, Duffy sued Cooper, his attorney, and 10 unnamed defendants for defamation, false light, tortious interference, and civil conspiracy in the Illinois Circuit Court for Cook County. This follows a nearly-identical lawsuit filed by Prenda Law against the same defendants for the same claims in the Illinois Circuit Court for St. Clair County, and was shortly followed by a high similar lawsuit by John Steele in Florida Circuit Court for the Eleventh Judicial Circuit. All three complaints alleges that Cooper and Godfread have falsely accused the respective plaintiffs of committing crimes and frauds, in both statements online and filings before the Minnesota courts. The complaints identify dozens of statements that are alleged to have been made on different online fora about Prenda Law and its members.
All three of these cases were removed to federal courts: the United States District Courts for the Northern District of Illinois, Southern District of Illinois, and the Southern District of Florida, respectively. On March 6, 2013, John Steele voluntarily dismissed the complaint in the Florida action.
On March 7, 2013, the website dietrolldie.com reported that a subpoena had been issued on February 25, 2013 by the plaintiff in the closely related case Prenda Law v. Godfread to Automattic, Inc., the owner of Wordpress.com, seeking all IP addresses that accessed that website and fightcopyrighttrolls.com. Both websites extensively criticize Prenda Law and its litigation methods, and appear to be the host of many of the comments alleged to be defamatory in Prenda Law's complaint. The subpoena seeks the IP addresses of all machines that accessed the two websites from January 1, 2011 through present. The subpoena had a return date of March 4, 2013.
On March 21, 2013, Godfread and Cooper filed an answer and counterclaims. In addition to denying the claims asserted by Duffy, defendants claimed a series of affirmative defenses, including truth, litigation privilege, a bar on the claim based on Minnesota's anti-SLAPP statute, and the doctrine of unclean hands, based on Duffy's use of defendant Cooper's name in litigation. The defendants also asserted counterclaims, seeking a declaratory judgment of immunity from suit based on Minnesota's anti-SLAPP law, noting the threats of suit made both in communications to the defendants and in the two other defamation filings. The pleading also asserts claims of civil conspiracy and breach of privacy, and seeks to pierce the corporate veil of AF Holdings LLC, Ingenuity 13 LLC, and Prenda Law, Inc.
On April 11, 2013, Duffy filed a motion to strike the affirmative defenses and dismiss the counterclaims. The motion alleges that the counterclaims do not assert facts related to Paul Duffy personally, but instead are based on actions of non-parties John Steele and Prenda Law, Inc. The motion also alleges that the affirmative defenses lack any factual allegations.
On April 16, 2013, Godfread and Cooper filed a motion to dismiss pursuant to Minnesota's anti-SLAPP act. The motion argues that under Illinois conflict-of-laws analysis the Minnesota anti-SLAPP is appropriately applied against the Illinois defamation claim, as Minnesota's interest in the anti-SLAPP is to protect Minnesota speakers.
On April 23, 2013, the court issued a scheduling order staying discovery pending resolution of the anti-SLAPP motion. According to the order, responsive pleadings to the pending motions are due May 15, 2013, with replies due May 29th and argument scheduled for August 14, 2013.
On May 14, 2013, Cooper and Godfread filed an opposition to Duffy's motion to dismiss the counterclaims and motion to strike the affirmative defenses. Defendants argue that Duffy is precluded from further litigating the merits of the defendant's counterclaims following a widely-reported case in the United States District Court for the Central District of California, where a judge made a judicial finding that AF Holdings and Ingenuity 13 were created "for the sole purpose of litigating copyright-infringement lawsuits," and that Prenda Law's principals "stole the identity of Alan Cooper," and "fraudulently signed the copyright assignment . . . using Alan Cooper's signature." The court in that case sanctioned Prenda Law and its principals, including Duffy, following their invocation of the Fifth Amendment to questions concerning their business practices. The defendants further argued that the counterclaims satisfy the pleading standard under Bell Atlantic v. Twombly by giving the plaintiff fair notice of the claims against it, and that striking the affirmative defenses under FRCP 12(f) is inappropriate as the pleading standards of Twombly have not been applied to affirmative defenses.
On May 15, 2013, plaintiff Prenda Law filed a motion in opposition of the motion to dismiss under Minnesota's anti-SLAPP statute. Plaintiff argues that the Minnesota statute does not apply to the action because there is no evidence that the statements were made in Minnesota. Prenda Law also argues that Illinois choice-of-law provisions should prevent application of the Minnesota statute, that application of the anti-SLAPP statute fails on the merits, and that federal courts should not be applying this statute, as it is largely procedural under the Erie doctrine. The defendants replied to this motion on May 28, 2013.
Following the transfer of venue in Prenda Law v. Godfread to the United States District Court for the Northern District of Illinois, the defendants filed a motion to reassign and consolidate these two cases on June 13, 2013. In a minute order on June 28th, the court noted that the plaintiff did not object to the motion to consolidate, and the court consolidated the two actions accordingly.
On August 14, 2013, the court filed an order denying Godfread and Cooper's motion to dismiss under the Minnesota anti-SLAPP, denying Duffy's motion to strike the affirmative defenses, and granting Duffy's motion to dismiss Godfread and Cooper's counterclaims (but allowing those claims to be refiled). Although the court found that Illinois's choice of law provisions dictated that application of Minnesota's anti-SLAPP law was proper in this case, the statute did not apply because the statements at issue were not shown to be directed toward public participation. The court also rejected Godfread and Cooper's counterclaims due to being largely directed toward Prenda Law's actions, instead of those personally done by Duffy, but allowed the defendants to refile amended counterclaims.

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U.S. DISTRICT COURT FOR THE S. DIST. OF INDIANA Defendant.
Andrew Straw, a suspended attorney and frequent pro se filer in this district, has filed yet another lawsuit, this time seeking monetary damages of $5, 000, 000 (five million dollars) arising out of what he contends were due process violations in a disciplinary proceeding suspending him from the practice of law in this Court. Specifically, Straw alleges this Court deprived him of due process by failing to give him a hearing before imposing reciprocal discipline. (Docket #1 at 14). Straw also has moved to proceed in forma pauperis in this case. For the reasons stated below, the Court grants in forma pauperis status but dismisses the action.
A federal statute provides a mechanism for an indigent litigant to proceed “in forma pauperis” - that is, to maintain an action in federal court even if the litigant is unable to pay the associated filing fees. 28 U.S.C. § 1915. Based on Straw's current income and expenses, his motion to proceed in forma pauperis, dkt. , is GRANTED.
The court must dismiss the case if the court determines that the claim of poverty is untrue or that the action is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). An action is “‘frivolous where it lacks an arguable basis either in law or in fact.'” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Nietzke v. Williams, 490 U.S. 319, 325 (1989)).
Straw's action lacks any arguable basis in law or fact, and is frivolous as it seeks to relitigate questions decided against him in multiple other proceedings. Straw's suspension in this Court was a direct result of the Indiana Supreme Court's decision to suspend Straw for violating Indiana's professional conduct rules (specifically, rules prohibiting frivolous claims and arguments). In the Matter of Andrew U.D. Straw, 68 N.E.3d 1070, 1072 (Ind. 2017), cert. denied sub nom. Straw v. Indiana Supreme Court, __ U.S. __, 137 S.Ct. 2309, reh'g denied. This Court (and other federal courts in the Seventh Circuit) then imposed reciprocal discipline against Straw. See In re: Andrew U.D. Straw, No. 1:17-mc-00013, docket # 9 (S.D. Ind. Mar. 16, 2017). Straw moved this Court for reinstatement, and after that motion was denied, he appealed to the Seventh Circuit Court of Appeals. The Court of Appeals affirmed this Court's decision. In re: Straw, ---Fed. Appx. ----, 2017 WL 6539217, at *2 (7th Cir. Dec. 21, 2017) (finding “Straw's argument that the district court must reinstate him is a loser”) (nonprecedential disposition), cert. pending.
The Seventh Circuit rejected the very argument Straw makes in this case, concluding, among other things, that Straw received a hearing in state court and was not entitled to another hearing in this Court before reciprocal discipline was imposed. Id. Straw has recently made, and lost, substantially similar arguments in other cases. See, e.g., Straw v. Seventh Circuit Court of Appeals, No. 2:18-cv-28, 2018 WL 637972 at *3 (N.D. Ind. Jan. 31, 2018) (denying pauper status and dismissing complaint in which Straw sought a declaratory judgment that reciprocal suspension in district court without a hearing violated his rights to due process); Straw v. U.S. District Court for the Western District of Wisconsin, No. 17-cv-842, 2017 WL 5989204 at *3 (W.D. Wis. Dec. 1, 2017) (finding no due process violation in federal district court disciplinary proceeding where state court provided Straw “an opportunity for a full and fair hearing”).
Further, this action must be dismissed under 28 U.S.C. § 1915(e)(2)(B)(iii) because in it, Straw seeks monetary relief against a defendant who is immune from such relief. The District Court for the Southern District of Indiana, as an arm of the United States, cannot be sued without specific statutory consent. See United States v. Shaw, 309 U.S. 495, 500-01 (1940). Furthermore, even though Straw makes no claims against individual judges in this case, the Court notes that judges are absolutely immune from damages claims arising out of their judicial actions. See Stump v. Sparkman, 435 U.S. 349, 356-357 (1978); accord Bolin v. Story, 255 F.3d 1234, 1239-40 (11th Cir. 2000).
In light of the foregoing, IT IS HEREBY ORDERED that this case is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). The motion requesting service of process, dkt. , is DENIED AS MOOT. Final judgment in accordance with this decision shall issue.


text:
THE NATIONAL SHAWMUT BANK OF BOSTON vs. BERNARD GOLDFINE.
A promise in a letter to a bank that the signer would "see that" the bank would "suffer no loss as a result" of a foreclosure of a mortgage pledged by a mortgagee to the bank to secure payment of a debt of a person other than the signer of the letter and the pledgor, properly was found to be supported by a valuable consideration on evidence that the purpose and result of the promise was to induce the bank not to take steps to force payment by the debtor, although the motive of the signer was to benefit an officer of the bank who sought and procured the letter, rather than the debtor or the pledgor.
One who for a valuable consideration promised in writing to "see that" a pledgee of a second mortgage would "suffer no loss as a result" of being "compelled to foreclose" it, became liable thereon when, upon a sale in foreclosure of the first mortgage, less than the debt secured thereby was realized.
CONTRACT. Writ in the Municipal Court of the City of Boston dated May 10, 1935.
Upon removal to the Superior Court, the case was heard by Donnelly, J.
unreasonably fail to foreclose the mortgage given as security by the principal debtor." A request numbered 10 was as follows: "As a matter of law, the inaction on the part of the plaintiff to foreclose the mortgage given as security by the principal debtor, resulting in a loss of the security and/or its value, discharges the defendant from any liability." As to this request, the judge stated: "Since I find as a fact that the failure of the plaintiff sooner to foreclose the mortgage given as security was at the request of the principal debtor, concurred in by the defendant, and was a part of the consideration for the guaranty here in suit, this request has no application. I further find that there was no value in the security above the first mortgage on the property described in the mortgage given as security and that the defendant, therefore, was not harmed by the failure of the plaintiff to foreclose."
T. H. Mahony, for the defendant, submitted a brief.
LUMMUS, J. This is an action upon a promise contained in a letter given by the defendant to the plaintiff on October 7, 1929, relating to a mortgage held by the plaintiff as collateral security. There was a finding for the plaintiff by a judge sitting without jury, with damages assessed at $39,691.25. The case is here on the defendant's exceptions.
note and mortgage were described as pledged as collateral security for the demand note.
On October 7, 1929, Homestead Motor Car Company owed the plaintiff $43,000 on the demand note for $50,000, besides the whole principal of an earlier note for $15,000, dated July 29, 1927. On October 7, 1929, the defendant signed and delivered to the plaintiff a letter addressed to the plaintiff. The body of the letter read: "In the event that you are at any time compelled to foreclose the second mortgage given by Myer Goldblatt to Joseph A. Levin dated July 16, 1928 for $75,000 which mortgage covers the premises numbered 215 Humboldt Avenue, Roxbury, Massachusetts, which has been assigned to you as collateral security for two demand notes of the Homestead Motor Car Company, the first of said notes being dated August 21, 1927 [July 29, 1927?] for $15,000 and the second of said notes being dated July 17, 1928, originally for $50,000 and now reduced to $43,000, I will see that you suffer no loss as a result thereof." But we do not find elsewhere in the record any evidence that the second mortgage was pledged to secure the note for $15,000.
The first question is whether there is evidence of consideration for the promise contained in the letter. No consideration was stated. The defendant was not financially interested in the property, the parties, or the transactions that had previously taken place. But Levin was his brother-in-law. The plaintiff advanced no money in reliance upon the promise, for all had been advanced long before. The occasion for the letter was that one Billman, an officer of the plaintiff, who had negotiated the loans in question, was under criticism from his superior, one Augustine, because of the loans. Billman, who was friendly with the defendant, told him that if he would give a letter of approval of the loans, the pressure upon Billman would be eased and the plaintiff would not compel Billman to require payment of the loans and get them out of the bank. A letter of approval was drawn, but it was not satisfactory to Augustine. After further importunity from Billman, the defendant gave him the letter of October 7, 1929.
If, as the defendant contends, Billman promised that the defendant would not be held liable according to the terms of the letter, such a promise was legally of no consequence. Quincy Trust Co. v. Woodbury, 299 Mass. 565, 567. Lamson & Co. (Inc.) v. Abrams, 305 Mass. 238, 243-244. The letter was given for the purpose, and had the intended effect, of inducing the plaintiff not to take steps to force Homestead Motor Car Company to repay the loan. Even though the motive of the defendant in inducing the plaintiff to forego such steps was to benefit Billman rather than Levin or Homestead Motor Car Company, a valuable consideration for the promise contained in the letter could be found. Of course the plaintiff did not undertake to wait forever or for any definite time. But that did not prevent a finding of consideration. Merchants Discount Co. v. Federal Street Corp. 300 Mass. 167, 169, and cases cited.
substance. It is not questioned that in the liquidation the plaintiff suffered a loss to the amount of the finding for the plaintiff.
The defendant contends that without his consent monthly payments from Homestead Motor Car Company on its notes to the plaintiff were reduced from $500 to $250 in May, 1931. The judge found that the defendant consented. Besides, by a letter from Homestead Motor Car Company to an officer of the plaintiff, dated May 12, 1931, it appears that by agreement with the plaintiff merely "the monthly charge against our bank balance will from now on be $250.00 instead of $500.00." Both notes in question were due on demand, the second mortgage note was overdue, and there is no evidence of any binding extension. Nothing discharging the defendant from liability appears.
The defendant contends that his promise was to continue only a reasonable time in view of all the circumstances, and that unreasonable delay in collecting the notes or in realizing on the security would discharge the defendant. It may be assumed, without deciding, that this is so, although the promise was to take effect if the plaintiff should be compelled to foreclose "at any time." Oxford Bank v. Haynes, 8 Pick. 423. Thomas v. Davis, 14 Pick. 353. Talbot v. Gay, 18 Pick. 534. Whiton v. Mears, 11 Met. 563. Parkman v. Brewster, 15 Gray 271. Rotch v. French, 176 Mass. 1. Zeo v. Loomis, 246 Mass. 366, 368. Maksymiuk v. Puceta, 279 Mass. 346, 356. Agricultural National Bank of Pittsfield v. Brennan, 295 Mass. 325, 329. But it could not be ruled as matter of law that more than a reasonable time had elapsed after the promise, or that the plaintiff had delayed unreasonably.
What has been said covers many of the defendant's requests for rulings of law. Some of them are disposed of by special findings of the judge. They require no further discussion. One of them raises the unimportant question whether the promise contained in the letter is properly classified as a guaranty. See Howell v. Commissioner of Internal Revenue, 69 Fed. (2d) 447, 450.

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§ 82-1 Licenses and permits not assignable.
§ 82-2 Term of license.
§ 82-3 Form and contents.
§ 82-5 Payment of fee required; waiver.
§ 82-6 Disqualification of applicants.
§ 82-8 Effect of suspension.
§ 82-10 Activities requiring license or permit; bond.
§ 82-13 Penalties for offenses.
Building permits — See Chs. 50 and 195.
Development permits for floodplain areas — See Ch. 157.
Every license or permit shall constitute a personal privilege of the person to whom it was issued and is not assignable or transferable and shall not be availed of by any person not named or described therein.
Every license shall be valid for a period of time therein specified, but shall not extend for a longer period of time than the 31st day of December of the year following that in which the license was issued.
Except as otherwise provided by ordinances now or heretofore enacted, every license and permit required by any village ordinance shall be in writing and shall be issued by the Village Clerk under the seal of the village and shall state the name and address of the person to whom it is issued, the term and the purpose thereof and the fee paid therefor.
In case the right granted under any license or permit shall not have been exercised within six months after the date of its issue, such license or permit shall thereupon become void and shall grant no further rights to any person and shall be forthwith surrendered to the Village Clerk upon demand. In such case, no part of the fee shall be refunded.
No license or permit shall be issued until the fee provided therefor has been paid; provided, however, that the Mayor, in his or her discretion, may waive the payment of the fee in case of a license or permit issued to any charitable institution or any association or other group formed or organized for charitable, religious, educational, political or patriotic purposes.
No license or permit shall be issued, reissued or extended to any person whom the Board of Trustees shall reasonably deem unfit or against whom any complaints have been submitted which he or she shall deem justifiable or whose conduct may have been objectionable to the residents of the Village of Hewlett Neck. No license shall be issued to any person whose conduct may, in the judgment of the Board of Trustees, have been immoral or improper or objectionable, or whose business or method of conducting the same shall, in the judgment of the Mayor or the Village Clerk, be likely to disturb or tend to disturb the peace and order of the village or create or tend to create unsanitary or annoying conditions or to litter the streets, sidewalks and other public or private property or is likely to be objectionable to its residents.
Whenever it shall appear to the satisfaction of the Board of Trustees that there has been any false statement or any misrepresentation as to a material fact in the application on which the license or permit was based or that any license or permit has been issued in error or that the conditions are such that the license or permit should not have been issued or that there has been a failure to comply with any statute, ordinance, rule or regulation or for any condition upon which the license or permit was granted or that the further use of the license or permit or the exercise of the privileges thereunder would be contrary to the best interests of the village or its inhabitants or could cause or tend to cause injury, damage or annoyance to persons or property in the village or that other sufficient or adequate reasons exist, the Mayor or the Village Clerk may forthwith suspend such license or permit with or without notice, and without refunding any portion of the license fee, but shall report the facts and circumstances to the Board of Trustees at its next regular meeting. Thereupon, the Board of Trustees may, in its discretion, forthwith and without notice revoke said license or permit or may continue the suspension of such license or permit for such period of time as the Board may determine. The licensee, shall, however, have the right to appear before the Board of Trustees and present such proof as he or she may desire in respect to any such matter. The Board of Trustees may also require the licensee to appear before the Board and show cause why the license or permit should not be permanently revoked, and the failure of the licensee to appear at the time and place appointed shall, without more, be deemed adequate grounds for the permanent revocation of the license or permit.
During the period of time that any such license or permit has been suspended, or after the same has been revoked, the licensee shall be entitled to no more rights or privileges than if the license or permit had never been issued, but all actions done in good faith while the license or permit was in force, and in conformity with statute, ordinance, rules and regulations and the conditions of the license or permit shall be valid.
No licensee, servant, agent or employee of a licensee and no owner, licensee, manager, operator or other person having charge or control of any premises or part thereof wherein or whereon any licensed activity is carried on or performed shall do, or knowingly allow or permit any person, whether in his or her employ or otherwise, to do or permit any act or acts in violation of the terms and conditions upon which such license or permit has been issued, or in violation of any statute, ordinance, rule or regulation applicable thereto.
For the privilege of carrying on activities or of performing the acts for which licenses or permits are required, such licenses or permits shall be issued upon compliance with all of the terms and conditions hereinafter referred to and upon the payment of the fees hereinafter specified, in the appropriate village resolution. No such activities shall be carried on and no such acts shall be performed unless and until the required license or permit has been issued and the specified fee has been paid. No such fees shall be returnable.
The fee schedule for licenses and permits is on file in the village offices and available for inspection during regular business hours. The fees contained therein may be amended from time to time by resolution of the Board of Trustees.
In the discretion of the Village Clerk issuing the license or permit, or the Mayor, he or she may impose such terms and conditions as deemed reasonable and proper for the protection of the village and the persons and property therein, or to avoid damage or annoyance to persons who may be affected by the exercise of the license or permit.
Any person, firm or corporation who or which shall violate the provisions of this chapter shall be punishable, upon conviction, as provided in Chapter 1, General Provisions, Article II.