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rfcconnector.com is just a regular website, which creates the usual server logs, uses Google Analytics and features an order as well as a contact form. Though there‘s absolutely nothing extraordinary or unexpected about this, the European Union still requires us to chant the following legalese incantiations, in order to avoid being harrassed by greedy lawyers „freelancing consumer protection associations“.
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Not every lawsuit involving an insurance company results in the award of attorneys’ fees and costs. The general attorneys’ fee provision, § 627.428, Florida Statutes, only provides for an award of attorneys’ fees when an insured prevails and an actual recovery of insurance proceeds is obtained. In fact, §627.428, “‘has consistently been interpreted to authorize recovery of attorneys’ fees from an insurer only when the insurer has wrongfully withheld payment of the proceeds of the policy.”” Progressive American Ins. Co. v. Rural/Metro Corp. of Florida, 994 So. 2d 1202, 1209 (Fla. 5th DCA 2008) (citing Ray v. Travelers Ins. Co., 477 So. 2d 634, 636 (Fla. 5th DCA 1985)). In Rural/Metro, “because insurance proceeds were not at issue and because [Rural/Metro] was not entitled to recover any wrongfully withheld payment, section 627.428 [did] not apply.” Id. at 1209. If an insured does not recover any money or benefits, or if it is determined that the insurer never wrongfully withheld the payment of any insurance proceeds, then attorneys’ fees are not awardable under §627.428, Florida Statutes.
Further, “[a]n insurer’s voluntary dismissal without prejudice does not entitle the insured to attorneys’ fees, as well as costs, pursuant to Section 627.428 . . . and the insureds cannot be considered as prevailing parties under these circumstances.” O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So. 2d 785, 787-88 (Fla. 3d DCA 1998). The court in O.A.G. recognized the distinction between an action where no monies are paid to an insured and coverage cases where money is paid to an insured, and found that the insured was not entitled to attorneys’ fees because the insurer had dismissed its initial action without prejudice and had not acted to otherwise confess judgment. Id. at 787 (“Under Section 627.428, an insured must obtain some form of recovery due to the voluntary dismissal to be considered a prevailing party for attorneys’ fees.”). As such, there are instances where an insurer may voluntarily dismiss a lawsuit and not be liable for attorneys’ fees. Careful consideration, however, should be given to the particular facts to see whether attorneys’ fees are awardable or not.
Also, § 57.041, Florida Statutes (“§ 57.041”), provides that “[t]he party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment . . . .” “The law is clear that only a prevailing party who recovers a judgment is entitled to recover costs under [§57.041].” Cheetham v. Brickman, 861 So. 2d 82, 83 (Fla. 3d DCA 2003)(emphasis added); see also del Real v. Dawson, 320 So. 2d 20 (Fla. 4th DCA 1975) (finding no abuse of discretion in trial court’s denial of costs after plaintiff voluntarily dismissed lawsuit following several days of trial). If the insured does not recover any judgment as a result of the lawsuit, then the insured may not be entitled to an award of costs under §57.041. Again, much of the analysis turns on whether there is an actual judgment.
Although each case is different and unique, there is no automatic entitlement to attorneys’ fees and costs in all lawsuits where an insurance company is a party. Both insurance companies and insureds should be aware of the situations in which attorneys’ fees and costs are awardable so that each side can make intelligent decisions in litigation. Even if attorneys’ fees are awarded, there is often a dispute over the amount of the attorneys’ fees that are reasonable and properly payable.


D.C. Law Library - § 26–1401.12. Limitations on loan power of universal banks.
↪ § 26–1401.12. Limitations on loan power of universal banks.
§ 26–1401.13. Limitations on investment powers of universal bank.
§ 26–1401.12. Limitations on loan power of universal banks.
(C) Is secured by mortgages or deeds of trust insured by the Federal Housing Administration.
(b) A loan made under § 26-1401.09(a)(2) shall require the prior approval of the board of directors or other governing board of the universal bank or its subsidiary.
(c) An equity interest or other form of interest taken as security in a project funded through a loan made under § 26-1401.09(a)(3) shall require the prior approval of the board of directors or other governing board of the universal bank or its subsidiary.
(d) The Commissioner may suspend a universal bank’s authority under § 26-1401.09(a)(2) or (3) if the Commissioner determines that the universal bank is not exercising, or will not exercise, authority under § 26-1401.09(a)(2) or (3) in a safe and sound manner or that the condition of the universal bank is not, or will not be, safe and sound. In making a determination to suspend a universal bank’s authority under this subsection, the Commissioner shall consider the universal bank’s capital adequacy, asset quality, earnings quantity, earnings quality, adequacy of liquidity, and sensitivity to market risk; the ability of the management of the universal bank; and any other factor the Commissioner determines is appropriate. If the Commissioner suspends the authority of a universal bank under this subsection, the Commissioner may specify how the universal bank or its subsidiary shall treat an outstanding loan.
(e) A universal bank shall not purchase foreign bonds unless the Commissioner promulgates a rule authorizing the purchase of foreign bonds by universal banks; provided, that a universal bank may purchase a general obligation bond issued by a foreign national government if the bond is payable in United States funds. The Commissioner shall not promulgate a rule under this subsection authorizing a universal bank to invest in foreign bonds issued by a single issuer in an aggregate amount that exceeds 10% of the universal bank’s capital.
(f) A universal bank shall not consider any health information obtained from the records of an affiliate of the universal bank that is engaged in the business of insurance in the universal bank’s determination of whether to make a loan under § 26-1401.09(a)(2) or in the determination of whether to make any other loan, unless the person to whom the health information relates consents to the consideration of the health information in the universal bank’s determination of whether to make the loan.
(g) A universal bank shall not loan any part of its capital, surplus, or deposits on its own capital stock, notes, or debentures as collateral security; provided, that a universal bank may make a loan secured by its own capital stock, notes, or debentures to the same extent that the universal bank may make a loan secured by the capital stock, notes, and debentures of a holding company for the universal bank.
(4) Created by the discounting of bills of exchange drawn in good faith against actually existing values or the discounting of commercial or business paper actually owned by the person negotiating the commercial or business paper.
This section is referenced in § 26-1401.09.


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MARIE MOLINARI & another vs. CITY OF BOSTON.
TORT. Writ in the Superior Court dated August 2, 1954.
The action was heard by Hudson, J., on demurrer.
Charles F. Nayor, for the plaintiffs.
Arthur G. Coffey, Assistant Corporation Counsel, for the defendant.
and/or pipes, which . . . were so constructed, maintained and/or operated by the defendant, its agents, servants and/or employees as to be and constitute a nuisance to the plaintiff in her person and property in the position which the plaintiff was required and compelled to assume and occupy in said classroom; and that as a result thereof, the plaintiff was caused to sustain . . . injuries and damage to her person and property . . .."
In count 2 the plaintiff Mary Molinari, mother of Marie, alleges consequential damage.
The defendant avers as ground for demurrer that the declaration sets forth no legal cause of action.
The duty to provide and maintain schoolhouses properly furnished for the accommodation of children entitled to attend the public schools is imposed by general law upon all towns and cities in the Commonwealth. G. L. (Ter. Ed.) c. 71, Section 1, as amended; Section 68, as appearing in St. 1934, c. 97, Section 1. Hill v. Boston, 122 Mass. 344. Unless the municipality otherwise directs, the general charge of the schoolhouses is vested in the school committee, Sections 37 and 68, which shall "keep them in good order, and shall, at the expense of the town [or city] . . . provide fuel and all other things necessary for the comfort of the pupils" (Section 68). See Ring v. Woburn, 311 Mass. 679; Hayes v. Brockton, 313 Mass. 641.
The committee is a board of public officers whose duties are prescribed by statute, and in the execution of its duties the members act not as agents of the municipality but as public officers. McKenna v. Kimball, 145 Mass. 555. Warburton v. Quincy, 309 Mass. 111, 114. Its powers include the employment not only of teachers but also of janitors and custodians, Ring v. Woburn, supra, at page 687, and the absolute right to fix their salaries. Watt v. Chelmsford, 323 Mass. 697, 700. Ring v. Woburn, supra. No other officer has authority over the maintenance of schoolhouses. McKenna v. Kimball, supra.
them. Reitano v. Haverhill, 309 Mass. 118, 122. This principle applies to the "negligent or tortious acts" of those charged with the conduct of the public schools or with the construction and maintenance of schoolhouses. Bolster v. Lawrence, 225 Mass. 387, 389. See Bigelow v. Randolph, 14 Gray 541; Hill v. Boston, 122 Mass. 344; Sullivan v. Boston, 126 Mass. 540, 542; Howard v. Worcester, 153 Mass. 426; Kelley v. Boston, 186 Mass. 165. It is therefore plain that the plaintiffs are not entitled to recover damages from the city. Whether the agent or employee to whom the declaration refers was a teacher or custodian of the schoolhouse and whether the act of such agent or employee was reckless or wilful (Buttrick v. Lowell, 1 Allen 172), the city is not liable for the injury to the pupil.
The plaintiffs gain no advantage by asserting the existence of a nuisance. See Whalen v. Worcester Electric Light Co. 307 Mass. 169, 175; Samuel v. White Fuel Corp. 332 Mass. 264, 267. The case does not come within that somewhat restricted class illustrated by Towner v. Melrose, 305 Mass. 165, where a private nuisance may be created by a municipality in the performance of public work by permitting such use of its land as to damage the property of another outside the limits of the work; in which circumstances the use for the benefit of the public is no justification. The alleged injury to the minor plaintiff resulted from the improper construction or maintenance of the heating system in a building which the school committee was bound to provide in the performance of its public duties.

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§ 182-1 State statutes adopted.
§ 182-3 Classes of licenses and fees.
§ 182-6 Form and expiration of licenses.
§ 182-7 Transfer of licenses.
§ 182-8 Posting and care of licenses.
§ 182-9 Regulation of licensed premises and licensees.
§ 182-11 Revocation and suspension of licenses.
§ 182-12 Nonrenewal of licenses.
§ 182-13 Violations by agents and employees.
§ 182-16 Violations and penalties.
The provisions of Ch. 125, Wis. Stats., defining and regulating the sale, procurement, dispensing, consumption and transfer of alcohol beverages, including provisions relating to persons under the legal drinking age, are adopted and made a part of this chapter by reference. A violation of any of such provisions shall constitute a violation of this chapter.
When required. Except as provided by § 125.06, Wis. Stats., no person shall, within the Town, serve, sell, manufacture, rectify, brew or engage in any other activity for which this chapter or Ch. 125, Wis. Stats., requires a license, permit or other authorization without holding the appropriate license, permit or other authorization as provided in this chapter. See § 125.04(1), Wis. Stats.
Separate license required for each place of sale. Except for licensed public warehouses, a license shall be required for each location or premises where alcohol beverages are stored, sold or offered for sale. See § 125.04(9), Wis. Stats.
The following classes and denominations of licenses may be issued by the Town Clerk, under the authority of the Town Board, upon compliance with law and payment of the fee herein specified, which, when so issued, shall permit the holder to sell, deal or traffic in alcohol beverages as provided in the referenced state statute.
Class "A" fermented malt beverage retailer's license. See § 125.25, Wis. Stats.
Class "B" fermented malt beverage retailer's license. See § 125.26, Wis. Stats.
Six months. A Class "B" license may be issued at any time for six months in any calendar year for 1/2 of the applicable license fee. Such license shall not be renewable during the calendar year in which issued. See § 125.26(5), Wis. Stats.
Special event. See § 125.26(6), Wis. Stats. No organization shall receive more than three licenses in any one calendar year for the sale of fermented malt beverages. There shall be at least two licensed operators at all licensed special events.
Wholesaler's fermented malt beverage license. The fee may not exceed $25 per year or fraction thereof. See § 125.28, Wis. Stats.
Retail "Class A" liquor license. See § 125.51(2), Wis. Stats.
Retail "Class B" liquor license. A retail "Class B" liquor license shall permit its holder to sell liquor in original packages or containers in multiples not to exceed four liters at any one time to be consumed off the licensed premises. See § 125.51(3), Wis. Stats.
Operator's license. See § 125.17, Wis. Stats.
Operators' licenses may be granted to individuals by the Town Board for the purposes of complying with §§ 125.32(2) and 125.68(2), Wis. Stats.
Operators' licenses may be issued only on written application on forms provided by the Town.
Operators' licenses shall be valid for one year and shall expire on June 30 of each year.
Form. Application for a license to sell or deal in intoxicating liquor or fermented malt beverages shall be made in writing on forms prescribed by the Wisconsin Department of Revenue and filed with the Town Clerk at least 15 days prior to issuance. The premises shall be physically described, including every room and storage space to be covered by the license, and including all rooms joined by connecting entrances or not separated by a solid wall.
Application to be notarized. The application shall be signed and sworn to by the applicant as provided by § 887.01, Wis. Stats.
Publication. Prior to issuance of a license under this chapter, the Town Clerk shall publish notice of the application in the official Town newspaper.
Duplicate. Upon approval, a duplicate copy of each application shall be forwarded by the Town Clerk to the State Department of Revenue.
No retail Class "A," "Class A," Class "B" or "Class B" license shall be issued for premises, the main entrance of which is less than 300 feet from the main entrance of any established public school, parochial school, hospital or church. Such distance shall be measured by the shortest route along the highway from the closest point of the main entrance of such school, church or hospital to the main entrance of the premises covered by the license.
This subsection shall not apply to premises licensed as such on June 30, 1947, nor shall it apply to any premises licensed as such prior to the occupation of real property within 300 feet thereof by any school building, hospital building or church building.
Violators of liquor or beer laws or ordinances. No retail Class "A," "Class A," Class "B" or "Class B" license shall be issued to any person who has been convicted of a violation of any federal or state liquor or fermented malt beverage law or the provisions of this chapter or whose license has been revoked under § 125.12, Wis. Stats., during one year prior to such application. A conviction of a member of a partnership or the partnership itself shall make the partnership or any member thereof ineligible for such license for one year.
Health and sanitation requirements. No retail "Class B" or Class "B" license shall be issued for any premises which does not conform to the sanitary, safety and health requirements of the State Department of Commerce pertaining to buildings and plumbing, to the rules and regulations of the State Department of Health and Family Services applicable to restaurants and to all such ordinances and regulations adopted by the Town Board.
License quota. The number of persons and places that may be granted a retail "Class B" liquor license under this chapter is limited as provided in § 125.51(4), Wis. Stats.
Corporations. No corporation organized under the laws of this state or of any other state or foreign country may be issued any alcohol beverage license or permit unless such corporation meets the requirements of § 125.04(6), Wis. Stats.
Effect of revocation of license. Twelve months shall elapse before another license shall be granted to the person whose license was revoked.
Delinquent taxes, assessments and claims. No initial or renewal license shall be granted for any premises for which taxes, assessments or other claims of the Town are delinquent and unpaid or to any person delinquent in payment of such claims, including unpaid forfeiture judgments, to the Town.
Fencing may be required for special events. No special event license shall be issued for any outdoor area which is not fenced and posted with notice that fermented malt beverages may not be carried or consumed outside the fenced area. Every special event licensee shall provide for the services of a certified uniformed officer to enforce the provisions of this subsection.
As a minimum requirement, each holder of a Class "A," "Class A," Class "B" or "Class B" liquor or fermented malt beverage license shall place the same in active use for a period of not less than 90 days during each and every licensing period, such licensing period running from the date of July 1 up through the date of June 30 of the subsequent year.
The term "active use" as used in this subsection is hereby defined to be the normal, day-to-day use of the same in a business operation.
The Town Board, any member of the Town Board or any resident within the Town may petition the Town Board alleging that a violation of this subsection has been committed by a particular license holder, and the Town Board shall then schedule, within 30 days, a hearing to determine whether or not this subsection has been so violated. Notice of hearing shall be given in writing to the alleged violator pursuant to § 125.12, Wis. Stats.
Specific dates and hours of operation for the period in question.
Type of advertising, if any, during the period in question.
Weekly wages paid to employees during operation of the licensed premises for the period in question.
Gross liquor and beer purchase and sales during the period in question.
Sales tax paid to the State of Wisconsin during the period in question.
An approved release from the Department of Health and Family Services for the period in question.
Any other pertinent testimony which may lead to the conclusion that the subject premises was or was not in active operation.
The Town Board, after hearing all testimony of all interested parties, shall determine by majority vote whether or not such license has been in active use, pursuant to the requirements of this subsection above.
If it is determined that the holder of such license is in violation of this subsection, the Town Board may revoke such license.
All licenses shall be numbered in the order in which they are issued and shall state clearly the specific premises for which granted, the date of issuance, the fee paid and the name of the licensee and, unless sooner revoked, shall expire on June 30 thereafter except as otherwise provided by law. The Town Clerk shall affix his affidavit.
As to place. Licenses issued pursuant to this chapter may be transferred to another premises once during any license year as provided in § 125.04(12), Wis. Stats. Application for such transfer shall be made on blanks furnished by the State Department of Revenue. Proceedings for transfer shall be had in the same manner and form as the original application. The fee for such transfer shall be as set by the Town Board.
Every license or permit required under this chapter shall be framed and posted and at all times displayed as provided in § 125.04(10) Wis. Stats. No person shall post such license or permit any other person to post it upon premises other than those mentioned in the application or knowingly deface or destroy such license.
Gambling and disorderly conduct prohibited. Each licensed premises shall at all times be conducted in an orderly manner, and no disorderly, riotous or indecent conduct or gambling shall be allowed at any time on any such premises.
Employment of underage person. No licensee shall employ any underage person who does not have a valid operator's license to serve, sell, dispense or give away any alcohol beverage.
If a retail Class "A" fermented malt beverage license, between 12:00 midnight and 6:00 a.m.
If a retail "Class A" intoxicating liquor license, between 9:00 p.m. and 6:00 a.m.
If a retail Class "B" or "Class B" license, between 2:00 a.m. and 6:00 a.m. on weekdays and between 2:30 a.m. and 6:00 a.m. on Saturdays and Sundays. No licensed premises shall be required to close on January 1. No package, container or bottle sales shall be made after 12:00 midnight.
Hotels and restaurants whose principal business is the furnishing of food or lodging to patrons, bowling alleys, indoor horseshoe-pitching facilities, curling clubs and golf courses may remain open for the conduct of their regular business, but no intoxicating liquors or fermented malt beverages shall be sold during prohibited hours.
Procedure. Whenever the holder of any license under this chapter violates any portion of this chapter, proceedings for the revocation or suspension of such license may be instituted in the manner and under the procedure established by § 125.12, Wis. Stats., and the provisions therein relating to granting a new license shall likewise be applicable.
Effect of revocation. See § 182-5H of this chapter.
Before renewal of any license issued under this chapter is refused, the licensee shall be given written notice of any charges or violations or the reasons proposed for nonrenewal and a copy of any proposed motion for nonrenewal and shall have an opportunity to be heard before the Town Board.
A violation of this chapter by an authorized agent or employee of a licensee shall constitute a violation by the licensee.
Editor's Note: Former § 82-14, Adult-oriented establishments, as amended, was repealed 8-21-2008. See now Ch. 109, Adult Entertainment.
Pursuant to § 125.185(1), Wis. Stats., provisional retail licenses shall be issued by a municipal governing body that issues licenses authorizing the retail sale of fermented malt beverages, intoxicating liquor, or wine.
The Town of Winneconne, Winnebago County, Wisconsin, does hereby ordain that the Town Clerk or Deputy Town Clerk shall be the designated municipal official having the authority to issue provisional retail licenses.
A provisional retail license may be issued only to a person who has applied for a Class "A," Class "B," "Class A," "Class B" or "Class C" license and authorizes only the activities that the type of retail license applied for authorizes.
The Town of Winneconne Town Board will establish the fee for a provisional retail license which shall be paid at the time of application.
A provisional retail license expires 60 days after its issuance or when the Class "A," Class "B," "Class A," "Class B" or "Class C" license is issued to the holder, whichever is sooner. The official who issued the provisional retail license may revoke the license if he or she discovers that the holder of the license made a false statement on the application.
Notwithstanding § 125.17(1), Wis. Stats., a municipal official may not issue a provisional "Class B" license if the municipality's quota under § 125.51(4), Wis. Stats., prohibits the municipality from issuing a "Class B" license.
No person may hold more than one provisional retail license for each type of license applied for by the holder per year.
Pursuant to § 125.17(5)(a), Operator's provisional license, Wis. Stats., a municipal governing body that issues operators' licenses shall issue provisional operators' licenses.
A provisional license may be issued only to a person who has applied for an operator's license under § 125.17(1), Wis. Stats. A provisional license may not be issued to any person who has been denied a license under § 125.17(1), Wis. Stats., by the Town of Winneconne.
Fee. A fee as set by the Town Board shall be paid upon filing of the application.
Expiration of the provisional operator's license shall be 60 days after its issuance or when a license under § 125.17(1), Wis. Stats., is issued to the holder, whichever is sooner.
The official who issued the provisional license may revoke the license if he or she discovers that the holder of the license made a false statement on the application.
Except as otherwise provided herein, violations of this chapter shall be subject to a penalty as provided in Chapter 1, § 1-4 of this Code.


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A personal name mark, unless it is primarily merely a surname, is registrable on the Principal Register without a showing of secondary meaning, and thus is deemed to be inherently distinctive under the Lanham Act if the record shows that it is used in a manner that would be perceived by purchasers as identifying the services in addition to the person.
A personal name mark, unless it is primarily merely a surname, is registrable on the Principal Register without a showing of secondary meaning, and thus is deemed to be inherently distinctive under the Lanham Act if the record shows that it is used in a manner that would be perceived by purchasers as identifying the services in addition to the person. Compare In re Carson, 197 USPQ 554 (TTAB 1977) (JOHNNY CARSON registrable as a service mark where name featured in advertisements for services) and In re Ames, 160 USPQ 214 (TTAB 1968) (NEAL FORD & THE FANATICS registrable as a service mark where name was used on advertisements that prominently featured a photograph of the group and gave the name, address and telephone number of the group's booking agent), with In re Mancino, 219 USPQ 1047 (TTAB 1983) (BOOM BOOM would be viewed by the public solely as applicant's professional boxing nickname and not as an identifier of the service of conducting professional boxing exhibitions) and In re Lee Trevino Enterprises, Inc., 182 USPQ 253 (TTAB 1974) (LEE TREVINO not registrable where specimens of use only identify a famous golfer not services). See also TMEP Section 1301.02(b).
Case Finding: Applicant cites to various authorities that personal name marks are merely descriptive and not entitled to protection absent a showing of secondary meaning. However, applicant has not cited to any prior decisions of the TTAB or of its primary reviewing court in which this proposition has been stated or followed, and we are aware of no such decisions.
Applicant cites to various authorities that personal name marks are merely descriptive and not entitled to protection absent a showing of secondary meaning. However, applicant has not cited to any prior decisions of the Board or of its primary reviewing court in which this proposition has been stated or followed, and we are aware of no such decisions.4 For the reasons discussed below, we are not persuaded that we should follow the authorities cited by applicant on this issue. FOOTNOTE 4 "We note that the Seventh Circuit recognizes some limitation to the general requirement that secondary meaning be shown for a personal name, for such name to be protectible in an infringement case focusing on use, rather than registration of the mark. In Peaceable Planet Inc. v. Ty Inc., 363 F.3d 986, 70 USPQ2d 1386, 1389-90 (7th Cir. 2004), the court stated: "The "rule" that personal names are not protected as trademarks until they acquire secondary meaning is a generalization, and its application is to be guided by the purposes that we have extracted from the case law. When none of the purposes that animate the "personal name" rule is present, and application of the "rule" would impede rather than promote competition and consumer welfare, an exception should be recognized. And will be; for we find cases holding, very sensibly – and with inescapable implications for the present case – that the "rule" does not apply if the public is unlikely to understand the personal name as a personal name. [citations omitted] The personal-name "rule," it is worth noting, is a common law rather than statutory doctrine. All that the Lanham Act says about personal names is that a mark that is "primarily merely a surname" is not registrable in the absence of secondary meaning. There is no reference to first names... The extension of the rule to first names is a judicial innovation and so needn't be pressed further than its rationale, as might have to be done if the rule were codified in inflexible statutory language. Notice too the limitation implicit in the statutory term "primarily."... Treating the personalname rule as a prohibition against ever using a personal name as a trademark (in the absence of secondary meaning) would lead to absurd results, which is a good reason for hesitating to press a rule to its logical limit, its semantic outer bounds.""
A party may develop a trade identity in the mark through his use of this phrase as a trade name.
As part of our finding above, we have determined that opposer "developed a trade identity," in THE CAB CALLOWAY ORCHESTRA through his use of this phrase as a trade name. Otto Roth & Company, Inc. v. Universal Foods Corporation, 640 F.2d 1317, 209 USPQ 40, 43 (CCPA 1981).
Unfair to attempt to tack on purported prior use to establish prior common law rights in direct contradiction to a signed stipulation of the fact of the earliest date if first use.
Finally, applicant's attempt to tack on purported prior use to establish prior common law rights is in direct contradiction to the stipulation it signed whereby applicant stipulated, as fact, that the earliest date upon which it may rely is July 23, 1999. Applicant has not shown good cause to be relieved of this stipulation and such withdrawal made at briefing, after trial, would unfairly prejudice opposer. See American Honda Motor Co., Inc. v. Richard Lundgren, Inc., 314 F.3d 17 (1st Cir. 2002) (citing New Hampshire v. Maine, 532 U.S. 742 (2001)). In view thereof, we hold applicant to that stipulated fact.
An organization need only to have used a name or acronym in a manner that identifies the company by that name or acronym to the public.
Discussion of the history of the registration of a merk consisting merely of the name of an individual.
"In finding "Andre Dallioux" registrable for traveling bags and ladies' hand bags because it comprised an entire name of an individual, the Commissioner stated: ""Under the provisions of the Trade Mark Act of 1905, "registration of a mark which ... consists merely of the name of an individual" was prohibited unless it was printed in such a manner as to comply with certain exceptions set out in section 5 of that Act. The Act was further construed to prohibit registration of marks consisting of surnames, refusal being based upon the construction that a surname constituted the major portion of an individual name, and accordingly was within the prohibition as to the "name of an individual" above quoted...Thus under the Act of 1905, registration of marks consisting of names of individuals, including surnames, was prohibited. In the corresponding section of the Trade Mark Act of 1946, section 2(e), there is no reference to "merely the name of an individual" in specifying the types of marks which shall be refused registration on account of their nature and, in place thereof, section 2 provides that "no trade mark ... (3) is primarily merely a surname." It thus continued to require refusal of registration of marks which consisted merely of surnames, which the court referred to as "the significant portion of the name," in The American Tobacco Co. v. Wix, supra, but eliminated the requirement of refusal of one consisting of "the name of an individual." To refuse registration of the mark as shown in the drawing would be in effect to continue the rule of the Act of 1905, even though the prohibition against registration of a mark consisting of the name of an individual (which included surnames but was not restricted thereto), no longer remains in the law.... It is to be noted that the mark presented is used as a trade mark. A different situation might well be presented in the event an individual name was not used as a trade mark, as for example, if it were used merely as a part of the name and address of the manufacturer rather than as a trade mark."" Ex Parte Dallioux, 83 USPQ 262, 263 (Comm'r 1949). See also Ex Parte Rivera Watch Corp., 106 USPQ 145 n. 9 (Comm'r 1955) ("The discussions also indicate an intent to permit an applicant to register his own full name, but the language finally adopted in Sec. 2(e) does not necessarily permit such a broad interpretation. When read in conjunction with Sec. 2(c), however, such intent probably was expressed, although in a somewhat negative manner.")"
The proper focus of §2(d) is not on "mark" or "trade name," but upon the phrase, "likely to cause confusion, or to cause mistake, or to deceive" and confusion, or a likelihood thereof, is not recognized where one claiming to be aggrieved by that confusion does not have a right superior to his opponent's, or where he has not proved that that which he claims identifies him as the source of goods or services actually does so.
In its decision, the Court specifically "exlud[ed]...other means of trade identification" and "focus[ed] on trademarks." Id. at 44. However, the Court stated that: "[the] proper focus of §2(d) is not on "mark" or "trade name," but upon the phrase, "likely *** to cause confusion, or to cause mistake, or to deceive" [and] confusion, or a likelihood thereof, is not recognized where one claiming to be aggrieved by that confusion does not have a right superior to his opponent's, or where he has not proved that that which he claims identifies him as the source of goods or services actually does so." Id. at 44.
Trade identity rights arise when the term is distinctive, either inherently or through the acquisition of secondary meaning.
More recently the Court in Hoover Co. v. Royal Appliance Mfg. Co., 238 F.3d 1357, 57 USPQ2d 1720 (Fed. Cir. 2001) stated: "Hoover, as the party opposing registration on the basis of likelihood of confusion with its own mark, must establish that "Number One in Floorcare" is distinctive of its goods either inherently or through the acquisition of secondary meaning. See Towers v. Advent Software, Inc., 913 F.2d 942, 16 USPQ2d 1039, 1041 (Fed. Cir. 1990). Hoover's attempt on appeal to characterize its slogan as a trade identity does not relieve it of the burden of establishing distinctiveness. See id. at 946, 16 USPQ2d at 1041. "[T]rade identity rights arise when the term is distinctive, either inherently or through the acquisition of secondary meaning.""
In those situations on which a party relies upon trade name use in support of its claim of damage, as in the case of reliance on a trademark or service mark, the trade name, per se, or the salient feature of the trade name must be of such a nature that the use thereof by the opposer would have been sufficient to create a proprietary right therein, namely, an association by the applicable trade of the name or term exclusively with opposer and its products. As previously indicated, without such an association, the likelihood of confusion would appear to be remote, if not nonexistent.
Shortly after the Otto Roth decision issued, the Board had occasion to address this issue in the context of trade name use. In Fluid Energy Processing & Equipment Co. v. Fluid Energy, Inc., 212 USPQ 28 (TTAB 1981) the applicant sought to register "FLUID ENERGY" and opposer brought a claim of likelihood of confusion under Section 2(d) and asserted prior trade name use of "Fluid Energy" to establish its priority. In citing Otto Roth, the Board stated: "In those situations on which a party relies upon trade name use in support of its claim of damage, as in the case of reliance on a trademark or service mark, the trade name, per se, or the salient feature of the trade name must be of such a nature that the use thereof by the opposer would have been sufficient to create a proprietary right therein, namely, an association by the applicable trade of the name or term exclusively with opposer and its products. As previously indicated, without such an association, the likelihood of confusion would appear to be remote, if not nonexistent." Id. at 35.
The opposer must prove he has proprietary rights in the term he relies upon to demonstrate likelihood of confusion as to source, whether by ownership of a registration, prior use of a trade name, or whatever other type of use may have developed a trade identity.
"Since Alfred Electronics, the Federal Circuit issued its decision in Otto Roth, wherein the Court stated: ""[T]he opposer must prove he has proprietary rights in the term he relies upon to demonstrate likelihood of confusion as to source, whether by ownership of a registration, prior use of a trade name, or whatever other type of use may have developed a trade identity."" Id. at 43."
Trade name rights cannot in our law stand on a higher pedestal of protection than that which has been erected for marks.
"The Board then proceeded to find that "Fluid Energy" was an "apt or common descriptive term" and, thus, opposer failed to establish trade identity rights in "Fluid Energy," and, therefore, failed to establish any legal basis for its claim of damage or demonstrate any likelihood of confusion as to source. Id. at 36. See also Antillian Cigar Corp. v. Benedit Cigar Corp., 218 USPQ 187, 188 (TTAB 1983) wherein the Board stated: ""With the above concession, the question is raised whether the previous use in the United States of an admittedly descriptive trade name provides an opposer with standing to claim damage based on Section 2(d) of the Trademark Act from registration of a confusingly similar mark for identical goods. In our opinion, trade name rights cannot in our law stand on a higher pedestal of protection than that which has been erected for marks. In Otto Roth, at 209 USPQ 45 the Court above mandated that a secondary meaning showing was required in the case of the admittedly descriptive term ‘BRIE NOUVEA' used in the nature of a mark in the circumstances of that case. Accordingly, use of a term as the salient part of a trade name which is primarily geographically descriptive of the products in connection with which it is used cannot endow its user with standing to oppose registration of a mark believed to be confusingly similar thereto, absent a showing that such term has acquired a secondary meaning indicating the source of those goods."""
The early cases interpreting the Lanham Act reviewed the differences between the Trade Mark Act of 1905 and the Lanham Act, concluding that while surnames continue to require a showing of secondary meaning under the Lanham Act, personal or full names do not.
The requirement that pertains to personal names under the Lanham Act is found in Section 2(c) which requires written consent from living individuals.3 In those cases where the name does not identify a living individual it is USPTO practice to require a statement to that effect. For example, the subject application includes the statement "The name [NAME] does not identify a living individual."
The requirement that pertains to personal names under the Lanham Act is found in Section 2(c) which requires written consent from living individuals.3 In those cases where the name does not identify a living individual it is USPTO practice to require a statement to that effect. For example, the subject application includes the statement "The name Cab Calloway does not identify a living individual."
The USPTO continues to view personal names as inherently distinctive and registrable on the Principal Register.
The USPTO continues to view personal names as inherently distinctive and registrable on the Principal Register. See In re J.J. Yeley, 85 USPQ2d 1150 (TTAB 2007) (J. J. Yeley identifies an individual and, therefore, is not primarily merely a surname).
While Lyndale Farm and Alfred Electronics have not been overruled, we must read them in conjunction with subsequent case law that clearly requires opposer to have at least a superior" right.
Thus, while Lyndale Farm and Alfred Electronics have not been overruled, we must read them in conjunction with subsequent case law that clearly requires opposer to have at least a "superior" right. In view of our finding that personal names are inherently distinctive, opposer has established its "superior right" through prior trade name use.
When a plaintiff is asserting prior rights based on a personal name, not a surname, the personal name trademark is inherently distinctive.
To rule otherwise would be in direct conflict with the basic underpinning of trademark law in the United States, which is that rights are obtained through use and not by being the first to file an application. If we applied two different standards it would judicially create a first to file system for personal names. Thus, what cannot be reconciled is the application of different standards to the plaintiff and defendant in these circumstances. Either personal name marks require secondary meaning, in which case we must remand the application for examination under that standard, or they do not, in which case opposer need not show secondary meaning. It is a settled interpretation of the statute, followed by the USPTO for over 50 years, that personal name marks are inherently distinctive under the Lanham Act and we continue to follow that interpretation. We hold that when a plaintiff is asserting prior rights based on a personal name, not a surname, the personal name trademark is inherently distinctive.
Proof of a date of use earlier than that asserted in the application must be established by clear and convincing evidence.
We note, however, even if we were to allow applicant to withdraw that stipulation, the evidence of record is not sufficient to find that there was prior use, not abandoned, which applicant could tack on to its filing date. Proof of a date of use earlier than that asserted in the application must be established by clear and convincing evidence, because of the change of position from one "considered to have been made against interest at the time of filing of the application." Hydro-Dynamics Inc. v. George Putnam & Co., 811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987).
There is no logical basis for holding that a personal name mark which is inherently distinctive for registration purposes must nonetheless be shown to have acquired secondary meaning before it can be relied upon by an opposer in an opposition proceeding.
We see no logical basis for holding that a personal name mark which is inherently distinctive for registration purposes must nonetheless be shown to have acquired secondary meaning before it can be relied upon by an opposer in an opposition proceeding. Thus, we reject applicant's argument regarding opposer's alleged failure to establish secondary meaning in his mark because we consider the mark to be inherently distinctive.

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