Saturday, September 29, 2007

Commercial Law - Construction of Contract - Loan Repayment - Banking - Joint Venture - Guarantee

The lawsuit of Wosley Securities Ltd volt Abbeygate Management Services (Hampton) Ltd [2007], concerned an action which was brought as a consequence of the claimant, the suspect and a company ("ASL") entering into a joint venture understanding ("JVA") to build a block of flats.

It transpired that the development was unprofitable and American sign language went into liquidation. American sign language was incorporated for the intent of carrying out the development and had no assets of its own. The finances to transport out the development were provided by:

§ Type Type A depository financial institution loan to ASL; and

§ A loan from a loan installation granted by the claimant under the footing of a installation missive from the claimant to ASL. This missive was annexed to the JVA.

According to clause 10.3 of the JVA, the suspect guaranteed that American sign language would execute its duties under the agreement. In improver to this, clause 2.12 of the JVA duty-bound American sign language to refund to the claimant all monies that the claimant had advanced in pursuit of its loan facility. Furthermore, clause 4.3 of the installation missive entitled the claimant to debit entry to ASL's loan business relationship 'any direction charge'.

The claimant alleged that a sum of money of £97,762, which included interest, was owed to be paid by the suspect in conformity with the guarantee. Although the claim included only a little portion of the outstanding loan, it was substantially made for 'management charges'. Those complaints were divided into:

§ Charges relating to the installation letter; and

§ Charges provided for in the hard cash flowing appraisal.

The claimant applied for a summary judgment under cardiopulmonary resuscitation 24. As the direction complaints were owed pursuant to the installation letter, the issue before the justice was whether the JVA and the installation missive constituted one understanding or two separate agreements.

If they were one agreement, the suspect accepted (subject to any other defense mechanism it might have) that it would be apt for the direction charges. If they were two separate agreements, the claimant accepted that the suspect would not be liable.

The justice held that there were two separate agreements, and therefore made a declaration that the suspect was not apt for the direction charges. The claimant appealed against this decision.

The entreaty was allowed. The inquiry as to whether there was one understanding or two understandings was irrelevant. Whether there was one understanding or two agreements, there could be no uncertainty that since the installation missive was, at the very least, referred to in the JVA, both the JVA and the installation missive had to be interpreted in each other's context.

Considering clause 2.12 of the JVA and clause 4.3 of the installation letter, it was impossible to defy the decision that as and when the claimant did in fact debit entry any direction complaint to ASL's loan account, the amount in the loan business relationship (including any direction charge) was portion of the advance. According to clause 2.12 of the JVA, it was ASL's duty to pay that sum. As the refund had not been made, the suspect had to be apt as they were the guarantor.

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© RT COOPERS, 2007. This Briefing Note makes not supply a comprehensive or complete statement of the law relating to the issues discussed nor makes it represent legal advice. It is intended only to foreground general issues. Specialist legal advice should always be sought in relation to peculiar circumstances.

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Friday, September 28, 2007

Intellectual Property - Community Trade Mark Application - Intervener

This was a lawsuit before the Court of First Lawsuit of the European Communities ('Court of First Instance') (First Chamber) between Aktieselskabet af 21 November 2001 volt Office for Harmonization in the Internal Market (Trade Simon Marks and Designs) (Case T-477/04) [February 2007].

The applier applied to the Office for Harmonization in the Internal Market ('OHIM) for a Community Trade Mark ('CTM') for the grade 'TDK' in regard of clothing, footwear and headgear. The intervener opposed the application on the evidence of the being of an earlier Community Trade Mark as well as 35 earlier national trade Marks which were registered in regard of social class 9 (apparatus for recording transmittal or reproduction of sound or images).

The earlier tags were a combination of the word grade TDK or the word and a nonliteral mark. OHIM upheld the resistance on the footing of fine art 8(5) of Council Regulation (EC) 40/94 and refused the CTM application. The applier appealed and the Board of Entreaty of OHIM, dismissed the appeal.

The applier then applied to the Court of First Case for the revocation of this decision. The Court of First Case had to see whether the earlier tags had enjoyed a repute and whether the usage of the grade in inquiry would take partial advantage of the typical fictional character or the repute of the earlier marks.

The tribunal held:

§ '…Whilst fine art 8(5) of the ordinance did not define 'reputation', in order to fulfill the demand of reputation, the earlier national grade had to be known to a important portion of the public concerned by the commodity or services covered by that trade mark. In examining that condition, it was necessary to take into consideration all the relevant facts of the case, in particular:-

o the marketplace share held by the mark

o the intensity

o the geographical extent and continuance of its use; and

o the size of the investing made by the project promoting it.

§ The …decision had correctly set out the criteria for the intents of assessing repute within the significance of fine art 8(5) of the ordinance and the Board had not committed any mistake in assessing grounds put forward by the intervener for the intents of establishing the repute of the earlier marks.

§ Having regard to all that material, the …decision had to be upheld in respect of its determination of reputation. The intervener had established the nature, continuance and range of its commercial activities as sees the production, marketing, sponsorship and advertisement of the earlier tags in question. The grounds supported the Board's determination that the earlier tags satisfied the criteria laid down inch the case-law in regard of reputation, namely, that they were known by a significant portion of the public. General Motors [1999] ECR I-5421 considered.

§ The Board of Entreaty was not required to set up existent and present injury to an earlier mark, but rather it had simply to have got available to it Prima facie grounds of a hereafter risk…

§ The conception of taking partial advantage of the typical fictional character of the repute of the earlier tag had to be understood as encompassing cases where there was clear development and free-riding on the coat-tails of a celebrated tag or an effort to merchandise upon its reputation. The stronger the earlier mark's typical fictional fictional character and reputation, the easier it would be to accept that hurt had been caused to it.

§ In the blink of an eye case, the intervener had established the repute of its earlier marks, which had an enhanced distinctive character by ground of the repute attached to them.

§ In the circumstances, the Board had been entitled to take the position on the grounds that were the tag applied for to be used by the applier on sporting clothes (a possibility that could not be ruled out), such as usage would take to the perceptual experience that clothes was manufactured by, Oregon under licence from, the intervener.

§ That in itself was sufficient to represent Prima facie grounds of future risk, which was not hypothetical, of the pickings of partial advantage by the applier of the repute of the earlier marks.'

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© RT COOPERS, 2007. This Briefing Note makes not supply a comprehensive or complete statement of the law relating to the issues discussed nor makes it represent legal advice. It is intended only to foreground general issues. Specialist legal advice should always be sought in relation to peculiar circumstances.

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Monday, September 10, 2007

The DUI Court Process

Successfully navigating your way through a criminal prosecution for Driving Under the Influence in Washington State requires a clear understanding of the DUI court process. In other words, knowing what is coming your way will greatly reduce the amount of stress you feel when fighting a DUI charge.

Although each Court System in Washington varies a little on how they handle the initial stages of a criminal prosecution, the basic outline below will help you understand the Court process as a whole:

When you get arrested for a crime, you will have several court dates to go through. Your first time in Court is called an Arraignment. Your next court date is called a Pre-Trial or Status Conference. You may also have court dates for Motions or Trial.

Arraignment

This is your first time in Court and it's where you are formally told about the charges against you. In the case of DUI, you may already know what the charge is before you even enter the Courtroom. However, there can be additional charges that you were unaware of like infractions for bad driving or additional criminal charges the prosecution filed after your arrest for DUI.

Depending on Jurisdiction, you will either be mailed a Hearing Notice or you will have to look on your citation (about 1/3 from the bottom) where it says Mandatory Court Appearance for your court date and time. If you're not sure about the date or the time, call the Court Clerk's Office (numbers are available via internet). The Court you are in is listed at the top of the citation, e.g. a citation marked "District Court" and the offense happened in Snohomish County , you would do an internet search for "Snohomish County District Court."

Arrive a few minutes early. Most courts will have a computer printout of all the people scheduled for court that day, called a docket. These printouts are generally in plain sight near the courtrooms. Next to your name will be a courtroom number. That's where you need to go. If you get confused or can't find your courtroom, ask at the Court Clerk's office – they are generally very helpful.

Once you get to the right courtroom, be prepared to wait. Most Courts will have either a video or a paper that explains your rights at arraignment. If it's a paper, they will want you to sign your name – saying that you understand your rights.

Eventually, you will be called up in front of the Judge. Don't Panic. This is not your time to explain what happened – there will be ample time for that later. All the Judge wants to know at Arraignment is whether you understand the charge(s) against you and whether you want to plead Guilty or Not Guilty. That's it.

Common sense would tell you that if you did something wrong, you should take it easy on the Court System by pleading guilty and the Court System will take it easy on you by not sentencing you as hard as if you fought the charges. Unfortunately, the Court System is not always based on common sense. In fact, you will most likely be punished worse if you plead guilty at arraignment rather than fighting the charge(s). In other words, DO NOT PLEAD GUILTY!

Once you have pled Not Guilty, the Court will ask you about whether you want a lawyer. The old cliché about "The man that represents himself has a fool for a client" is very true. If you don't understand the rules of court and the law regarding DUI (or any other crime) you don't stand a chance against a well trained prosecutor.

Lawyers come in two flavors: Private and Public Defenders. You do not need to have a lawyer with you at arraignment. If you are planning on hiring a private attorney, you need only tell the Judge that and he or she will be satisfied – but will warn you not to wait too long to hire them. If you can't afford a lawyer of your own choosing then you may qualify for a Public Defender. The Court will have a series of questions for you in order to determine whether or not you qualify based on your income, dependants, etc. The downside with a Public Defender is that you have no control over who is appointed to your case. Even if you qualify and have a Public Defender represent you, you can always have a private attorney take over at any time. It's very common for people with a Public Defender to hire a private attorney – so don't worry, your Public Defender will not be upset if you replace them with a private attorney – they may even be relieved since it means one less case to handle.

After the Judge addresses the issue of your Lawyer, the Court will then address your release status. If you have a clean record, you will probably be released on your promise to come back. If you have a criminal record, the Judge may impose a bail or bond amount to ensure you will come back.

The Court will assign a date when you will need to come back for your Pre-Trial hearing. If you can't make it on that date, make sure to tell the Judge about your conflict so another date can be picked. If a conflict comes up later, contact your lawyer immediately so he or she can file a motion for continuance of the court date.

You will leave with Court with a piece of paper telling you the date and time of your next court date. Don't be surprised if this is two to three months from your arraignment date. This may seem like a long time but don't wait – if you need to find an attorney start immediately as it may take a long time to find the one you want and to get the money together to hire them.

Once you've hired your attorney, that person will need to send in a Notice of Appearance, telling the Court and Prosecution that they represent you. They will also need time to get all of the Police Reports and other documents the Prosecution intends on using against you (collectively referred to as Discovery). After your attorney has all of the Discovery, they will need to sit down with you face to face and discuss your case. One of the bizarre rules in Washington State is CrRLJ 4.7, the rule that allows your lawyer to get the discovery in your case. The same rule actually prevents them from giving you a copy of the discovery – even though it's your case! This rule is even more bizarre considering the fact that if you were to fire your lawyer and represent yourself, the State would be REQUIRED to give you a copy of the Discovery. None the less, nothing prevents your lawyer from giving you access to the Discovery whenever you want – as often as you want; they just can't send you home with a copy.

Pre-Trial Hearings

These hearings take place at Court and in front of a Judge. Their purpose is to make sure that no case "slips through the cracks" by making sure that the case is reviewed in a systematic way. During a pretrial, the Judge wants to know what the status of the case is: Do the parties (Prosecutor or Defense) want to enter a Guilty Plea to something, do they want to set a time for a Motion Hearing, do they want to have a Trial, or do they not know what they want and are simply asking for more time?

These hearings are administrative in nature. That means that they are relatively low stress because nothing will happen at a pretrial unless the Defendant makes it happen. In most cases, the Defendant does not need to say anything other than answering the Judge when the Judge asks if the Defendant consents to what is happening, e.g. asking for a continuance or setting a Motion Hearing. You and your attorney will have discussed what is to take place at the pretrial long before you actually get there.

Most criminal cases have several pretrial dates. There are many reasons why you don't want to resolve your case during the first pretrial: You may have legal issues that need to be decided by a Judge (during a Motion Hearing), your attorney may need longer to negotiate with the prosecution, or you may simply not have decided which way you want to go on your case.

If you are asking the Judge to continue your case, the issue of Speedy Trial will come up. If you are out of custody, then your case must be resolved within ninety days (sixty if you are in custody). When a Defendant asks for a continuance, the Judge will either not want that extra time to count against the 90 days or will ask for a fresh 90 days –starting on the date of the continuance request- before granting the request for continuance. Although this Speedy Trial rule is an important right - as a practical matter, it very rarely determines the outcome of a case. In other words, if your lawyer thinks it's a good idea to waive the Speedy Trial rule, by giving the State more time to bring you to trial, then it probably is in your best interest.

Motion Hearings

Motions are written legal arguments on why evidence in your case (sometime the whole case) should be thrown out. There are potentially hundreds of motions that could be filed in a criminal case. Your lawyer will know which ones (if any) apply to your specific facts.

Motions serve two purposes: First, if you can suppress evidence then you may have a better chance of winning if you go to trial. Second, motions are a wonderful way to change the strength of your case thus making it more likely that the prosecution will want to make an offer of settlement that you make actually want to accept.

A motion hearing looks like a bench trial: They take place in Court and in front of a Judge, There may be witnesses, Both Defense and Prosecution will make arguments to the Judge and finally, the Judge will make a legal ruling on the issue. This is where the similarity to a trial ends. The burden of proof at a motion hearing is substantially less that at a trial and the Judge is required to view the evidence in a motion hearing "in the light most favorable to the State." These two elements combine to make a motion hearing easier for the State to win than the Defense. The reason behind this unfair advantage is actually a good one: The heart of our legal system is the Jury Trial. If you win at a Motion Hearing, then you may bypass the Jury Trial entirely.

Trials

Trials come in two flavors: Bench and Jury. A bench trial is one where the Judge decides everything. A Jury trial is one where six people (twelve in the case of a Felony) decide what the facts are and the Judge decides what the law is.

You can waive (give up) your right to a Jury Trial at any time but if you do so then you generally cannot get it back. If you are ever asked to decide if you want a Bench or Jury trial, you always pick Jury (since you can always change your mind) because if you pick Bench Trial – that's what you're stuck with.

At trial, the prosecution is required to prove each of the elements of the crime beyond a reasonable doubt. Your lawyer will discuss with you the elements (what the state has to prove in your case). Your job as a Defendant is to decide whether or not the State can prove each of those elements. Can any of the elements become unprovable if you win at a Motion Hearing?

The outcome of a trial is easy: you either win or you loose. If you win, go home – you're done. If you loose, then you will typically (though not always) end up with a little more jail time and a little more fines than if you had pled guilty. Is it worth the risk? That's something for you and your lawyer to decide.

Conclusion

Being able to mentally prepare for the types of court dates you will encounter while fighting a DUI charge may not eliminate the stress you feel, but it will knock it down to a manageable level.

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