Intellectual Potpourri: A Law Blog


Boulevard Crown Town Ale - A Kansas City Royals Brew?

posted Dec 19, 2014, 8:51 AM by Calan McConkey   [ updated Dec 19, 2014, 9:13 AM ]

As anyone from Kansas City knows, the Kansas City Royals made it all the way to the World Series in 2014. The first World Series appearance since 1985.  Although they eventually lost in game 7 to the San Francisco Giants, the entire city went Royal-crazy during the month of October.

One of the local KC breweries -- Boulevard Brewery -- decided to capitalize on the success of our "boys in blue." Just this week, Boulevard released a limited edition beer called "Crown Town Ale." 

   
        Here is a view of the front label:


        And now the back label:


Notice anything out of the ordinary? If you read closely, you should see that never once is "Kansas City Royals" mentioned. But yet we all know exactly what Boulevard is referencing. Boulevard conveniently uses similar colors to the Royals (gold and blue) and makes reference to the "hometown team" and the "boys in blue."

So why do they do this? The answer is simple: intellectual property. If Boulevard uses "Kansas City Royals" then they are using a trademark for financial gain. In a world without intellectual property, Boulevard could have easily called this the "2014 Royals World Series Brew" and everyone could easily identify the connection to the team and their achievements. Instead, they have to beat around the bush but eventually reach the same result. And their plan worked -- the limited release sold out around KC in a matter of minutes. I was somehow fortunate enough to get my hands on a bottle. It took a little bit of work, but I will go pretty far to support my "boys in blue."
 

Excelsior Springs Municipal Court - Helpful Information

posted Jun 19, 2014, 3:38 PM by Calan McConkey

Having a law office located in Excelsior Springs means that I am regularly in the Excelsior Springs Municipal Court. Court is typically held twice per month on Monday evenings at 6:00 p.m. The Court is located on the top floor of the Hall of Waters building in downtown Excelsior Springs.

For the reference of my clients and the general public, I thought it might be helpful to provide the local court rules for the Excelsior Springs Municipal Court. Below you will see the court rules that are given to each person that attends court. By reading the rules ahead of time you may be more prepared for your court case and better informed when deciding how to proceed.

As always, please contact my office if you have any questions about the Excelsior Springs Municipal Court or if you are seeking representation for a ticket you have received.

Hopefully this helps!

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Clever Commercial for Super Bowl XLVII, or 'El Plato Supreme'

posted Feb 1, 2013, 1:16 PM by Calan McConkey   [ updated Feb 1, 2013, 1:17 PM ]

I was just sent an email from a dedicated reader (HT: CJM) with a video for a commercial that will air this Sunday, February 3, 2013, during Super Bowl XLVII. The commercial features three well-known actors -- including one of my favorite fictional attorneys, Saul Goodman from Breaking Bad -- sitting around discussing ideas for Samsung in relation to the Super Bowl.

For a quick primer on the intellectual property rights revolving around the Super Bowl, check out this post I did back in February 2011: Super Bowl (TM) Weekend and IP Rights

Long story short, the term SUPER BOWL is a trademark of the NFL and heavily protected. In fact, a story came out just over a week ago how the NFL demanded that the trademark rights in the term HARBOWL be turned over to them. Here is a link to an article for those interested in reading more. For a quick digression, my take on that issue is the applicant would have had a good argument to maintain the mark, but he would have faced heavy resistance from the NFL, which would have tried to bury him in legal documents and attorney fees. And it looks like some of the law professors quoted in the article would agree with me.

Ok, back to the main topic. After reading my past blog entry, it should be clear what the actors in the commercial are doing. Just like many other businesses, Samsung is trying to piggyback on the Super Bowl, but they cannot actually say the protected term. What results is a creative way to convey a message to the audience without *technically* using any trademarked terms.

As a summary, here are the terms that they decide on, compared with the trademark they are trying to avoid:

  • Trademark: Baltimore Ravens
    • Commercial uses: "Baltimore black birds"
  • Trademark: San Francisco 49ers
    • Commercial uses: "San Francisco 50 minus 1ers"
  • Trademark: Super Bowl
    • Commercial uses: "El Plato Supreme" (Spanish for "big plate")
    • Commercial uses: "The Big Game"
Enjoy the commercial (video below) and the El Plato Supreme this weekend.

Samsung "Big Game" Commercial



Understanding Mediation in Missouri: How It Could Help With Your Divorce, Custody Dispute, or Other Legal Matters

posted Jan 25, 2013, 2:08 PM by Calan McConkey   [ updated Jan 25, 2013, 2:09 PM ]

It has become apparent to me that there is a lot of misinformation when it comes to mediation. Because of this, I thought it might be worthwhile to write a post explaining the process of mediation, and the potential benefits associated with mediation.

First things first, what is mediation?

According to Missouri Supreme Court Rule 17.01(b)(4), "Mediation is a process in which a neutral third party (the mediator) facilitates communication between the parties to promote settlement. A mediator may not impose his or her own judgment on the issues for that of the parties." Based on this definition, it should be clear that the mediator is, on one hand, an integral piece of the process but, at the same time, the mediator cannot unilaterally resolve the issues. In fact, mediators are trained to not force a settlement. The ultimate objective of a mediator is only to help the parties come to their own agreement on their own terms.


Why should you consider mediation to resolve your dispute?

By it's nature, a lawsuit is an adversarial process. In a given lawsuit you typically have the plaintiff versus the defendant. The conflict created in this system is sometimes necessary and impossible to overcome. The court system is designed to deal with this type of conflict because, at the end of the day, we have judges in place to decide and resolve all issues. That being said, I have heard the phrase (and have preached it to my clients) that "the worst agreement reached by the parties is better than the best decision that is made by the judge." Essentially what this means is that if you and the opposing party can come to an agreement that you are both at least somewhat satisfied with, it is more than likely better in the end than having a judge make a decision after listening to your testimony in court and spending a few minutes reviewing your file. The judge then moves on to another case and you are forced to literally live with their decision.

To take it a step further, another common saying is "a fair decision by the judge is one where neither party is happy." Pretty interesting. To drive the point home, the idea of mediation is for the parties to resolve their conflict on their own -- with the help of a mediator -- in order to maximize satisfaction. My own personal take is that mediation is resolution-oriented while litigation is typically conflict-oriented.


How long does mediation take?

To give a completely unsatisfactory (yet honest) answer, it just depends. But the mediation process is not a "one size fits all" procedure. I can tell you that the first session is usually scheduled for 2 hours. Additional time may be necessary, depending on the progress made during the first session and how many issues need to be resolved.

To put it another way, consider this example: Let's say you and your spouse have been married for 10 years, have 2 children, own property and have some debt. It has taken you 10 years to get to where you are now, do you really expect to be able to resolve all of your disputes in 2 hours? A typical contested divorce usually lasts, at a bare minimum, 6 months. Mediation is not a miracle cure by any means, but if it results in a mutually-agreeable settlement after a few sessions, it is likely quicker, cheaper and more satisfying than a drawn out court battle.


What are the benefits of mediation?

This question is probably best answered in bullet points:
  • In mediation, both participants in the conflict decide the resolution. Not the mediator. Not the judge. To put it another way, mediation empowers the parties -- they have the ability to make their own decision, to choose their own fate.
  • Specific needs and issues are addressed in mediation, rather than following general standards used by the court. For example, a court may decide that the marital residence must be put up for sale and the parties split the proceeds. In mediation, the parties can agree to do whatever they think is best with the house. Maybe they want to rent it out? The options are almost limitless when the parties are searching for common ground to resolve the conflict.
  • The participants to the mediation can learn the skills necessary for resolving future disputes. Mediation can train the parties new ways to deal with and manage conflict.
  • The parties are encouraged to be on the same page during mediation. The objective is no longer conflict-related, but, instead, it is now resolution-oriented with the common goal being resolving the issues at hand.
  • The parties do not have to get along with each other in order to successfully use mediation. In fact, the process is designed for people in conflict.
  • The mediation process itself is confidential. This encourages open and honest discussion during the process. The information only comes out once a settlement is reached by both parties.
  • It can be faster than litigation, which, in lawyer speak, means saving money.
  • Mediation can be used hand-in-hand with litigation. Just because you have a pending court case does not mean you cannot use mediation. If mediation is used and an agreement is reached, then the pending case can either be resolved or dismissed.

Hopefully this helps to explain and clarify the mediation process a little. More and more courts (and judges) are not only recommending mediation, but also ordering mediation in certain cases. Although mediation is not a miracle cure, it is definitely worth considering when a conflict arises.

**If anyone is interested in participating in mediation, the Law Office of Calan T. McConkey LLC offers mediation services for the following counties in Missouri: Clay County, Ray County, Platte County, Jackson County. Calan T. McConkey is a qualified domestic relations mediator under Missouri Supreme Court Rule 88 and Missouri Supreme Court Rule 17.**

**In addition to domestic relations mediation, mediation services are also offered in the following areas: landlord tenant disputes, dissolution of marriage (divorce), paternity, modifications, and other civil matters. For more information, please contact the Law Office of Calan T. McConkey LLC at 816-476-6400.**

Missouri Driving While Intoxicated Update: Is a Dirt Bike a 'Motor Vehicle'?

posted Sep 14, 2012, 3:02 PM by Calan McConkey   [ updated Sep 14, 2012, 3:07 PM ]

An interesting case was handed down recently (September 12, 2012) that reminds me of a previous post I did about riding animals or riding a tandem bike while intoxicated (neither of which seem to be illegal). Conveniently enough, however, I had started wondering about the possibility of receiving a DWI for driving a motorized wheelchair while intoxicated. If you - like me - had this same curiosity, then you are in luck. But first, the case of the DWI dirt bike.
   

To start, Missouri Statute Section 577.010.1 provides that a "person commits the crime of driving while intoxicated (DWI) if he operates a motor vehicle while in an intoxicated or drugged condition."

According to the above statute, the crime of DWI requires a showing of two elements: (1) operation of a motor vehicle, and (2) while in an intoxicated or drugged condition. This is pretty straightforward. But what is not instantly clear is what constitutes a "motor vehicle." This issue was recently addressed in State v. Slavens (MO App S.D. 2012).


In Slavens, the defendant was charged and convicted of DWI for riding his 'dirt bike' on his own private property. Not helping the matter, Slavens was involved in an accident that required medical personnel and the highway patrol. After their arrival, Slavens admitted to drinking and a blood sample drawn resulted in a BAC of 0.226. Needless to say, he was intoxicated. After the conviction, Slavens appealed and argued that he should not be guilty of DWI for riding his dirt bike on his own property. In addressing the issue, the court had to determine what exactly qualifies as a 'motor vehicle' under the DWI statute.

In trying to wrap their heads around the definition of 'motor vehicle,' the court did a good job of explaining what IS and is NOT a motor vehicle. For example:

  • A lawnmower is NOT a motor vehicle. At least when it comes to stealing. Fainter v. State, 174 S.W.3d 718 (Mo. App. W.D. 2005).
  • BUT a lawnmower IS a motor vehicle when it is operated on a public highway. Stonger v. Riggs, 85 S.W.3d 703 (Mo. App. W.D. 2002).
  • A golf cart IS a motor vehicle when it is operated on a public highway. Covert v. Fisher, 151 S.W.3d 70 (Mo. App. E.D. 2004).
  • A farm tractor IS a motor vehicle when it is operated on a public highway, specifically addressed in relation to a DWI. State v. Powell, 306 S.W.2d 531 (Mo. 1957).
  • A motorized bicycle or mini-bike IS a motor vehicle when it is operated on a public highway, specifically addressed in relation to a DWI. State v. Laplante, 148 S.W.3d 347 (Mo. App. S.D. 2004).

In distinguishing the above examples, the Slavens court stated:

"What we have in the present matter differs from the [above] cases in that we have a dirt bike, a non-traditional vehicle in terms of its intended operation on trails and tracks, being operated on a defendant's private property as opposed to a public roadway or highway. Like the lawnmower in Fainter, which had a primary purpose of cutting grass in addition to being able to transport people, the dirt bike in the present matter was intended to ride through mud, jump piles of dirt and debris, and navigate mountainous off-road terrain in addition to having the ability to transport people."

The Court really makes dirt bikes sound like a lot of fun. 


Continuing with their analysis, the Slavens court acknowledged the ambiguity in the DWI statute:

"As worded, with no definition of 'motor vehicle' referenced and no mention of whether         operation on public property is a requirement, 'the [DWI] statute allows for more than one     interpretation."

Because of the ambiguity, the court applied the rule of lenity and essentially gave the defendant the benefit of the doubt, for lack of a better [non-legal] term.

Based on all of the above, the court then explained their decision to reverse the conviction by stating the following:

"It is clear in the present matter that a finding that [the defendant's] operation of his dirt bike on private property exposed him to prosecution under the DWI statute would lead to an illogical result and would open a Pandora's Box of potential locations and situations which would subject people to new criminal liability." 

To really drive their point home, the Court elaborated on the "Pandora's Box" analogy by giving some interesting examples:

"Under the reading of the statute urged by the State, every citizen who consumes alcoholic    beverages while on a golf course, then operates a golf cart upon that private property, would be potentially subjected to DWI sanctions. This goes for every person who imbibes spirits and then mows his own lawn with a riding lawn mower, as well as people who operate motorized wheelchairs. In fact, the State in this case agreed that prosecution of an operator of a motorized wheelchair, within the confines of the operator's home, would be possible if this conviction stands. Such unreasonable and absurd results cannot have been intended in the drafting of the statute by the legislature."

And there you have it. The Court graciously answered our pressing question about motorized wheelchair DWIs.

To summarize, here is what we have learned from the Slavens case:**

  • You cannot receive a DWI if you ride a dirt bike on your own property.
  • You cannot receive a DWI if you drive a golf cart on the golf course (or your own property).
  • You cannot receive a DWI if you drive a wheelchair on your own property.
  • BUT, you can probably receive a DWI if you drive any of the above (including a lawnmower, tractor or a mini-bike) on a public roadway.

As a parting gift, I will leave you with another question to contemplate in the quiet of your study: Can an intoxicated person driving a motorized wheelchair on the public sidewalk receive a DWI? It's not private property but it also does not seem to qualify under public roadway. Do we have a potential loophole? I really don't know.


**Disclaimer: nothing in this educational article should be construed as legal advice, nor should it be interpreted as encouraging drinking and driving of any kind, even if it is apparently legal under Slavens.


What is a Ponzi Scheme?

posted Jul 30, 2012, 9:41 AM by Calan McConkey   [ updated Jul 30, 2012, 9:44 AM ]

Preface: My current law clerk, John G. Bowen, has recently started his own website at www.LawBowen.com. He is about to begin his final year of law school at the University of Illinois and intends to start practicing bankruptcy law after taking (and passing) the bar exam in the summer of 2013. In the meantime, he intends to use his website to write about topics that deal with bankruptcy. Although my office does not currently offer bankruptcy services I do know a couple of attorneys in the area that do. More importantly, it is a service that John plans to offer in the Kansas City area once he becomes a licensed attorney.

The article that follows is a re-post from his website.


I recently read the book “Ponzi’s Scheme” by Mitchell Zuckoff. It came up in conversation a few times and people have been asking me, “So, what is a Ponzi Scheme?”

Charles Ponzi was arrested and served jail time in Canada for check forging. This was years before his famous scheme in Boston.In a Ponzi scheme an individual or company offers investors a high interest rate and pays them using funds coming in from new investors. The schemer usually claims to have found some secret or loophole that allows them to obtain such high returns.

Charles Ponzi, an Italian immigrant, orchestrated such a large scale version of this in 1920 that they named it after him. He was not the first and was certainly not the last to try the old financial swindle. It used to be called “robbing Peter to pay Paul” and surely you have heard of Bernie Madoff.

So how did Ponzi actually pull it off?

Well he got pretty lucky, and was desperate. To get a better understanding of the how it worked, it is important to understand his sales pitch. He claimed to have a method of obtaining astronomical, but low risk returns by exploiting an arbitrage opportunity in international reply coupons.

The international reply coupon was a financial instrument that could be redeemed for postal stamps in any participating country (63 at the time). It was useful if you wanted someone to reply to your letter, but you wanted to pay for it. The coupon price was set every year in each country based on currency exchange rates.

After the recent world war some countries were left with vastly depreciated currency, especially Italy. Country officials had more important things to do than change the price of the coupons, creating arbitrage opportunity.

Ponzi developed a plan. First, he would buy lire (Italian currency) with U.S. dollars. Then he would buy the international reply coupons in Italy at the pre-war price (because officials had not adjusted the price for the depreciated lira). Now Ponzi has many more coupons than he could buy with the original dollars. He would then trade them in at U.S. post offices for U.S. stamps, and sell those stamps for cash.

He explained this plan to potential investors, careful to keep the details a secret. In reality, although the idea had merit (it would work on a very small scale), he never figured out how to pull it off. The coupons and international arbitrage in general were too obscure to the average person for them to question the plan.

Ponzi gave his pitch, filled with charm, and offered 50% return in 45 days. If you invested $100, he would give you a note. In 45 days you could exchange the note for $150. Word spread fast, especially once people were actually paid after the first 45 days (although most reinvested the principal and interest right away).

The money poured in. The whole scheme lasted less than a year and at one point Ponzi claimed to have over $15 million (keep in mind, this was 1920). By the very nature of the scam, Ponzi was always insolvent. Each new investor increased his liabilities more than his assets. Eventually it all came crashing down and Ponzi served jail time and was forced into bankruptcy. Twenty thousand people who held Ponzi notes in the end got back less than 40% of their investment.

If an investment sounds too good to be true, it probably is.


Link to article on John Bowen's site: Ponzi Scheme

The Dutch Uncle: Social Networking Concerns, George Zimmerman in Jail and DOMA Struck Down

posted Jun 8, 2012, 2:40 PM by Calan McConkey   [ updated Jun 8, 2012, 2:41 PM ]

*Guest post by John G. Bowen*

I learned a term this week that I think exemplifies the goal of this [hopefully recurring] blog post: "The Dutch Uncle." According to Wikipedia, "Dutch Uncle is a term for a person who issues frank, harsh, and severe comments and criticism to educate, encourage, or admonish someone." While I intend to avoid the parts about being harsh and admonishing someone, I do plan to provide brief legal tidbits with the hopes of education. So, with that said, here we go...

(A) Apparently, the Department of Homeland Security (DHS) has released a list of keywords and phrases it monitors on some social networking sites (after a Freedom of Information Act suit). Obvious words like “assassination” and “Domestic Nuclear Detection” are on the list. But some of the words are less vicious, or at least way too vague, and I wonder why they made the list, including “gas,” “cloud,” “electric,” “ice,” “San Diego,” and “drug,” to name a few. It may raise privacy concerns that Big Brother is monitoring our social networking sites based on our usage of words with the smallest connection to terrorist activity. What concerns me more is how ineffective this system must be if it includes so many everyday words. More importantly, what kind of terrorist is going to tweet or post on Facebook about their abominable plans? It makes me think there is another reason for this monitoring.

                                                                                                Source: FORBES

(B) The U.S. Circuit Court of Appeals for the First Circuit struck down part of the Defense of Marriage Act (DOMA) last week on equal protection and federalism grounds.  The court ruled that DOMA discriminates against married gay couples because it denies them federal benefits without support from an adequate federal interest. These federal benefits include the right to file joint federal tax returns, receive Social Security survivor benefits, and access to certain health insurance benefits for the spouses of government employees. The ruling was unanimous but did not reach the part of DOMA that says states cannot be forced to recognize gay marriages performed outside of that state. It seems very likely that this case will end up in front of the U.S. Supreme Court.

                                                                                                Source: ABA JOURNAL

(C) George Zimmerman, who was charged with second degree murder after he shot and killed Trayvon Martin, allegedly in self-defense, has now shot himself in the foot. His bond was revoked last week because the judge found out that he “allowed his financial situation to be misstated in court” back in April.  His wife, Shellie, essentially told the court they had no money, failing to mention the fact that they had a website that raised about $200,000 for his legal defense. He is back in custody now waiting for a new bond hearing. Because he is the only real witness to the shooting (that is alive, anyway), his self-defense claim rests heavily on his credibility to the jury, which he may have just flushed down the toilet.                                                                                                                                                                                                                                                                                Source: MSNBC


*The Law Office of Calan T. McConkey specializes in providing intellectual property services to clients in the Kansas City area, along with representing clients in Jackson County, Clay County, Ray County and other surrounding areas. Please contact the office at 816.476.6400, or by using the "Contact Us" tab on the left for more information.*

A Summary of the Missouri Driving While Intoxicated (DWI) Process

posted Jun 5, 2012, 10:49 AM by Calan McConkey   [ updated Jun 5, 2012, 10:49 AM ]

*Guest post by John G. Bowen (law student at the University of Illinois and summer law clerk)*

Being charged with drunk driving is a very serious legal matter. This post is intended to help shine a light on the convoluted legal process that results from a driver's lapse in judgment.

To start, it is worth noting that there are a few bits of information that can be beneficial to a driver who has been stopped under the suspicion of driving while intoxicated, or DWI as it is commonly known. 

Missouri is an “implied consent” state, so if you refuse to take the alcohol/drug test when requested by a law enforcement officer (known as a “refusal”), your driver’s license will be revoked for one year. RSMo 577.020.

If you are requested to submit to any such test and you ask to speak to an attorney, you are allowed twenty minutes to attempt to contact one before making your decision. RSMo 577.041.

Assuming you choose to take the test and register at over a 0.08 BAC, two different legal processes come into play: (1) criminal and (2) administrative.


    (1) Criminal Alcohol Law:

The first DWI offense is a class B misdemeanor, which can result in a prison sentence of up to 6 months and/or a fine of up to $500. A second DWI offense can carry a prison sentence of up to one year and a fine of up to $1,000, and is a class A misdemeanor. A third DWI offense is up to 4 years in jail and a fine of up to $5,000, and is a class D felony. 


    (2) Administrative Alcohol Law:

This law deals with the suspension of the driver’s license automatically. If you are arrested for driving with a BAC of .08 or higher (.02 for minors), you are subject to the administrative punishment imposed by the Missouri Department of Revenue. Under the administrative law, your license can still be suspended even if the ticket was disposed of in court or reduced to a lesser charge.

Your first administrative action results in a 30-day suspension of your license, followed by a 60-day restricted driving privilege (you may be allowed to drive to work and other important places). The second administrative action results in a one-year revocation, and if it is less than five years after your first suspension, then your license can be denied for five years. If you get a third suspension, your license can be denied for ten years.

Once notified of the pending suspension, the driver has only 15 days to appeal the administrative portion of the punishment. If you do not appeal the suspension, it automatically takes place 15 days after the arrest. This is final. If you file an appeal, but the suspension is upheld, your driving privileges will be suspended 15 days after the final decision is mailed by the Department of Revenue. This decision may be reviewed by the circuit court upon petition by the driver, but the suspension is still imposed while the review is pending.

In order to get your license back after the 90-day period, the driver must fulfill the reinstatement requirements. These requirements typically include completion of a Substance Abuse Traffic Offender Program (SATOP), paying the license reinstatement fee to the DOR, and proof of SR-22 insurance. If you have more than one alcohol-related traffic offense on your record, you must show proof that you installed an ignition interlock device — essentially, a breathalyzer in your car that you must take in order to start your vehicle. If your license was revoked for one year or longer, you will need to pass the driver examination again.

For more information about the administrative aspects of the DWI process, visit the Missouri Department of Revenue WEBSITE.


**As you can see, the DWI process can become very confusing. If you are considering hiring an attorney to represent you for a DWI or any other matter, please contact the Law Office of Calan T. McConkey LLC for a free consultation at 816.476.6400, or by using the "Contact Us" form on this site.**

Are Red Light Camera Tickets Legal?

posted Apr 19, 2012, 1:06 PM by Calan McConkey   [ updated Nov 8, 2013, 1:50 PM ]

**UPDATE (11/08/2013): The Eastern District Court of Appeals for Missouri (Edwards v. City of Ellisville, ED99389) struck down a municipal red light camera ordinance due to its conflict with state law. Specifically, the ordinance at issue created "strict liability" for the owner of a vehicle that runs a red light and redefines a moving violation as a non-moving violation.

The city of Kansas City, Missouri recently announced that they would suspend enforcement of the red light camera tickets based on this ruling. Other municipalities with similar ordinances are following suit (including Excelsior Springs, Missouri). It is likely that this issue will find its way to the Missouri Supreme Court for a final determination of its legality. The court in Edwards specifically mentioned the case cited below, Nottebrok, and found that Nottebrok "is overruled and no longer good law."**
------- Original Post Below from 4/19/2012 ---------

It's a common question that I receive from clients. They get a ticket in the mail giving them information on how to go online and see a video of their vehicle running through a red light. They are instructed to pay a fine -- usually in the $100.00 range -- and it will all be over. No court appearance and no points on your license. Just a check and a stamp, or even a credit card. Seems a little too easy for the city and police, right? Right.

For a little background on how the cameras and tickets work, you can go HERE to see a video (it definitely takes a "pro-camera" stance, linked from the Excelsior Springs Police Department website)

The Missouri Court of Appeals for the Eastern District recently tackled the red light ticket question in City of Creve Coeur v. Nottebrok, No. ED 96396 (Mo. App. E.D. 2011). In this case, the driver challenged the $100 red light ticket based on the municipal ordinance violating Missouri law. In upholding the ticket and the ordinance, the Court explained that the photographs on the ticket:

    "clearly showed the vehicle's license plate number and the make and model of the vehicle, which were registered to [the driver]. [The driver's] liability for violation of [the ordinance] was        predicated on her status as owner of the vehicle regardless of whether she was the driver of the vehicle at the time the violation occurred"

Based on this explanation, it seems like the red light tickets are essentially being treated as parking tickets. The police don't care who actually parked the vehicle, just who owns it.

Continuing on, the Court also discussed how the violation could be considered a non-moving, no-point violation when running a red light which, by statute, should be a 2-point moving violation for disobeying a traffic control device.

    "Municipalities may enact ordinances that create additional rules of the road or traffic regulations that meet their needs and traffic conditions as long as the ordinance's provisions are consistent with and do not conflict with state law."

At first glance, it seems that declaring the red light ticket a no-point violation is in direct conflict with the Missouri statute that states disobeying a traffic control device is a 2-point violation. The explanation for this apparent discrepancy lies in the language of the ordinance. The ordinance "did not prohibit 'running a red light;' rather, [the] ordinance prohibited the presence of a vehicle in an intersection when the traffic control signal for that intersection was emitting a steady red signal for the direction of travel..."

By applying this logic, the Court concluded that the ordinance did not violate the Missouri statutes that require the assessment of points against a driver for moving violations.

Well isn't that neat?

So the City can backdoor the ordinance by saying we are not giving you a ticket for running a red light, but rather for being in the intersection when you are not supposed to be there. Based on this rationale you would receive the same ticket if you parked in the middle of the intersection and then the light turned red. I guess that makes sense.

I have a few closing thoughts on the matter. First, here is a statement from the Excelsior Springs Police Department regarding the red light cameras from their website:

    "The City of Excelsior Springs began utilizing automated camera enforcment (sic) of red light violations in April 2009.    While the capturing of data is automated, a mailed violation is not.  Assigned officers review video and photographs of every recorded  violation and then make the determination if the violation warrants a citation.  If approved by the officer, a citation is mailed to violator.  The violator is provided online access to view their photos AND VIDEO of the actual violation."

I have not read the Excelsior Springs ordinance that covers red light tickets (one of my personal complaints is that the City of ES does not have their ordinances available online; absolutely no excuse for that) but I imagine it is very similar to the one at issue in the Nottebrok case.  Assuming that to be the case, it is fair to say that the ordinance would withstand judicial scrutiny under the Nottebrok framework. It is worth noting that you can apparently fill out a form to dispute your ticket if you were not the one actually driving the car. I've never seen the form but I imagine it requires you to implicate the person who you believe was driving or claim that your vehicle was stolen. And if you don't want to point the finger at someone else (most likely your buddy, spouse, etc.) then you get stuck with the ticket.

At the end of the day, we are expected to be understanding of the system because -- as the video from above argues -- the red light cameras have been proven to significantly decrease accidents. I think that this, for the most part, could be true. What concerns me is that the ones making most of the money off of these tickets are not the cities themselves, but rather the companies that install the cameras, review the videos and then forward the information on to the police for final determination. 

As an example, according to the Columbia Tribune, the City of Columbia made $18,047 in net revenue in 2010 from the 5 red light cameras while the company installing and maintaining the cameras made a profit of $58,608.

So what is the take away from this? To me, it essentially means there is an apparent financial incentive to install these systems in more and more intersections and not just the "dangerous" ones that see more accidents. The foot-in-the-door argument of "safety concerns" is what helps most drivers stomach this big brother-type of oversight, but would the supportive drivers feel the same if they knew that the safety of motorists could soon turn into a secondary consideration? To me, it seemingly boils down to a business decision, not one of safety as most people are led to believe. I could imagine a scenario in which the company in charge of the camera installation encourages the city to install systems in more intersections. The city thinks: more cameras, safer roads. The company sees it as more cameras, more money.

But wait! I decided to check out the website for the company that handles the red light tickets for Excelsior Springs. In looking at the FAQs on www.ViolationInfo.com, an interesting statement is made:
            Q: Isn't the main purpose of red light cameras to make money?

    A: No. The objective of photo enforcement is to deter dangerous driving behaviors and increase public safety. Signs and publicity campaigns typically warn drivers that photo enforcement is in use. Revenue is generated from fines paid by drivers who continue to run red lights, but this is a fundamental component of all traffic enforcement programs. Ideally, ticket revenue should decline over time as the cameras succeed in deterring would-be red-light runners. Independent audits of red light camera enforcement have shown that in some jurisdictions fines exceeded program costs, while in others, the programs didn't break even.

Wait, did I read that right? The programs actually lost money in some places? I guess they bring this up to try and show the camera usage is not 100% financially-driven but I think the upshot is even more interesting: cameras are being placed and/or maintained in apparently non-dangerous intersections. How else can they explain that an intersection is losing money? I'm sure their counter-argument is the intersections were dangerous before the systems were installed and the cameras cut down on the violations. Ok, fine. But based on this rationale, shouldn't we just go ahead and put red light cameras in EVERY intersection to make sure they don't become more dangerous? I wonder if there have been any studies that look at not only the decrease in accidents for a camera intersection, but whether -- as a result -- other non-camera intersections become more dangerous because they are not being monitored.

To take it all a step further, we could start seeing more of the "speed cameras" and head down that whole slippery slope. I know I'm being slightly hyperbolic here, but at what point will it all stop? In a few years from now is it possible that we will have red light cameras on every intersection and speed cameras on every major highway? I say yes. And the thought of that scenario is a little scary. At some point the rationalization of "we are doing it to make the roads safer" just doesn't hold water.

Ok, I'm done preaching now. Just make sure you stay out of those intersections. Well, the ones with cameras, anyway.

Last, but certainly not least, a little self-promotion. I handle traffic tickets in the following municipal courts: Excelsior Springs, Mosby, Lawson, Richmond, Wood Heights, Liberty, Kansas City, Smithville, Pleasant Valley, Gladstone. Please do not hesitate to contact my office if you need any help.

The New Mizzou Football Helmet: a Trademark Perspective

posted Mar 6, 2012, 1:29 PM by Calan McConkey   [ updated Mar 6, 2012, 1:34 PM ]


It was released today that the University of Missouri (my alma mater) will drop the "M" from their classic football helmet.

Pictured to the left is the traditional helmet that the Mizzou football team has been using for the last 40 years. Although the new design has not yet been released, the design is rumored to contain the Mizzou "tiger" logo that is used on essentially everything else sports-related other than the football helmet.

I am a big supporter of the University's decision. I've never liked the "M" logo because I believed that it is not unique and it is hard to distinguish from other schools that have ties to the letter "M". That being said, if I had my choice I would go back to the old school tiger paw logo (although it looks similar to Clemson), but that's really not relevant here. I feel like the only argument for keeping the old helmet design is for the sake of tradition, but that defense can only be taken so far.

I started thinking more about the decision to change the helmet -- along with the rationale given -- and I realized that the change actually translates directly to a trademark/business decision: use a logo that allows the consumer to easily identify your product.

According to an article on STLtoday.com, the decision to make the change is partially based on the fact that the "M" is borderline indistinguishable from other school logos. More specifically, Coach Gary Pinkel said:

"...studies showed that MU's most distinct icons are the word 'Mizzou' and its Tiger-head logo. And nationally...the 'M' is easily confused with Michigan or others."



Here is the Michigan logo. Look familiar? Probably realizing how common the design is, Michigan doesn't use this on their football helmet. Instead they use a design that (I'm assuming) relates to their mascot, the wolverine.





This is from the University of Minnesota. Although not identical, you can see where it could create confusion.








Finally, we have the Memphis Tigers logo. If not for the blue color, this would be perfect for Mizzou as it combines the standard (read: confusing) block "M" with a tiger.








The University of Missouri's "tiger" logo is a registered trademark (Registration # 3081291, filed back in 2004) and, the best that I can tell, the "M" logo is not. And I am fairly certain that the lack of registration of the "M" is not based on an oversight by the Mizzou IP department, but because it is confusingly similar/not distinguishable from other trademarks. Looking at these details alone support Mizzou's helmet decision. There is nothing that would stop the University of Maryland/Mississippi/Montana/Minnesota or any other college that has ties to an "M" from using a helmet just like Mizzou's. Because of this, Mizzou redesigning their helmet will transform a seemingly generic product to a highly recognizable and -- more importantly -- protectable piece of intellectual property. Well done.

I'm curious to see the new helmet design and if it is anything close to the rumor pictures I have found online. From what I have seen, the football team will be looking quite exclusive for their new SEC season. As both a fan and an intellectual property attorney, I believe this is a great decision. GO MIZZOU!

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