Legal News and Information
Insights and Developments in the Law
WAMPLER, SOUDER & SESSING L.L.C.
One Central Plaza • 11300 Rockville Pike, Suite 610 • Rockville, MD 20852
Telephone (301) 881-8895 • Fax (301) 881-8896
New Firm Announcement
We are happy to announce the merger of The Wampler Law Firm, L.L.C. with Souder & Sessing. The new firm is Wampler, Souder & Sessing, L.L.C. We are excited about the fact that the combined firm is delivering legal services more productively, efficiently, and effectively than ever. We have also increased our areas of practice which include, but are not limited to those listed below:
• Estate Planning &
Administration
• Tax Law
• IRS Disputes
• Business Transactions
• Foreclosures
• Landlord-Tenant
• Creditors and Debtor’s
Rights
• Construction Law
• Construction Litigation
• Bankruptcy
• Custody
• Divorce
• Domestic relations
• Domestic Violence
• Personal Injury
• Guardianships
• Wills
• General Business Litigation
• Collections
• Appeals
• Defamation
• Insurance Litigation and
Coverage Disputes
• Real Property Litigation
• Injunction
• Specific Performance
• Equitable Claims
• Corporate and Business
Litigation
• Landlord Tenant
• Consumer
• Lemon Law
• Warranty Claims
• Attachment Before
Judgment
• MVA hearings
• Criminal Law
• Serious Traffic Offenses
• DWI
• Appellate Law
• Civil Litigation
• Practice before Federal Courts
New Frederick Office
We are also happy to announce the expansion and relocation of our
Frederick office. It is located at 7 North Market Street, Suite 301,
Frederick, Maryland 21704 (just north of the intersection of West
Patrick and Market).
WSS Legal Corner
Changes to the Maryland
Foreclosure Statute
In light of the substantial increase
in foreclosures, Maryland
has adopted a new law requiring 45
days written notice of intent foreclosure
sale and 90 days of continuous
default according to the terms
of a mortgage.
The Firm’s Equal Rights Victory
Our firm successfully won an
appeal of a case before the Maryland
Court of Special Appeals. In
this case, a husband, who worked
during the marriage, but also contributed
to the household and the
minor child, was denied both alimony
and child support by the trial
court. This, in spite of the fact, that
his wife made approximately four
times as much as he did. The Appeals
Court held that the proper
procedure for determining alimony
and child support had not been followed.
We congratulate the Court
of Special Appeals for recognizing
that the statute governing awards of
alimony and counsel fees are gender
neutral.
Protection for Parodies
It is the very nature of parody to
present two opposing messages: that the
parody is, in fact, thegenuine article that
is being parodied, and that it is not the
original, but is instead just a parody.
When used to promote a product, the
parody may transgress federal trademark
law if it succeeds in the first objective
but not in the second. In that case,
the parody will have created customer
confusion, which is a critical element
for a claim of trademark infringement.
There was a recent victory for parody
in the marketplace when a federal
court rejected claims of trademark infringement
and trademark dilution
brought against the imitator. On one
side was Louis Vuitton Malletier
(LVM), the maker of luxury handbags,
luggage, and even some pricey pet accessories.
Some of LVM’s trademarks
go back to the 19th century.
Distinctly at the other end of the
spectrum was the upstart defendant
Haute Diggity Dog (HDD), purveyor
of dog toys and beds which play on the
names of luxury items. Among HDD’s
offerings were “Chewnel No. 5” and “Dog Perignonn.” You get the idea.
HDD targeted LVM, in particular,
by offering chew toys that were shaped
like miniature handbags resembling
LVM products and that used patterns
evoking trademarked LVM designs.
Predictably, the chew toys were sold
under the name “Chewy Vuiton.”
Not amused, LVM sued HDD in
federal court for trademark infringement
and trademark dilution. Unfortunately
for LVM, the court was amused,
or at least it got the joke. As the court
put it, the chew toy “ irreverently presents
haute couture as an object for
casual canine destruction. The satire is
unmistakable.”
The obvious nature of the parody
was legally significant because there
was no real likelihood of confusing the
chew toys with the upscale leather
goods they were meant to evoke. There
were clear and immediate differences
between the products, and even the “ simplified and crude” imitation of
the LVM designs was not such as to
create a danger of confusion with the
real thing among the dog masters who
do the buying. (Dogs might see no
difference and chew up a $1,000 handbag
as vigorously as they would a chew
toy, but they have no say in trademark
lawsuits.)
Trademark dilution differs from infringement
in that it is not necessary to
show confusion in the marketplace. It
is a more nebulous concept, but prohibited
dilution occurs when there is “blurring” or “ tarnishment,” that is,
an association arising from the similarity
between the challenged mark or
name and the famous mark that impairs
the distinctiveness of the famous
mark. In the end, the very fact that the
chew toy parody was successful defeated
the dilution claim, just as it had
the infringement claim.
Outlaw vs. Rule of Law
Recently, court documents were uncovered
from a successful civil case involving
some notorious nineteenth-century
defendants who were better known
for avoiding the legal consequences of
their acts: Jesse and Frank James.
Not surprisingly, the case against
the James brothers stemmed from one
of their signature activities, a bank robbery.
During an attempted bank robbery
by the brothers in Gallatin, Missouri,
in 1869, Jesse James killed a
cashier. As the brothers made their getaway,
Jesse was thrown from his horse,
which he left behind in favor of doubling
up on Frank’s horse. Soon thereafter,
the brothers happened upon the
unfortunate Dr. Smoote, who was also
on horseback. Jesse relieved Smoote of
his horse, at gunpoint, and continued
the escape.
Smoote was not the first or last victim
of the James brothers, but he was
unusual in then bringing, and winning,
a lawsuit against them for the full value of the horse, saddle, and bridle that
they had stolen.
One might expect the outlaws to
have ignored the lawsuit altogether,
but the brothers answered the lawsuit
by arguing that they were not personally
served with notice of it. Although
a sheriff testified that he had delivered
the papers to the James family farm
(pity the process server charged with
serving a summons on Jesse James),
the case was dismissed on that technicality.
That might have been the end of
the litigation, were it not for Jesse’s
decision to publish a letter in a newspaper
declaring himself innocent of the
holdup and murder.
Correctly pegging Jesse James as a
newspaper reader, Smoote’s attorney
cleverly won the court’s approval to
file a notice of service in the classified
section of a local newspaper, thus giving
Dr. Smoote another bite at the
Trademark dilution differs from
infringement in that it is not necessary
to show confusion in the
marketplace.
Continued on page three.
Continued on page three.
Actual resolution of legal issues depends upon many factors, including variations of facts and state laws. This newsletter is not
intended to provide legal advice on specific subjects, but rather to provide insight into legal developments and issues. The reader
should always consult with legal counsel before taking action on matters covered by this newsletter.
Lawyer’s Approval for Acceptance of Offer
When the owners of a party store
received an offer to purchase not the
entire property, but only their liquor
license and fixtures, they accepted the
offer, but on the condition that their
attorney approve the deal. Before the
attorney’s review of the first offer, the
owners received a better offer from
another potential buyer, this time for
the entire property, including the license,
the fixtures, the real property,
and the business itself.
The second offer was for about five
times as much money as the first offer.
The owners also accepted this offer,
but again conditioned acceptance on
approval by their attorney. The owners’
attorney then reviewed both offers
at the same time and, not surprisingly,
approved the second, more favorable
one.
The disappointed party that had
made the first offer sued the owners to
enforce what it regarded as a completed
contract for the sale of the license
and fixtures. It contended that
the sellers had waived the requirement
of attorney approval by their bad faith
in simultaneously submitting to the attorney
two competing purchase agreements,
both of which conditioned acceptance
on approval by the attorney.
The disappointed party further argued
that, by procuring the second offer and
prospective agreement, the sellers had
wrongly hindered the fulfillment of the
only condition remaining to be fulfilled
on the first agreement—attorney
approval.
A court disagreed that there was
any bad faith and upheld the contract
formed when the second offer was accepted
and approved by the sellers’
attorney. While the plaintiff had been
the first to make an offer of any kind,
nothing in its potential contract prohibited
the sellers from considering other
offers. Nor were the sellers obliged to
take the property off the market pending
review of the first offer by legal
counsel. Consideration and eventual
full acceptance of the second offer was
not legally impermissible where the
first offer had been only conditionally
accepted.
There was no limit on what aspects
of the first agreement were subject to
the attorney’s approval. He was free to
disapprove it, as he did, simply because
there had been a better competing
offer made by a competing prospective
buyer. Moreover, the sellers
had not interfered with their attorney’s
actions, such as by instructing him to
disapprove the first offer. In short, the
sellers had not acted in bad faith. They
were guilty of nothing more than
shrewd business moves during what
the court described as a period of “dickering” that preceded the formation
of an enforceable contract.
LVM’s trademarks are quite famous —the court called them “ icons of
fashion.” But the fame actually
worked to LVM’s disadvantage in
court by increasing its burden of demonstrating
that the parody really was
likely to tarnish the distinctiveness of
LVM’s name and products. Not only
that, but the court saw the parody as
probably having a salutary effect on
LVM: A successful parody might actually
enhance the famous mark’s distinctiveness
by making it more of an
icon. As the court put it, the target of
the joke becomes yet more famous.
You might say that the court told LVM
to lighten up and see the upside of
having its products lampooned.
apple. Again, through their attorney,
the James brothers initially fought the
lawsuit, but soon they withdrew from
the suit and allowed a judgment to be
entered against them for $223. The
judgment was satisfied when Smoote
took possession of the horse which
Jesse had left behind at the robbery.
Yes, Dr. Smoote had to endure the
dreaded prospect of staring down the
barrel of Jesse James’s weapon, but in
dollars and cents he fared well. The
horse he now had, which Jesse had
bought with cash gained from some of
his successful robberies, was believed
to have been from Kentucky racing
stock and was valued at $500 (a considerable
sum for the time).
Protection for Parodies
Continued from page two.
Outlaw Justice
Continued from page two.
The disappointed party that had
made the first offer sued the
owners to enforce what it regarded
as a completed contract
for the sale of the license and
fixtures.
The Three Things an Owner Needs to Do on Any New Construction Project
If you are planning a construction
project, either a home improvement or
new construction, ensure that the following
steps are taken with any contractor:
1. Check the background of the contractor to ensure that it has done good work and satisfied customers before. Make sure it has a lengthytrack record of experience and make sure that it does not have a history of complaints. Finally, make sure that it is properly licensed.
2. Make sure that any documents you sign are reviewed by a legal professional before entering into the contract or making any payment. Never make payment unless there is a written contract.
3. Retain an independent professional to inspect work performed on the construction project. Do not rely on inspector that has been hired by a bank extending you a construction loan to authorize draws. For more information about ensuring a successful construction project, please contact this office.
Bankruptcy Reform?
Since the Bankruptcy Code underwent
substantial revisions in October
2005, I have had an opportunity to
observe the revisions to the Code in
practice. Thankfully, the increase in
Home Equity and more liberal lender
policies temporarily reduced the need
for bankruptcy filings. However, I believe
we are coming to the end of the
endless refinancing road as those in
financial difficulty have drained the
equity out of their homes and home
prices are no longer increasing.
At this point, I am not confident that
the reforms to the bankruptcy code
have done much, if any, good. They
have apparently decreased filings, but
they appear to have done this to a large
extent by making bankruptcies so
cumbersome and expensive that the
people that most need to file them cannot.
I have seen no evidence that they
have reduced abusive filings as they
were expressly intended to do.
Contingency Collections
If you own or operate a business,
remember that I handle accounts
receivable collections. In
the right circumstances, these
can be handled on a contingency
basis. Call for more information.
Home Improvement Scams
The home improvement business is
crawling with cheats. Before signing on
the dotted line, remember the following:
• Be wary of a salesman who comes
to your home uninvited, especially
if he claims he was doing some
work for your neighbor or was just “in the neighborhood.”
• Ask for references, with names and
telephone numbers—nothing
drives away a swindler quicker than
a request for references.
• Beware of the low-ball bids or offers
that seem too good to be true,
because they usually are.
• Beware of people who ask for a
large “deposit” or ask to be paid in
full before the work is done.
• Read everything carefully before
you sign it, and make sure you understand
all of the terms.
• Do not sign a contract with blanks
in it.
• Beware of a salesman who claims
that his offer is for a “limited time”
or is “today only,” especially where
he is pressuring you to sign before
you have read the contract.
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