15 Top Mistakes Personal Injury Clients Make Series Part One: Not Getting or Delaying Medical Treatment

You’ve just been hit by another driver. The police arrive at the scene and cite the other driver with a violation. There are a million things running through your mind. If your car is totaled, how are you going to tow it? What about a rental car? You need to call your insurance company and open a property damage claim. How are you going to get home?

With everything going on, you are also dealing with the shock and stress of the situation. You’re so busy with the logic of being hit that you may neglect your physical health.

Many individuals involved in auto collisions are physically injured. If the collision is minor or moderate, you may feel muscle pain in your neck, shoulders, and back accompanied with a headache. These are common symptoms of whiplash. You may have also hit your head on the window or back of your headrest or hit your knees on the dashboard. If you were holding onto the steering wheel when you were hit, your hands and arms may have tensed, straining the muscles upon collision.

With your long list of to-do items following a collision, going to the emergency room or your primary care physician may fall to the bottom of the list. Many individuals attempt to self-treat with rest, ice, heat, and over the counter medications. However, self-treatment rarely completely resolves the injury. It is only after months go by and the injury either does not heal, or gets worse, that an individual may seek medical attention.

A delay or gap in medical treatment is one reason why an insurance company may try to deny your personal injury claim or significantly reduce its value. To avoid this, make sure that you seek medical treatment immediately following a car accident, even if you think your injuries will just go away. A large portion of the time, injuries get worse, not better, following a collision.

What’s a Copyright Troll?

DTG’s Intellectual Property Team has seen a new and unwelcome legal trend emerge in Colorado over the last few years: copyright trolls.

Peer-to-Peer (P2P) File Sharing Lawsuits

Since in 2010 and really ramping up in about 2012-2013, a small group of copyright owners has flooded our federal court system with lawsuits against tens of thousands of “John Doe” defendants. These lawsuits are based on alleged copyright infringement on peer-to-peer file-sharing networks (for example, using the BitTorrent protocol).  The lawsuits are sometimes initiated against a single defendant, but more often than not are filed against dozens or even hundreds of John Doe’s in a single lawsuit.

What Makes a Plaintiff a “Copyright Troll”?

 We call these “copyright troll” lawsuits because:

  • The suits are rarely brought by the actual copyright creators or bona fide owners, but by a company, as an assignee[1], whose sole purpose appears to be to file hundreds of lawsuits against online file sharers.
  • The claims of infringement often rely on poorly-substantiated pleadings with language that shows a fuzzy understanding of how the technology behind P2P file sharing actually works.
  • Due to the high volume of actions filed, the lawsuits frequently catch up non-infringers in daunting legal proceedings.
  • The strategy represents an opportunistic way to collect hundreds of “nuisance settlements” from defendants who are confused, intimidated and overwhelmed by being sued in federal court.

The Copyright Troll Business Model

 The copyright troll business model works like this:

  • Monitor online file-sharing networks and collect evidence of possible infringement. Copyright trolls often use a process that produces a list of alleged infringements with associated Internet Protocol (IP) addresses.
  • File a complaint in federal district court alleging copyright infringement by individuals who are identified only by IP addresses.
  • Seek a court order to compel Internet Service Providers (ISPs) to provide individual account holder information matching the IP address.
  • Contact those account holders by letter and threaten to seek very large awards of statutory damages (up to $150,000 for a single download!) but offer to settle for amounts ranging from $3,000 to $8,000.
  • Settle as many cases as possible, and abandon virtually all the rest.

In other words, copyright trolls play a numbers game, targeting hundreds or thousands of defendants to secure quick settlement payments priced just low enough that it is less expensive for the defendants to pay than to defend themselves in court. This business strategy has netted copyright troll plaintiffs millions of dollars in settlement payments!

If you’ve received a letter from your ISP about a legal order (subpoena) to reveal your identity to the Colorado district court, or a letter from a copyright troll demanding a huge settlement, please contact us at once. Our experienced team of intellectual property and litigation attorneys can help you resolve your case in the best manner possible. Our team is listed in the Electronic Frontier Foundation’s Subpoena Defense Resources page.

 

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[1] Examples of these copyright troll companies include I.T. Productions, LLC; Killer Joe Nevada, LLC; CELL Film Holdings, LLC; Survivor Productions, Inc.; and Dallas Buyers Club, LLC.

Entity Formation Basics: The Cooperative

Strategic business planning should involve thoughtful consideration of what form of business entity to use – whether a C corporation, S corporation, limited liability company (LLC), partnership, non-profit, or some other type of business entity.

This post is about one useful form of business entity that is frequently overlooked by business advisors and attorneys – the cooperative!

A cooperative or “co-op” is a type of legal entity that is distinguishable from standard, for-profit corporations, LLCs, and partnerships.  Co-ops offer a flexible business model that can be used by any group of people who are interested in creating a democratic decision-making company that benefits all members.  In other words, co-ops strive to be patron- or member-oriented, rather than investor-oriented like traditional corporations or LLCs.

At their core, co-ops are formed by a group of people who either work or shop there (a brewery co-op or a food co-op), use its services (a credit union or health insurance co-op), or product goods and items for it (a food producers co-op).  Co-op members are not to be held liable for any debt, obligation or liability of the co-op.

The International Cooperative Alliance, a global membership association of co-ops and co-op support organizations, has established Seven Cooperative Principles including Democratic Member Control and Concern for Community, among others.

The “common purpose” of individuals wishing to form a co-op can include a number of things, including employee-ownership, group marketing, or group purchasing.  Some of the most nationally well-known co-ops include Ace Hardware and REI, as well as dozens of successful agricultural co-ops such as Land-O-Lakes, Sunkist, and Ocean Spray.

Today, artist and freelancer co-ops are becoming more common due to the rise of the “sharing economy” and the realization of individual artists, photographers, software developers and other freelancers there can be great benefits to pooling resources, infrastructure or ideas.

Colorado Cooperatives

Colorado cooperative law has developed cumulatively over more than five decades.

Today, a standard co-op should be formed under Article 56 of Title 7 of the Colorado Revised Statutes.  Article 58 contains the “Colorado Uniform Limited Cooperative Association Act”, recently enacted in 2011.  Also, Article 33.5 of Title 38 is a special Colorado code section for housing co-ops.

Interestingly, Colorado law explicitly prohibits the ability to use the word “cooperative” or any abbreviation or derivation of as part of your business name, trade name, trademark or brand unless you are actually formed as a co-op under these statutes, so be careful if you are loosely using the term “co-op” or “cooperative” in your business!

Under Colorado law, co-op members and those on a co-op’s Board of Directors are protected from personal liability from the activities of the company, similar to corporations and LLCs.  Co-ops are also allowed to limit membership only to persons engaged in a particular business, persons who will use the goods or services of the co-op, and other membership conditions stated in the co-op’s Articles of Incorporation or Bylaws.  Because they are so member-oriented, Colorado law requires a co-op to keep detailed membership lists with contact info.

Limited Cooperatives

Under the newer Limited Cooperative Association Act, a co-op can have investor members who do not participate as much in the common purposes of the company.  This kind of co-op would have “patron members” who fully own and participate in the co-op and “investor members” who participate in the co-op on a more limited, financial basis.

Because the Article 58 was designed with maximum flexibility in mind, a co-op’s Bylaws and Membership Agreements can set forth all kinds of rules and arrangements for the patron members and investor members as far as how the company is run, how patron member votes versus investor member votes are counted towards certain decisions, and how allocation and distributions are made to these different kinds of members.

Cooperatives and Securities Laws

Both Articles 56 and 58 state that any unit or evidence of a membership interest in a co-op is exempt from the Colorado Securities Act or our state’s “Blue Sky” laws.  This means a co-op can offer and sell its membership interests without needing to registered as a broker-dealer, unlike the ownership in a corporation or an LLC.  This takes a lot of legal headache and expense away from co-ops who are looking to have dozens or even hundreds of members.

Nevertheless, if your co-op needs to raise a lot of capital and wants to do so by securing many membership fees or contributions, we strongly recommend this is done through a Regulation D private placement offering under the federal Securities and Exchange Commission’s (SEC) rules.

Worker Cooperatives

Worker co-ops (i.e., employee-owned companies) are gaining traction like never before as the socially-conscious business movement and sharing economy continue to gather momentum.

The common purpose of the worker co-op is each member’s livelihood – their job and income – as it relates to the success and sustainability of the company as a whole.  In a worker co-op, the employees democratically control the management and operations of the company, with each employee-owner having an equal vote.

Generally, this means that all employees, no matter their salary, job title, or years of employment, are entitled to one vote per person on all matters brought before the membership of the company.  However, this does not mean all employees have to be involved in every company decision.  A worker co-op should still have a Board of Directors, and can also have other officers (for example, a President or a CEO) to set policies, manage day-to-day operations of the company, and determine when important decisions should be put to the members.  Of course, the members vote for who is on the Board and can also vote for who the President or CEO is to be.

Taxation of Cooperatives

Co-ops have unique income tax structures governed by Subchapter T of the Internal Revenue Code.  This tax structure is similar to partnership taxation, but with some different terminology.  Profits of a co-op are called “net margins”.   The members of a co-op are deemed “patrons”.

Under Subchapter T, net margins are not taxed a the co-op level, but are instead allocated to the patrons on an annual basis similar to a partnership distribution.  Unlike a partnership distribution however, co-op allocations are based on a patrons use of the co-op rather than their investment.  For example, in an agricultural co-op, if Farmer A uses 3,000 acres of the co-op’s land and Farmer B uses 10,000 acres, Farmer B had more “patronage” of the co-op and should expect a larger allocation.

Subchapter T states at least 20% of the allocation to a co-op’s patrons must be in cash.  The remaining 80% can also be distributed in cash, or in can be retained on the books of the co-op as “patronage equity”, to be redeemed sometime in the future.  Consequently, patronage equity allows a member of a worker co-op to build personal assets and net worth by having an equity account that can be redeemed when he or she retires or leaves the company.

Each patron should receive a Form 1099-PATR from the co-op every year reporting the allocation (both cash and non-cash).  Then, each patron is responsible for paying his or her own income taxes based on the reported allocation.

If you would like to form a co-op or have a question related to an existing co-op, contact our offices today!

 

 

 

 

 

 

Colorado Legislative Watch: Encouraging Employee Ownership of Small Businesses

UPDATE (4/21/2017):  House Bill 17-1214 passed both the House and the Senate and is on its way to Governor Hickenlooper’s desk for signature!

On February 27, 2017, House Bill 17-1214 was introduced in the Colorado House of Representatives.  The goals of the Bill are to educate state policy makers on the benefits of employee ownership and to create a revolving loan fund through the Office of Economic Development to assist existing small business with converting to employee ownership.

Nearly half of Colorado’s workforce is employed by small businesses, but this workforce is approaching a potential economic crisis:  About 66% of small businesses in the U.S. are owned by “Baby Boomers” who are going to be retiring in ever-increasing numbers over the next decade.  However, many of these Boomer business owners have no succession plan for their businesses upon retirement, and market analysts are predicting there aren’t going to be enough buyers for all these small companies hitting the market.  Thus, not having a concrete succession plan increases the risk that these companies will simply be liquidated – assets sold, accounts closed, and employees laid off.

A number of recent studies on employee ownership show that employee-owned companies are statistically better for the economy than traditional ownership models.  For example, employee-owned companies have lower rates of layoffs and lower rates of failure after 5 years of business.  Employee-owned companies also have better annual sales figures, and employees in an employee-owned company earn 5-12% more than their counterparts at other businesses.  These benefits are rooted in the fact that in a democratically-controlled, employee-owned company, the goals and motivations between management and the workforce are aligned.

So, the goal of H.B. 17-1214 is to convince and assist these retiring Boomer business owners “sell” their companies to their employees!

Fundamentally, employee-ownership could be a meaningful way to address the growing income- and earnings-inequality that is plaguing our country.  If H.B. 17-1214 passes, it will be an exciting development in Colorado and perhaps, a model for the rest of the country on the economic benefits employee ownership!

 

 

Guidance for Denver DIY Spaces and Zoning Requirements

The attorneys at the Law Offices of Daniel T. Goodwin practice arts & entertainment law in Colorado, and maintain a high level of involvement with artist cooperatives, Colorado Attorneys for the Arts (CAFTA), and other organizations in this state that support and assist the arts and creative entrepreneurs.

So, when we heard about the tragedy in Oakland’s GhostShip, we were hit particularly hard. We didn’t know any of the victims directly, but many of our friends did. Our minds quickly turned to our Colorado DIY spaces—what were they feeling, what were they scrambling to correct in their safety approaches, and how could we help? Not surprisingly, we found that artists in Colorado are grieving and also fighting to keep their spaces up to code in the face of increased interest from safety agencies.

At a recent gathering of artists running DIY spaces, we heard a lot of confusion and uncertainty about the lay of the legal landscape. Watch this space over the next weeks as we pen a blog series that answers questions many spaces are having and elaborates on top issues for DIY creative spaces.

All situations are case specific, so you may need further guidance given your particular situation.

Verifying Your Zoning Status in Denver

In Denver, the public online records provide a nice link to the basic information you will need to feel more assured about your zoning status. Remember that public government websites are never guaranteed to be 100% up to date, but this should give you a reasonable place to start in confirming that your space does not have unresolved zoning issues.

1) Visit the online real estate records page here.

2) Hit “Advanced Search”

3) Enter your address information

4) There will be a hyperlink on your building’s address. Click on the address to go to the detail page.

5) The website will take you to the “Property Summary” tab. Click the Tab to view “Property Map”. This is where you will find all sorts of juicy information about your zoning allowances.

6) Note all special designations for your property, including Enterprise Zones, Historic Landmark status, and zone district information. I recommend making a written note for easy reference as you look at the Zoning Code. You may be part of an “overlay district”, which means that two sets of requirements apply to you—make sure to check the requirements for any and all references made in this section.

7) The page will link to the version of the Denver Building Code that relates to your property. Click through to that document in the “Code Version” line.

Check the Code and How It Applies to Your Building

Understanding the Zoning Code is complicated and technical. This makes it difficult to maintain exact compliance and leaves property owners open to differing interpretations and potential violations, even discrepancies within the same department. Keep your focus on trying to get reasonable compliance with the most that you can. There is always a chance that the city will show up and point out a non-compliance issue that you haven’t thought of. Your attempts to get it right in the other instances will help you establish good faith and some negotiating room with the city if you need it.

Click through to the version of the Zoning Code that applies to your property.

a) Look at Articles 1 and 2 to get an overview of how to use the manual.
b) Look for the Article that matches each of the zoning assignments given to your building.
c) Find the Chapter on your specific zoning assignment and read.
1. You will find information on what types of buildings are allowable and offset distances from the sidewalks (this won’t really be anything you can control or worry about). What will be important is to Check the Uses Allowable for Your Type of Building.
2. You do want to look at any requirements that apply to free-standing structures you have in your space (sheds, lockers, garages…).
3. Look at the tables that apply to your type of zoning in each section of the chapter for the requirements that you need to follow. This is where you can start to pull together a list of items to prioritize as you come into compliance. Or, hopefully, you won’t need to make any improvements at all.
4. Pay particular attention to parking requirements and the USE TABLES. You should verify that the way you are using the property is allowable. And, you will want to know if you are required to get a permit for any specific types of use. For example, if you are zoned for mixed industrial use and live/work, there are limitations on parking and biking for which you will need approval.
d) Look at Article 10 for rules that apply to everyone.
e) Look at Article 11 for definitions and rules that apply to your specific uses.

If you determine that there may be compliance issues, discuss with the building owner. Your landlord may know something you don’t regarding prior approvals from the city or being grandfathered in for certain items. And, your landlord may be willing to help you with expenses to make things right.

Note that these instructions only apply to the Zoning Code. You will also need to be in compliance with the Building Code.  Check this blog later for highlights from the International Building Code, which is used as a model law for municipalities.

If you don’t live in Denver, your city may also include zoning information as part of the public record. Research what information is available to you through both the assessors office and the real estate records office of your city.

If you need more information or help with these or other topics for your DIY space, please contact our Arts & Entertainment Team or contact us at (303) 763-1600.

Trademarks: A Primer for Colorado Business Owners

A “trademark” is any word, name, slogan, symbol, or combination thereof, including packaging, configuration of goods or other trade dress, which is adopted and used to identify goods or services, and to distinguish them from goods or services offered by others.

The primary goal of trademark law is not to establish an exclusive property right in the mark, but rather, to protect consumers from confusion in the marketplace.  Thus, your trademark rights are violated if someone else is using your mark (or a mark confusingly similar to yours) in a way that is likely to cause confusion to existing or potential customers.

Technically, “trademark” is the term to use for tangible goods and products and “service mark” or “servicemark” is for non-tangible services, but nearly everyone, even trademark attorneys, use “trademark” for both categories.

“Common Law” Trademark Rights

Many people believe you can only have a trademark if you file for a registration, but this is not true!

Trademark rights can be established under common law simply by being the first use a mark for a business endeavor.  Your common law trademark rights extend as far as the geographic area in which you use your mark.

For example, if Roger started a plumbing business called Roger’s Parts & Plumbing in 2002 and has continuously used the name “Roger’s Parts & Plumbing” in the Denver metro area ever since, he will have likely established a legal right to “Roger’s Parts & Plumbing” under common law in the Front Range.

If, in 2017, Judy tries to start a plumbing business in Denver called “Roger’s Parts & Plumbing”, Roger could use his trademark rights to legally stop Judy from doing so.  Consumers would be confused about which “Roger’s” business is which.  Plus, the new “Roger’s Parts & Plumbing” could unfairly take advantage of the goodwill and reputation Roger has established over more than 10 years of business.  These are the very problems trademark law was designed to address.

However, if Judy starts a plumbing business called “Roger’s Parts & Plumbing” in Durango, Colorado instead of Denver, nearly 350 miles away from where Roger operates, Roger might have trouble proving that his common law rights extend that far.  Similarly, if someone starts a punk band in Denver called “Rogerzz Plumbing”, Roger would have to prove his trademark rights extend beyond the plumbing industry in order to stop the punk band from using that name to promote music and live shows.

Federal Trademark Registration

Registering your trademark, even if you have established strong common law rights to the mark, is always advised.  This allows you to provide notice to the world that you are using the mark, and affords you certain statutory rights and protections as well.

The U.S. has a two-tiered system of trademark protection:  federal and state.  A federal registration issued by the U.S. Patent & Trademark Office (USPTO) give the registrant rights through the entire United States.  A state registration will grant rights within that state’s boundaries only.

Generally, in order to file for a registration with the USTPO, the trademark’s owner first must use or plan to use the mark in “interstate commerce.”  This means the mark is used on a product or service that crosses state lines or that affects commerce crossing such lines (for example, an Internet business that caters to interstate or international customers).

At first glance, registering a mark with the USPTO appears to be a relatively simple process. It requires a completed application, a specimen, and a statutory filing fee.

However, doing some research before spending the cash on the filing fee, which can range from $250 to $375 or more depending on the type of application submitted and how many class of goods or services you want to list for your mark, is strongly recommended.  This is because all applications will be examined by a USTPO Trademark Examiner for registrability under the Lanham Act (15 U.S.C. § 1051 et seq.).

Some things CANNOT be trademarked under the Lanham Act.  You are not allowed to claim the generic name of a product or a service itself as your trademark.  Roger cannot trademark “Plumbing” or “Plumber” for his plumbing business.

You cannot register “clearly descriptive” marks, which are those made of dictionary words which describe some important characteristic of your product or service (e.g., “Delicious Apples” if you have an apple orchard business).  You also cannot register “deceptively misdescriptive” marks (e.g., “Leather Shoes” for shoes that aren’t actually made of leather).

However, “suggestive” marks only give some vague idea about the products and services covered by the trademark, and are registrable.  Sometimes the boundary between unregistrable clearly descriptive marks and registrable suggestive marks isn’t very clear. This can result in long disputes between applicants and the USPTO.

There are many other rules for what is allowed for registration under this Act, and if your application is rejected, you do not get a refund of your application fees.  As such, consulting with a trademark attorney is advised before you begin the federal registration process.

If the Trademark Examiner determines your mark can be registered, it is then published in the USPTO Gazette, and if it is not challenged within 30 days of publishing, it will be registered. The total process can take 1 year at a minimum.  After registration, you can use the symbol ® after your mark to show it has been federally registered.

Colorado Trademark Registration

Trademark registration under Colorado law[1] is easier, faster and cheaper than federal trademark registration.  It is used to protect a trademark within the state.

A Colorado trademark registration allows for a standard character mark (expressed in ordinary English letters, Roman and Arabic numbers, or punctuation, without any stylization) and a special form trademark (logos, pictures, design elements, color or style of lettering).[2]

To file a Colorado trademark registration, you submit a Statement of Registration of Trademark electronically at the Colorado Secretary of State’s website with an attachment of your mark and the goods/services category your mark will be used in.  The current filing fee is $30.

Unlike the USPTO, there is no examiner who is going to look at your application to make sure you have completed it correctly and that the mark is appropriate for registration under state law.  Instead, when you file your application, you certify that in your good faith belief, you have the right to use the trademark in connection with the goods or services listed your application, and

your use does not infringe the rights of any other person in that trademark.

Colorado trademark registrations are effective for 5 years and may be renewed before expiration in successive 5-year terms.[3]  (Prior to May 29, 2007 however, Colorado trademarks were effective and renewed for 10 years.[4])

Obtaining a Colorado trademark registration does not authorize the use of the federal registration symbol ®.[5]  However you can use “TM” or “SM” (for a service mark) after your mark.

If you are interested in speaking with one of our attorneys about registering your trademark or stopping someone else from using your mark, give us a call.

[1] Section 7-70-101, et seq., C.R.S.

[2] Section 7-70-102(2)(f), (g), C.R.S.

[3] Sections 7-70-104(1)-(2), C.R.S.

[4] Section 7-70-109, C.R.S.

[5] Section 7-70-103(4), C.R.S.

“Open Studios” Trademark Dispute in Boulder, Colorado

Our guest contributor today, photographer John Uhr, posted this great analysis on Facebook of a current, local and much-publicized trademark dispute regarding the name “Open Studios.”

A quick background:  Open Studios, established in 1995,  is an arts-awareness and -appreciation organization based in Boulder, Colorado.  Recently, the organization has been quite aggressive in its legal efforts to protect the name “Open Studios” in the Boulder area by asserting its trademark rights.  This has impacted many artists in the area, including the Boulder Metalsmithing Association.   Recently, Open Studios and the Boulder Metalsmithing Association are parties to a trademark lawsuit in federal district court here in Colorado.  You can read Open Studio’s complaint, filed in August 2016, here.

FB John Uhr

October 10, 2016 at 11:17am ·

A funny thing happened this evening.  Completely by coincidence, I made the acquaintance of Open Studios board-member and attorney, Howard Bernstein.  He was discussing with Chris Brown (respected photographer and O.S. artist) a certain controversy surrounding Open Studios suing a small arts organization.  Since I have a passing interest in the matter, I asked Mr. Bernstein a number of questions I had been wondering about and listened carefully to the answers. We spoke for around 45 minutes and at the end I inquired whether Open Studios would abide by the results of the upcoming mediation if it should go against them. His answer (after assuring me that Open Studios would most certainly win) was an emphatic “why would we?” ……more on our conversation as I have time.

Ok, It’s later …

This article reports on an unexpected conversation I had with Open Studios lawyer and board-member, Howard Bernstein. The conversation took place at about 6 PM Oct. 10th at Chris Brown’s photography studio and in the presence of Chris and Mr. Bernstein’s wife, who listened with interest and occasional interjections. If Mr. Bernstein disagrees with my characterization of his position, I would welcome his input. These are his words and position to the best of my memory. I would also like to add that I hold no enmity toward Mr. Bernstein and believe he has the best interest of Open Studios at heart.

1) Mr. Bernstein believes that due to the their many years of use of the term, good works, etc. that Open Studios owns the right to the phrase “open studios(s)” for promotion of events in all of Boulder County. I asked if an individual artist (such as Chris Brown) would be allowed to post a sign saying “open studio” and he indicated that he would. I took this to mean that they only wished to control usage by organizations, but didn’t pursue the point.

2) While Mr. Bernstein seemed very anxious to make this issue about Boulder Metalsmithing Association and its director/founder Beth Merkel, it was apparent that he believes that any organization in Boulder County using the term “open studios” is violating OS’s rights and that allowing them to continue would be irresponsible. He would very much prefer that other organizations voluntarily stop using the term and that litigation is a last resort if they refuse to stop using it.

3) Mr. Bernstein believes that Boulder Metalsmithing’s attempt to trademark the term “open studios” was clearly an attempt to get exclusive rights to it’s use (keeping OS from being able to use it). I suggested that it was simply an attempt to ensure that the phrase could continue to be used by anyone, in the face of Open Studio’s demands. I said that I and everyone I had spoken to would be equally against anyone else claiming exclusive rights to the term.

4) I pointed out that literally thousands of organizations use the term “open studios”, many of them for far longer than Boulder’s OS and that I could find no instances of any of them suing to keep exclusive rights, but Mr. Bernstein insisted many times that they were “forced” to take legal action. It was clear to me during the course of our discussion that OS is pursuing exclusive rights to the term and will oppose any use of it, using legal means if voluntary compliance is not forthcoming in the misguided belief that they are protecting OS and their artists.

The Solution:

A search for “open studios” reveals that virtually all other of the thousands of open studio organizations attach their open studios name to their location. “Open studio” is a common generic phrase, while “open studios Cornwall” provides the uniqueness commonly valued in a trade name. For the same reason, common descriptive phrases like “farmer’s market”, “art fair”, “film festival” are attached to a location like Boulder County, Pearl St, or CU International when used as an organization’s name. I suggested that a simple solution for OS would be to attach their name to “Boulder” or “Boulder County”.  Mr. Bernstein emphatically rejected this idea seemingly because “open studios” had always been “open studios” and always would be. Tradition! The response is ironic because one of the main reasons Mr. Bernstein gave for preventing the use of the term by others is the potential for “confusion”.

Mr. Bernstein also seems to be overlooking a much greater potential source for confusion. If OS doesn’t claim “Boulder Open Studios” as a trade name, what prevents another organization from doing so, for instance, as a public forum for discussion of open studios issues and controversies? Talk about confusion!

It seems to me that Open Studios simply made an easily fixed mistake in not using the more appropriate, specific and descriptive name of Boulder Open Studios. Fixing this would do much more to avoid confusion than using a generic descriptive phrase and then being “forced” to prevent other organizations to stop using it.

To make things much easier for Open Studios to adopt this solution, I have purchased the tradename “Boulder Open Studios” and the domain name “boulderopenstudios.org”. I am offering these names to Open Studios free of charge if they will acknowledge that the term “open studios” is simply a common generic phrase which should be available for anyone to use.

What do you think of John’s solution?  Do you agree with Open Studio’s attorney or is this a case of trademark bullying?  This is certainly a case our intellectual property team will be watching!

Who Can Bring A Wrongful Death Claim In Colorado?

Wrongful death actions in Colorado are governed by CRS 13-21-201.

During the first year after the death:

  • Only a surviving spouse may bring the claim.

During the second year after the death:

  • A surviving spouse may bring the claim;
  • Any children may bring the claim;
  • If the deceased has no spouse or children, then the parents of the deceased may bring the claim.

Who cannot bring a claim:

  • Siblings of the deceased;
  • Friends of the deceased;
  • Boyfriends / girlfriends of the deceased.