Colorado attorney John A. Arsenault featured on Denver KDVR news

Local television station Denver KDVR recently interviewed attorney John A. Arsenault on the subject of revenge porn, justice for victims, and the current state of the laws in Colorado. Despite strengthening the revenge porn laws in 2018, the current laws are not always sufficient for law enforcement to easily investigate and forensically determine ‘beyond a reasonable doubt’ who is responsible for the unlawful postings. Problems with computer and forensic knowledge make it difficult for law enforcement to properly act and enforce the rights of victims. John A. Arsenault discusses the problems around the circumstances involving a specific individual who called into KDVR seeking justice.

Apple Inc. assigned iPad trademark rights by Fujitsu

Unlike the 2007 trademark dispute with Cisco over the iPhone mark that required a bit of negotiation and time, today it was announced that Apple resolved their trademark dispute with Fujitsu Ltd. over the iPad mark.  Before we can comment on the events of today, a brief history of the iPad mark as applied to the class of handheld computing devices is warranted.

In 2003, Fujitsu filed for the iPad mark on a handheld Windows CE machine that was a $2000 wireless point-of-sale device for retailers. [1]  Despite the 2003 U.S. trademark application by Fujitsu for the iPad mark, the company Mag-Tech Inc. was already using the iPad brand in commerce for a handheld encryption device. [2]  Thus, even at the time the application was made by Fujitsu, ownership of the mark for the class of handheld devices was questionable.  In response to a notice of abandonment sent by the U.S. Patent and Trademark Office (U.S.P.T.O.) in early 2009, Fujitsu applied to renew the iPad mark.

Before Apple announced the iPad to the public in January of 2010, Apple submitted several briefs to the Trademark Trial and Appeal Board (TTAB) opposing the 2009 Fujitsu filing at the USPTO. [3]  Sleuthing internet detectives first reported the opposition on several technology enthusiast websites.  On January 16, 2010, Apple through the shell company IP Application Development LLC filed for the iPad mark at the U.S.P.T.O. on the basis of an “intention to use” under 15 U.S.C. 1051(b)1(b) and a “claim of priority based on an earlier-filed foreign application” under 15 U.S.C. 1126(d). [4]  The U.S.P.T.O. gave Apple until February 28, 2010 to decide whether it wanted to proceed with opposition to the renewal application by Fujitsu.

Fast forward to March, and Business Week announced today that Fujitsu and Apple came to an agreement that would let Apple use the iPad mark for its handheld device. [5]  Although the terms of the agreement are confidential, it is safe to surmise that Apple probably gave Fujitsu a lot of money to use the mark.  Public records recently unsurfaced indicate that Fujitsu assigned the rights to Apple for the iPad mark which will avoid a drawn out expensive court battle over the iPad name with Fujitsu.  [6]  Whether Mag-Tech intends to oppose the mark is still unclear, but after Fujitsu’s relinquished its claim to the mark, Apple no longer has to worry about the party with the most resources coming after it when it starts selling iPads next month.

[1] Fujitsu U.S.A., IPAD Marketing Brochure, 2010, available at http://solutions.us.fujitsu.com/downloads/retail/DS_IPAD.pdf (last visited Mar. 26, 2010).

[2] Hiroko Tabuchi, IPad?  That’s So 2002, Fujitsu Says, New York Times, Jan. 28, 2010, available at http://www.nytimes.com/2010/01/29/technology/companies/29name.html (last visited Mar. 26, 2010).

[3] U.S.P.T.O., Submitted Requests by Apple Inc. for an Extension of time to Oppose the Fujitsu Ltd. Trademark Renewal for the iPad Mark, 2009, available at http://ttabvue.uspto.gov/ttabvue/v?pno=76497338&pty=EXT (last visited Mar. 26, 2010).

[4] U.S. Trademark Application Serial No. 77913563 (IP Application Development L.L.C., Applicant).

[5] Susan Decker & Connie Guiglielmo, Apple Gets IPad Trademark from Fujitsu, Records Show, Business Week, Mar. 26, 2010, available at http://www.businessweek.com/news/2010-03-26/apple-gets-ipad-trademark-from-fujitsu-records-show-update1-.html (last visited Mar. 26, 2010).

[6] Trademark Assignment Abstract of Title from Fujitsu to Apple Inc., Mar. 17, 2010, available at http://assignments.uspto.gov/assignments/q?db=tm&sno=76497338 (last visited Mar. 26, 2010).

Concealed Handgun Permit Statutes Clarified in CO Appeals Decision

Well, sort of. The decision clarifies certain parts, but leaves ambiguity in the interpretation of other areas of the law. The recent Colorado Court of appeals decision clarifies due process requirements for concealed handgun permit revocation and issuance. The decision, which was handed down on Dec. 24th, 2009 was a ruling in favor of a concealed weapons permit holder who had his concealed carry permit revoked by the Sheriff of Arapahoe County, J. Grayson Robinson. You can read the decision HERE. Essentially, the Sheriff had stated the reason for revocation was based on the fact that the permit holder had been charged with a crime. The charges which the Sheriff based his decision on were later dropped.

What happened next ended up being the key to the decision. The Sheriff had made an independent determination that the client would be a danger to himself or others should he be permitted to carry a concealed weapon. However, the Sheriff did not notify the petitioner that this was the [new?] basis for his decision to revoke the permit. When the permit holder asked for the Sheriff to review the revocation, the Sheriff held a hearing and subsequently denied the permit, based on the Sheriff’s independent finding that the permit holder would pose a danger to himself or the public.

The Sheriff’s decision was reviewed by the District Court of Arapahoe county, where the court ruled in the Sheriff’s favor. The decision was then appealed to Colorado Court of Appeals, the petitioner’s brief made three arguments: 1) The Sheriff’s procedure did not afford the client appropriate due process (notice and opportunity to be heard) because there was no notice of the independent determination; 2) The evidence presented by the Sheriff was insufficient to show clearly and convincingly (as required by law) that the client would be a danger to himself or others; and 3) because of the unique wording of the law, the District Court should have allowed more hearings on the evidence before handing down its decision.

The Court of Appeals ruled on the due process issue, finding that the Sheriff’s procedure lacked appropriate due process and remanded the case to the Sheriff for a hearing in accordance with the notice requirements.  As the Sheriff’s procedure is quasi-judicial in nature, the permit holder is entitled to notice and opportunity to be heard and such notice should make him aware of the case against him so that he have an opportunity to rebut it. The Court found that the Sheriff’s procedure did not meet these requirements. The Court, therefore, did not have to rule on the other two issues, leaving them unaddressed.

As to the second issue raised in the brief, that the evidence was not clear and convincing. This is essentially arguing “plain error” in the finding of facts by the trial court, an argument which is rarely successful because the Appeals Court will give much deference to the trial courts findings of fact. You can read a summation of most of the ‘evidence’ offered by the Sheriff and ponder whether it is, in your opinion, clear and convincing evidence that such a person would be a danger to themselves or others; the Court of Appeals nicely included that in their opinion to which I linked above.

The third issue was not addressed by the court, again, having already decided the case on due process grounds. The concealed carry statute states that the Sheriff “may” revoke the permit if he has a “reasonable belief” that the holder of the permit would be a danger to himself or others should he have a concealed carry permit. A different section states that upon judicial review such a determination must be proved by clear and convincing evidence. This raises an interesting question.

With two different standards of proof at two different review levels, should there be a different procedure standard for judicial review apart from the “record review” afforded to appeals from most other administrative agency decisions? In this case, the petitioner’s brief argued in the affirmative. During oral arguments the panel of judges was very interested in this distinction and at one point inquired as to what exactly has to be proved by clear and convincing evidence.

Does the Shriff have to prove by clear and convincing evidence that he had a reasonable belief about the danger or does the Sheriff have to show by clear and convincing evidence that such a danger exists? Though the panel seemed interested in this distinction, they did not need to make such a determination. That will be left to later decisions. If the eventual judicial construction favors the former reasoning, then there will be less evidentiary problems at the District level, making it more tantamount to a normal administrative appeal. The case for this has to be weighed against the strong statutory language differentiating the burdens of proof and a legislative declaration that the matter is of constitutional importance; together these give rise to the argument that the legislative intent indicates the latter construction.

This is a big part of the case law that is still pretty open-ended. It will be interesting to watch how it develops in the future with this opinion now published and on point as to the due process issue.

~Eric Wessels

Malted Beverages, Marijuana Ballot Initiatives

Initiatives are at this time being pushed to change the way Coloradans buy beer, liquor and marijuana.

Initiative 48, set to go before the Title Setting Board on April 7th this year would allow grocers and convenience stores to sell full strength beer – instead of the 3.2 beer currently allowed – wine and spirits. Initiative 48, backed by Colorado Legislative candidate and Denver Deputy District Attorney Blake Harrison, would also allow liquor stores to operate more than one location.

Initiative 47, backed by the group Safer Alternative For Enjoyable Recreation (“SAFER”) – based in Colorado – would look to legalize and regulate the taxation and sale of marijuana. The Colorado Constitution already legalizes marijuana to a limited extent, for medical use. The amendment which does so, however, does not prohibit such further legalization but there is no Constitutional guarantee of a right for a non-patient to buy, sell or possess the substance.

It will be interesting to see how far these initiatives go. An initiative similar to 47 failed in 2006, with a fairly substantial 58% of voters declining the measure. We are told that Initiative 47 is broader than the failed initiative so we will see how voters respond. A bill which would allow grocery stores to sell full-strength beer did not make it out of committee earlier this year.

~Eric Wessels