CDDC Announce 2018 Award Winners

The 4th Annual Intermountain Construction Defect and Dispute Conference was held Friday, February 9th, 2018 at which the organizers recognized five professionals in the community for their contributions in the construction industry.

Lincoln Harris received the Attorney of the Year Award honoring him for his level of excellence and longtime service in the field of construction law. Besides this award, he was acknowledged for his work in local government and solving the legislative issues facing his clients. Lincoln’s further credits, which were pointed out at the ceremony, are representing the Appalachian Education and Defense Funds.


Law Is Stranger Than Fiction | Episode 5 Squirrel

Steven: Good afternoon. I’m Steven Bergman, one of your hosts of Law is Stranger than Fiction.

Barry: And I’m Barry Scholl, the other host.

Steven: We are shareholders in the Salt Lake City law firm of Richards Brandt Miller Nelson and today’s story is rankly just plain nuts. Barry?

Barry: Yes this, ironically enough, is a story that comes out of gun barrel Colorado in rural Boulder County.

Steven: Does it involve a weapon?

Barry: It does involve a weapon and it also involves squirrels.

Steven: Does it involve a weapon being used on the squirrels?

Barry: Not on the squirrels. It involves a weapon being used in an altercation over the feeding of squirrels.

Steven: Okay what were these squirrels being fed?

Barry: Pounds of peanuts, according to news reports.

Steven: Okay so what… tell me a little bit more about the story.

Barry: The defendant had been a habit of leaving several pounds of peanuts around the neighborhood to feed area squirrels. Do you want to know why he was feeding area squirrels?

Steven: Well I actually am kind of more concerned about the several pounds of peanuts being left around the neighborhood given the number of kids today with peanut allergies. But, sure, why was he feeding the squirrels?

Barry: Well according to his reports he was feeding squirrels because it made him feel closer to his deceased parents

Steven: Of course, I mean that seems so obvious- we should have thought of that.

Barry: Yeah, yeah.

Steven: Okay so he’s planting or dropping off pounds of peanuts throughout the area. Was he doing anything else?

Barry: Well he was leaving flyers around the neighborhood, as well. Asking his neighbors not to remove the peanuts and signing them the squirrel guy.

Steven: Okay, so he’s contributing to both litter and potential allergic reactions throughout the neighborhood. What else?

Barry: Well, according to his neighbors, they objected to the squirrels leaving husks around the neighborhood and was involved in a dispute with some of his neighbors over whether or not it was proper to be feeding the squirrels.

Steven: Okay so what happened that led to the altercation in Gun Barrel?

Barry: Well one of his neighbors removed a flyer. Evidently this was one of the neighbors who had been vocal in his criticism of the practice of feeding squirrels. The two became involved in a dispute and the defendant shot his neighbor in the buttock.

Steven: Okay, so now, from what I understand, after he shot his neighbor he then turned himself in, right?

Barry: That is correct.

Steven: Okay and so he gets charged?

Barry: Yes.

Steven: They actually went through a trial. Right, no plea bargain here?

Barry: No plea bargain. Tried in Boulder County Colorado.

Steven: What was his defense?

Barry: His defense was self defense.

Steven: Okay so he was protecting his non-existent right to drop off peanuts in the area to feed squirrels.

Barry Apparently yes.

Steven: So how did that self-defense claim work out for the defendant?

Barry: Not so well. The jury convicted him and a judge sentenced him to 12 years in prison for a second degree attempted murder and first degree assault.

Steven: That’s just plain nuts. Okay so I guess he’s cooling his heels somewhere as a guest in the state of Colorado at this point.

Barry: I believe that is correct and I think the judge summed things up when she noted that this was all precipitated by a «petty petty petty dispute over the feeding of squirrels that quite frankly is just so unfortunate.»

Steven: So three petty’s? Three petty’s, thats seriously petty.

Barry: Yeah, very petty.

Steven: More than a NASCAR race.

Barry: She added that even if the neighbors were mean to the defendant that certainly didn’t give him license to shoot an unarmed man in the back. Actually we believe that was in the buttock.

Steven: Okay so the moral of this story is if you’re going to feed the squirrels maybe leave the weapons at home.

Barry: Yes.

Steven: You don’t want to get to angry there. Hopefully your life does not involve armed altercations in public areas over the feeding of squirrels, but if strange things happen to you and you need an attorney please give the attorneys of Richard Brent Miller Nelson a call and for now this is…

Together: Law is Stranger than Fiction

An Epic Battle of Blockbuster Proportions: Part II What is Genericide in Trademark Law and How Do I Avoid It?

Barry Scholl
February 2018

In our last action-packed blog posting, we discussed the trademark battle between San Diego’s Comic-Con and Salt Lake City’s Comic Con. The two parties had traded (symbolic) powerhouse blows in a California federal court over whether Salt Lake City’s use of the term “Comic Con” (without a hyphen) infringed on San Diego’s registered trademark for “Comic-Con” (with a hyphen). Organizers of the San Diego event argued that Salt Lake City is free-riding on the term in order to confuse the public into thinking the two events are related. The organizers of the Salt Lake City event argued that the term had become genercized over time due to widespread use by other similar conventions and petitioned the United States Patent and Trademark Office to cancel the San Diego group’s trademark.

With that preliminary explanation out of the way (those of you who are interested in reading more about the dispute can go here for our prior blog entry, we now turn to this week’s topic and the question of how to further define genericide and, finally, the important issue of avoiding genericide in your trademarks.

Avoiding Genericide

In the words of the United States Patent and Trademark Office, “Generic terms are terms that the relevant purchasing public understanding as the common or class names for the goods or services.” Generic terms (e.g., “detergent”) can never serve as registered trademarks because they do not identify the source of the product or service, which is a key requirement of trademark registration.

What Aspirin, Escalators and Cellophane Have in Common

A number of common terms started out as registered trademarks but became generic over time. Examples include aspirin, escalator, Hoagie (as in sandwiches), and shredded wheat (as in breakfast cereal). If you do not carefully monitor the use of your mark and allow it to be used to describe a particular type of product (for example, cellophane), rather than to designate you as the origin, you run a very real risk of that term becoming generic and losing your rights.

Protect Your Intellectual Property.

There are a number of actions a trademark owner can and should take to safeguard its trademark. We’ve included a couple below, but there are others that you should adopt to protect your trademark rights.

  • If you have a registered mark, always use the ® symbol when using the trademark to give the public notice that this is a registered trademark. If you’re the wordy type, you can also use the phrase “Registered in U.S. Patent and Trademark Office.”
  • Always capitalize the trademark to designate its status as a trademark. For example, don’t write “Nine out of ten dishwashers prefer acme detergent.” Instead, write “Nine out of 10 doctors prefer Acme® detergent.”

And returning to our original subject, what about the battle between Comic-Con and Comic Con? In early January, Salt Lake’s Comic Con filed a motion for a new trial, arguing that the widespread use of the term “Comic Con,” by almost 100 events across the country had made the “Comic-Con” trademark generic.

And so the epic battle over genericide continues. We’ll keep you apprised of any further developments.

Barry Scholl is a shareholder at the law firm of Richards Brandt Miller Nelson, whose practice specializes in business, including trademark, copyright, trade secret protection, contract negotiation and drafting, nonprofit law, and real property. He can be reached at 801-531-2000.

Deferred Action for Childhood Arrivals – Where are we now?

Kendall Moriarty
February 2018

Limbo. On June 15, 2012, President Obama unveiled a program called Deferred Action for Childhood Arrivals (or “DACA”) which would provide employment authorization and protection from deportation for individuals who entered the United States as children and who had never committed a deportable crime. The program began accepting applications on August 15, 2012. Since then, U.S. Citizenship and Immigration Services (or “USCIS,” the branch of the Department of Homeland Security that processes DACA applications and renewals) has accepted over 1.5 million applications requesting relief[1] (at $495[2] a pop, that’s more than $742,500,000 in revenue for the federal government[3]). Of those 1.5 million, more than 1.2 million have been approved.[4]

On September 5, 2017, President Trump issued a new Executive Order effectively beginning a “phasing out” DACA by giving only certain individuals the right to renew within one month’s time. Everyone else could maintain their status until its expiration, but would then lose their protection. However, on January 10, 2018, the District Court for the Northern District of California issued a preliminary injunction pausing President Trump’s order. While this pause does not revive the program entirely, it provides a window of relief for the thousands of individuals who had already been issued DACA and who needed to renew it but missed the deadline or did not qualify based on President Trump’s October 5, 2017 requirement.

In response to the court’s decision, on January 13, 2018, USCIS issued a policy update[5] stating that the agency would again accept DACA renewal applications. This included applications for those who had let their DACA status expire more than a year before President Trump’s September 5, 2017 announcement. However, those who have never been issued DACA cannot newly apply.

Still, the court order allowing eligible individuals to renew their DACA status provides important physical and emotional security for thousands of individuals. Employers who have hired and trained DACA recipients as part of their workforce now also enjoy an added measure of stability.

What does this mean for you?

If you currently have DACA, you may be eligible to renew your work authorization and DACA status. If you have any questions on whether you qualify or how or when you should renew, please call us.

If you are an employer who has hired DACA workers and want to know how these changes affect you and your business, please call us.

If you have never had DACA but want to know if you have other options for seeking and obtaining status in the United States, information is power; please call us.

Author: Kendall J. Moriarty, immigration and general litigation attorney at Richards Brandt Miller Nelson.



[3] The Institute on Taxation and Economic Policy found that DACA-eligible individuals and DACA recipients “contribute an estimated $2 billion a year in state and local taxes.”

[4] Id.


Law is Stranger than Fiction Episode 6 Immigration Prostitution

Steven: Good afternoon and welcome to another session of Law is Stranger than Fiction. I am one of your co-hosts Steven Bergman.

Barry: And I am Barry Scholl, the other co-host. We are shareholders in the law firm of Richards Brandt Miller Nelson in Salt Lake City.

Steven: Today we have a special guest, Barbara Melendez, the head of our immigration law practice.

Barry: And Barbara is going to ask the existential question, «To be or not to be a prostitute a pimp or a John and which one might get me deported?»

Steven: The answer might surprise you.

Barbara: It’s true. So should we talk about how we step into that option to be a prostitute, a John, or a pimp, and which one actually gets you deported? I think you have to ask the question of what is a crime of moral turpitude, which is the base for having a foreign national removed from the United States.

Barry: Okay then we will ask, what is a crime of moral turpitude?

Barbara: All right, well a crime of moral turpitude is a crime that is vile or depraved or inherently terrible or contrary to the community standards of honesty of good morals– that’s the definition.

Steven: And so you’re telling me that this definition, which I’ve come across like antitrust law for example can convicted commit an antitrust violation that’s considered a crime of moral turpitude no fraud things like that. But you’re telling me that this applies to prostitution?

Barbara: Absolutely.

Steven: Okay in what way?

Barbara: Well under the regulations under INA 212A it talks about if you are the prostitute then you are committing a crime of moral turpitude. However, case law has shown that if you are, instead of the prostitute, the John then you have not committed a crime of moral turpitude because you are procuring this service. And if you’re the pimp you’re providing a service and it’s not considered a problem of moral turpitude.

Steven: Notwithstanding, the fact that all three are illegal?

Barbara: Correct, but being the prostitute under INA regulations and, more importantly under a decision by the Board of Immigration Appeals, has determined that the prostitute, who is actually not only committing the crime, but she is violating the standards of good moral character, under the crimes involving moral turpitude, she then or he becomes deportable.

Barry: So that is the penalty for being guilty of moral turpitude?

Barbara: The fact that you are selling your body to services.

Steven: And has this issue actually gone before the Board of Immigration Appeals?

Barbara: It certainly has. It was a decision decided on Gonzalez sex plan, a decision by the Board of Immigration Appeals that broke down the language and explained that it appears as if Congress when they wrote this law was focused primarily on those who are committing the crime not those who are procuring the crime.

Barry: Now Barbara, you mentioned INA will you tell us what that is?

Barbara: Sure, the INA is the immigration Nationality Act. It’s basically the premise of law for all immigration related issues.

Steven: And has this issue of prostitutes being deported for prostitution actually gone before the Board of Immigration Appeals?

Barbara: It certainly has. It’s gone before one of the key cases is called the matter of Gonzalez sex appeal and that case determines exactly how the Board interpreted the regulation related to prostitution. Let’s step back historically a little bit so that we understand when I talk about somebody being deported it’s also the same thing as being admissible in to the United States. So you can be admitted into the United States or you can be removed from the United States. It’s almost the mirror image of being allowed to remain or being allowed to leave.

Steven: Okay and so in this case you’re talking about… what happened, what was the ruling in that case?

Barbara: So the ruling in that case was that procuring prostitution– that’s okay, but being the prostitute that’s not okay. And it goes back to the history of people who were admitted into the United States years ago. When the INA was established you could not be admitted into the United States or be admissible if you were a prostitute, if you had mental problems, if you had didn’t have enough money, or someone to support you. Now we’ve added a terrorist provision, if you’re a terrorist. Um, all these provisions are reasons to not be admissible. Terrorism, prostitution just happens to be one of them. Prostitution hysterically– historically, not hysterically– historically, prostitution has been defined as the person selling their body versus the person who has been purchasing.

Steven: So is an example, it’s better to be the buyer than the seller?

Barbara: That would be true.

Barry: So, is this enough to keep you out the door?

Barbara: It’s enough to keep you out the door and it’s enough to not allow your foot to get in the door.

Steven: What about the 5 inch nail in the foot?

Barbara: That one too.

Steven: Alright, so if you find yourself with a strange immigration question, contact the attorneys at Richards Brandt Miller Nelson. For now, this is…

Together: Law is Stranger than Fiction.

Tread Carefully – An Ethics Reminder

Zack (Zachary) Peterson
January 2018

In State v. Ellis, 2018 UT 02, Justice Himonas wrote a separate, concurring opinion that provides a reminder of an attorney’s ethical obligations as an officer of the Court and of candor to the tribunal. Before the district court, the prosecutor requested to use a preliminary hearing transcript at trial because a witness was unavailable to testify at trial. The prosecutor made representations to the district court that the witness was a “key witness” and the State could not proceed without the testimony. The district court allowed the use of the preliminary hearing transcript at trial. Mr. Ellis was convicted at trial.

On appeal, the Utah Supreme Court reversed the district court’s decision to allow the use of a preliminary hearing transcript, finding it did not meet the hearsay exception in Rule 804. In the briefing, the State took the position that the admission of the preliminary hearing transcript was harmless error, and therefore, the conviction should be affirmed.

Justice Himonas wrote a separate, concurring opinion to point out the inconsistency in the two positions the State had taken in the course of the proceedings. At the district court, the witness was a key witness who was vital to the prosecution of the case. On appeal, the witness’ testimony was insignificant and its admission was harmless error. Justice Himonas noted that the State’s conduct in the case was beyond reproach, and he acknowledged that perceptions about evidence change before trial as compared to on appeal. Nevertheless, he stated: “But when a prosecutor has stated their belief that evidence is important, I’d tread carefully before finding any error in admitting it to be harmless.”

This concurring opinion serves as a reminder to be cautious in the positions that are taken with the Court. A position which appears reasonable one day may appear less so as the case proceeds down the long, winding road.

Zachary Peterson is a shareholder at the Salt Lake City law firm of Richards Brandt Miller Nelson. He can be reached at



Law is Stranger Than Fiction Episode 4: Peep Show on the Dead

Do the dead have privacy rights? This is as bizarre as it gets! Watch the entire video now!



Law is Stranger than Fiction is a humorous weekly vlog series presented by the Salt Lake City law firm of Richards Brandt Miller Nelson that focuses on the absurd, the outrageous, and the hard-to-imagine aspects of law and the legal system in today’s society. These guys truly couldn’t make this stuff up. To learn more about Richards Brandt Miller Nelson


Barry: [00:07] Good Afternoon, this is Law is Stranger than Fiction. I’m one of your hosts, Barry School.


Steven: [0:12] And I am your other host, Steven Bergman. We are shareholders at the law firm of Richards Brandt Miller Nelson, in Salt Lake City, Utah.


Barry: [0:19] Today we are going to start with a question—do the dead have privacy rights?


Steven: [0:23] Before I answer the question, Barry why are you asking?


Barry: [0:26] Uh, this question comes to the forefront as a result of a recent incident in a Denver hospital, in which five nurses were disciplined for peek-a-boo with a patient both before and after his untimely demise. Evidently, this particular gentleman was very well-endowed. One told the others and then in serially they went to investigate.


Steven: [0:53] Okay so you’re saying this is both, before and after, he died.


Barry: [0:58] Yes


Steven: [0:59] Alright. I’m not even sure I want to know… so before, you mean like, they were literally just going into the guys room and lifting up his robe and looking at him or…?


Barry: [1:06] Apparently so—yes.


Steven: [1:08] And after he was dead, they did the same thing?


Barry: [1:10] Apparently so—unfortunately the answer is yes.


Steven: [1:14] Okay so, before I go on… how did they get got?


Barry: [1:19] A sixth nurse, not participating in these activities, heard them talking and turned them in.


Steven: [1:27] And she was able to figure out what they were talking about based on the dialogue—I assume?


Barry: [1:31] Uh, and the length of the conversation, I think.


Steven: [1:34] Okay, well it was a big topic, what can I say? So, to answer your question, the answer is yes, the dead do have privacy rights. They are entitled to dignity. They are entitled to be treated with care. They are entitled to be treated with respect. And there are a number of statutes in Utah, and virtually every other state, to protect the rights of the dead. Your question raises some other issues though. You said these nurses were disciplined. How were they disciplined?


Barry: [2:01] Well the police were summoned and determined there wasn’t enough information to bring criminal charges. But they were suspended and each got a note put in their file.


Steven: [2:12] Okay, I can only imagine what that note in the file must’ve said. So, it raises a number of employment issues– is that what you’re trying to say?


Barry: [2:18] Yes. Definitely.


Steven: [2:19] Okay, what about retaliation? Did these nurses retaliate against the person that exposed their entertainment scheme?


Barry: [2:28] There’s no evidence to that effect.


Steven: [2:30] Okay. But if you’re an employer and you’ve got employees in situations like this or something else arises—you do have to worry about that. How do you protect an employee who informs you about potentially illegal activities that other employees are doing? You as an employer want to know what’s going on in your company and you want to be protected. Because if your employees do something illegal, you as an employer could potentially be liable for that.


Barry: [2:53] [Nodding his head in agreement] Yep.


Steven: [2:54] So what about liability? Are there liability issues here, with this hospital?


Barry: [2:58] Well undoubtedly.


Steven: [2:59] Okay. I wonder how they protect them against that one. So, and then the other question, of course, how does the individual whose parts were examined… did they disclose to the family?


Barry: [3:13} Apparently not.


Steven: [3:14] Okay, so I’d love to see someone claiming it was their family member tried to figure that one out. Uh, the short answer though is yes, the dead do have privacy rights. And if you’re an employer and you have issues between employees in fighting or one employee’s telling you about illegal activities, potentially illegal activities, another one is doing… you need to talk to qualified council. We at Richards Brandt Miller Nelson have a number of employment law attorneys that can assist you in that regard.


An Epic Battle of Blockbuster Proportions Underscores the Importance of Protecting your Trademarks from Genericide, Part I

January 2018

In December 2017, the epic trademark infringement battle pitting San Diego’s long-running “Comic-Con” versus Salt Lake City’s upstart “Comic Con,” reached what appeared to have been at least a temporary lull when a federal jury in California found that contrary to Salt Lake Comic Con’s claims, the San Diego group’s trademark is valid. The jury awarded $20,000 in damages to San Diego Comic-Convention, much less than the $12 million being sought by the San Diego event, because the jury didn’t find Salt Lake City group’s infringement to be willful.

The dispute involved differing interpretations of the term “comic con” (with and without the hyphen). San Diego Comic Convention has a registered trademark for “Comic-Con” and argued that Salt Lake City’s “Comic Con” capitalized on the good will of San Diego’s Comic-Con’s mark in order to confuse attendees into believing the two events are related. It sought an injunction to prevent the Salt Lake City event from using the term “comic con” for any event, logo, trademark or website.

Salt Lake City’s Comic Con countered that more than 100 events across the country have long used the term “comic con” to describe events celebrating popular culture, superheroes, fantasy, science fiction, etc. Consequently, Salt Lake Comic Con argued, the trademark has become genericized, and it petitioned the United States Patent and Trademark Office to cancel the San Diego group’s trademark.

In a pre-trial order, U.S. District Court Judge Anthony Battaglia appeared to agree (at least in part) with both litigants, writing, “After a careful review of the parties’ moving papers, the applicable law, and the evidence on the record, the Court finds that Defendants have satisfied their burden of demonstrating a genuine issue of material fact as to genericide.”

Significantly, however, the Court didn’t close the door entirely on San Diego’s argument, noting that Salt Lake City’s Comic Con might be free-riding on the reputation of the well-established San Diego Comic-Con, because consumers could believe the two events are hosted by the same source:

“Here, both of the services at issue are indeed complementary of each other,” “Battaglia wrote, pointing out that each of the events involved three-day fan conventions celebrating comic books, comic art, science fiction, fantasy films, and similar entertainment.

In early January, several media sources reported (either erroneously or prematurely, as it turns out) that Salt Lake’s Comic Con had agreed to change its name. However, only a few days after these reports appeared, lawyers for Salt Lake’s Comic Con filed a motion for a new trial, arguing, in part, that use of the term “comic con” by other third parties could make the term generic.

What is Genericide?

In his pre-trial ruling, Judge Battaglia explained that “a mark is the victim of genericide when the ‘majority of the relevant public appropriates a trademark term as the name of a product (or service) . . .’”

Citing the formerly trademarked terms “aspirin,” “escalator,” and “cellophane,” Judge Battaglia said that each of these examples “only identified the brand or producer during the period of its initial use, however after the passage of time, they were appropriated by the public and soon became the generic name of the product.”

Avoiding Genericide

Next week, in Part II, we’ll review the elements of genericide and what you can do to protect your valuable trademarks from the fate that befell “aspirin,” “escalator,” and “cellophane” (not to mention “thermos,” “teleprompter,” and “trampoline”).

Barry Scholl is a shareholder at the Salt Lake City law firm of Richards Brandt Miller Nelson. He can be reached at

Law is Stranger Than Fiction Episode 3: Legal Dueling in Utah

Did you know that in Utah that some forms of dueling is legal? Listen in on this episode of «Law is Stranger than Fiction» to see what’s legal and what’s not!

Law is Stranger than Fiction is a humorous weekly vlog series presented by the Salt Lake City law firm of Richards Brandt Miller Nelson that focuses on the absurd, the outrageous, and the hard-to-imagine aspects of law and the legal system in today’s society. These guys truly couldn’t make this stuff up. To learn more about Richards Brandt Miller Nelson


Steven: [00:07] Good Afternoon, welcome to Law is Stranger than Fiction blog. I am one of your co-hosts, Steven Bergman.


Barry: [0:13] And I am your other host, Barry Scholl.


Steven: [0:16] We’re shareholders in the law firm of Richards Brandt Miller Nelson. And we are here today to talk about dueling. We’re not talking about Hamilton and Burr. We’re not going out to the Weehawken dueling grounds in New Jersey and we’re definitely not talking about a sword fight. And I definitely want to say that we aren’t talking about the banjos from the film “Deliverance.” But we do want to talk about dueling because surprisingly…


Barry: [0:38] In Utah some forms of dueling are legal.


Steven: [0:41] So when you say some forms, what do you mean?


Barry: [0:43] I mean as long as weapons aren’t involved and the participants are both consenting to duel, there’s no law that prevents consensual altercations in the state of Utah.


Steven: [0:55] Alright when you say consensual altercation, what does that mean?


Barry: [0:57] That essentially means mutual combat.


Steven: [0:59] Mutual combat. If… when you and I are in a bar and you insult my girlfriend or you insult my wife and we say let’s take it outside—is that mutual combat?


Barry: [1:07] As long as there are no weapons involved, it is mutual combat.


Steven: {1:09] Okay, so I can’t break off that beer bottle and have that little sharp edge you use then?


Barry: [1:13] That’s correct.


Steven: [1:14] Okay, um, when you say it’s consensual… what do you mean by that?


Barry: [1:18] I mean you have to give consent either verbally, in writing, or by your actions.


Steven: [1:24] Okay wait so I get out my cell phone and say, “Hi Barry, do you consent to fight me?”

Barry: [1:28] That would work.


Steven: [1:29] Okay or do I have to draw up a contract and have you sign?


Barry: [1:34] That might be a little more technical than required. But if that fits the circumstances, sure.


Steven: [1:38] Can you claim that it was implied?


Barry: [1:41] Sure.


Steven: [1:43] What situation would that be?


Barry: [1:44] That would be that I say, “Let’s take it outside” and you follow me outside.


Steven: [1:49} Okay, so now talking about implied consent… it’s actually an amusing story. An actor was charged with homicide in a fight with a homeless person and got out of it by claiming mutually consent. I don’t know if you’re aware of that.


Barry: [2:01] I did not.


Steven: [2:02} [Laughs] Okay. So, Utah’s statute. Where’s that statute found?


Barry: [2:07] That is found at 7-6-5-1-0-4.


Steven: [2:12] Okay what exactly does the statute say?


Barry: [2:14] The statute says that in any prosecution for criminal homicide or assault it’s no defense to the prosecution that the defendant was a party to any duel, mutual combat, or other consensual altercation, if during the course of the duel, mutual combat, or altercation if any dangerous weapon was used or if the defendant in an ultimate fighting match, as defined under the law.


Steven: [2:38] Okay, so the key is getting consent. Is that what you’re trying to say?


Barry: [2:40] That is absolutely correct.


Steven: [2:41] Okay, so as long as I and whoever I’m fighting with, if there’s consent and there’s no weapons involved then it’s not illegal to get in that fight.


Barry: [2:50] You may be violating some other law, but Utah has no law against it.


Steven: [2:53] Okay, well we’re talking about dueling today. So, I’m not worried about any other laws. Okay well that’s great. So, here’s the reality. Hopefully you aren’t finding yourself in situations when you are challenging people to fights and needing to use the protections of the statute. But there may be other situations in the course of business, the course of everyday life where you need to get consent from somebody or you need their permission or authorization to act. And in those situations, you want to make sure that consent or that authorization is valid. One of the ways to do that is get a video recording of it, put it in writing, or have other circumstances to make it look like that they agree. Anything further?


Barry: [3:31] Nope, that’ll take care of it.


Steven: [3:32] Alright, great.

Law is Stranger than Fiction Episode 2: Argentina Boat

Why does a hedge fund need its own navy?



Steven: [00:06] Good Afternoon, welcome to Law is Stranger than Fiction. I am one of your co-hosts, Steven Bergman.


Barry: [0:12] And I am your other co-host, Barry Scholl.


Steven: [0:14] We’re shareholders in the law firm of Richards Brandt Miller Nelson in Salt Lake City, Utah. And today we are talking about a lawsuit over the use of the word, “dirty.” Barry go ahead.


Barry: [0:24] Well in the 1985 “Comfort and Joy” a pair of competing ice cream companies went to war in Glasglow, Scotland. In a case of life imitating art, in Salt Lake City circa 2015 two competing soda shops went to war over use of the term, “dirty” to describe infused-sodas.


Steven: [0:46] What is an infused-soda?


Barry: [0:48] That’s a good question Steven. A “dirty” soda starts with your standard soft drink infused with additional ingredients. Typically, coconut, milk, copious amounts of sugar, cream, and other flavorings. One food blogger likened it to liquid cotton candy.


Steven: [1:06] And what is the size of these infused soft drinks, or “dirty,” or “nasty,” or “filthy” beverages.


Barry: [1:12} They are sold in jugs as large as 64 ounces and all the way down to the petite size, which I believe is 44 ounces.


Steven: [1:22] What does one do with one of these caffeinated confections?


Barry [1:25] Well these overly caffeinated confections are very popular in Utah because the majority of the population doesn’t drink hot, caffeinated drinks. So, this gives them cold caffeine in a form that one food blogger likened to liquid cotton candy.


Steven: [1:45] Okay so anyway, these two companies are in a lawsuit over the use of the word “dirty.” Right?


Barry: [1:50] Yes, the senior company was granted trademark by the United States Patent and Trademark Office for the term “dirty” as describing an infused-soft drink.


Steven: [2:00] Let me stop you right there. They got a trademark on the word “dirty?”

Barry: [2:04] They did indeed. Much to the chagrin of their competitor.


Steven: [2:06] So now they display it on their signs with a TM or “dirty” with a little “r?”


Barry: [2:11} Dirty with a little ”r.”


Steven: [2:12] Okay. More power to the them.


Barry: [2:16} You know, exactly. So, their junior competitor started using the term “dirty” as well, which spurred a lawsuit from the senior user of the “dirty” trademark. Over the use of that term and also over infringement of their trade dress, which would have been their signage, the stores, the cups that they sold these infused-sodas in.


Steven: [2:40] Well when you said that did the trademark holder claim that the alleged infringer was copying the shape, and size, and the font?


Barry: [2:51] Well trade dress could be all of those things. In this instance, they specifically argued that they were copying the look and the feel of the soda shops and the cups themselves, as well as the use of the term “dirty” to describe these soft drinks.


Steven: [3:03] Okay. Well I know in intellectual property lawsuits typically the goal is to get an injunction and often these suits end pretty quickly. Is that the case here or, fueled by caffeine, did this suit drag on?


Barry: [3:14] Fueled by copious amounts of caffeine, this suit dragged on for a couple of years. Uh, and had a chilling effect on some of the smaller soda shops in the area, which avoided using the term “dirty” to describe their offerings. Instead, using terms like “filthy” and “nasty” to describe their soft drinks.


Steven: [3:36] I actually don’t want to know what a “filthy” coke is.


Barry: [3:39] I’m with you on that one.


Steven: [3:42] Okay and so is the lawsuit still going on?


Barry: [3:43] No. Recently it was announced that the two parties had settled. Although we don’t know the terms at this time or if one or both parties are allowed to continue to use the term “dirty” to describe their soft drinks. The suit has been dismissed. But in the mean time, one thing is sure—crowds continue to line up at both establishments to get their daily dose of caffeine.


Steven: [4:06] Well, that’s great. If you ever find yourself in an issue where a patent, a trademark, or a copyright is in dispute, or you think somebody is using your intellectual property, please contact the attorneys at Richards Brandt Miller Nelson. We have a number of experienced attorneys in those intellectual property matters. And for now this is


[Together]: [4:25] Law is Stranger than Fiction.





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