Monthly Archives: October 2014

Trademark your business name in Mississippi

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Many businesses overlook the importance of trademarking their name and and logo. Although requirements for the registration of all trademarks are similar, there are minor differences in registering a name as a trademark and trademarking a logo.  If a business has both a name and a logo, separate trademark applications should be filed. Trademarking the logo should be the first priority.

By filing an application with the United States Trademark and Patent Office, a business may trademark a word or words using standard characters or through stylized characters. Stylized word trademarks are a hybrid of both logos and names. A trademarked word or name informs the public of the source or name of the product, the style of the trademark projects the source or name in a fashion similar to a logo. Examples of stylized word trademarks include the stylized trademarks below:hplogo.  . pepsi

Businesses needing name or logo protection and specific stylized lettering should file two separate trademark applications. Using the example above, the name “Pepsi” could have trademark protection and another trademark protection for the stylized trademark. The business receives optimum protection because filing for words only is the strongest protection for the words, and filing separately for stylized lettering is the strongest protection for the stylized lettering.

After a business has created a name, performed a trademark search, and sold the product bearing the trademark in commerce, it may file for an actual use application to register the trademark. If the business is waiting to use the the trademark commercially, it will file on an intent to use basis if it has a bona fide intent to use the trademark. The United States Trademark and Patent Office will not register the trademark until it is used in commerce or a bona fide intent to use has been properly shown.

The use in commerce requirement can be shown through the the trademark’s use in connection with products or services. If the name is simply the name of a business or enterprise, it is known as a trade name. If the business trademark and its trade name are the same, that name will be both a trade name and a trademark.  If a business seeks to protect its trade name, it should use that name as a trademark in connection with its goods and services.

During the application process, the applicant must select the applicable goods or services in which the products or services bearing the name are or will be sold or offered. The applicant must also be able to demonstrate that the name can be distinguished from other names.

Once the application is completed and filed, the USPTO examines the trademark to determine whether it is eligible for registration. The application may be opposed by another filer seeking to protect a competing or similar mark. If the applicant business can establish priority of use, they will likely prevail over the the competing filer.

If the name or logo is successfully trademarked, the business will receive protection for its goods or services. The business should be aware that it will not receive optimum protection outside of the specific goods or services listed.   To prevent abandonment of the trademark, the business holding the trademark should continue to use the name in commerce.  Also, the business should monitor the trademark to prevent infringement.

Although the applicant need not be an attorney to file for a trademark, a trademark attorney should be hired to ensure proper compliance.

Carjacking Crime in Mississippi

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Miss. Code Ann. § 97-3-117 defines carjacking as “knowingly or recklessly, by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempting to do so, or by any other means taking a motor vehicle from another person’s immediate actual possession.” .  

To obtain a conviction for the charge of carjacking, the prosecution must show that, 1) a vehicle was forcibly or sneakily taken; 2) from another person; and; 3) that the other person was in immediate possession of the vehicle when it was taken

However, the first requirement does not necessarily require that the car be taken through a violent act or even through fear and intimidation.   If the defendant took control of the vehicle while the owner was pumping gas, the first requirement is applicable.

The victim does not necessarily have to be in the car to be convicted of car jacking.  In the Mississippi case of Young v. State, a husband and wife were washing their cars at a local car wash.  As the couple was washing the husband’s car, the defendant took the keys from the wife and took her car parked in the next bay.  The defendant was charged with carjacking.  His defense to the charge was that the wife was not actually inside of the vehicle and not in “immediate possession” of the vehicle. So, therefore, the actual crime of carjacking did not occur.  The court held that “we cannot agree that the legislature intended the statute be construed so literally as to mean that a person commits a carjacking only when an individual is physically inside the vehicle.”  Young v. State, 962 So.2d 110 (Miss.Ct.App.2007).

A conviction of carjacking carries a fine of up to $5,000 and up to 15 years incarceration.  Miss. Code Ann. § 97-3-117 (1) (a).

Mississippi  statute further holds that anyone convicted for attempted carjacking will receive the same punishment as an actual carjacking .   Miss. Code Ann. § 97-3-117 (1) (b).

If someone is convicted twice of armed robbery in connection with a carjacking or even for simple carjacking the punishment doubles.  A second offense of armed carjacking could result in 60 years incarceration  Miss. Code Ann. § 97-3-117 (3).

The use of a dangerous or deadly weapon, including imitations of deadly weapons, will enhance the crime of carjacking into Armed Carjacking. Miss. Code Ann. § 97-3-117 (2), A conviction for armed carjacking can result in increased penalties.  The fine for armed carjacking can be as high as $10,000 in fines and up to 30 years in prison.  Miss. Code Ann. § 97-3-117 (2) (a).

Armed Robbery in Mississippi

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Miss. Code Ann. § 97-3-79., defines armed robbery as “feloniously [taking] the personal property of another, “by the exhibition of a deadly weapon” in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person . . . .” .

To obtain a conviction for the charge of robbery, the prosecution must show that, 1) That you had a “felonious intent;”; 2) that you used force or putting in fear as a means of effectuating a theft; 3) that a deadly weapon was used and: 4) that you took and carried away someone else’s property from the victim’s person or in the victim’s presence.

  The punishment for armed robbery may include a life sentence.

Involuntary Commitment to a Public Institution

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Under Mississippi Code Ann §41-31-1 et seq, individuals suffering for drug and alcohol abuse may be involuntarily committed to a private facility.  The law requires that the person asking the court to do so be either a spouse, parent, next of kin, friend or relative.  The Petition for Involuntary Commitment must be filed in the county of the patient’s residence or county in which he or she is found.

The Petition must allege that the patient is an alcoholic or drug addict, a Mississippi resident who is unfit to manage their affairs, OR a danger to themselves or others, OR lost the power of self-control, AND who is in need of care and treatment, AND that treatment will improve the health of the patient.

Upon filing the Petition, a hearing will be set, summons issued and hearing held five to twenty days after filing.  The Defendant must served not less than three days before the hearing.

At the commitment hearing, the Chancellor will hear evidence presented by the Petitioner.  Such evidence may consist of the testimony of witnesses.  The Chancellor may also order an examination of the Defendant.

The Court will consider all of the above factors to determine whether involuntary commitment is appropriate.  If Petition is granted, the judge will enter an order for 30-90 days of treatment

Involuntary Commitment to Private Facilities

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Under Mississippi Code Ann §41-32-1 et seq, individuals suffering for drug and alcohol abuse may be involuntarily committed to a private facility.  The law requires that the person asking the court to do so be either a spouse, parent, next of kin, friend or relative.  The Petition for Involuntary Commitment must be filed in the county of the patient’s residence or county in which he or she is found.

The Petition must allege that the patient is an alcoholic or drug addict, who is powerless over alcohol or drugs and whose life is unmanageable.  The Petition must also allege that the mental and physical health, continued family life, position in the community are dependent upon receiving treatment and that the patient has refused to self-commit despite requests; that the petitioner has selected a treatment facility or combination of facilities; financial arrangements have been made and that the facility has approved admission, subject to commitment by Court.

The Court will consider all of the foregoing factors plus “clear and convincing” evidence that involuntary commitment is appropriate.  The length of treatment may be for 60 days maximum and an additional 120 days as an outpatient or longer if the treatment facility decides additional treatment is warranted.

 

Possession of Marijuana with Intent to Distribute

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Mississippi Code Section 41-29-139 makes it a felony crime to “sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell barter, transfer, distribute or dispense” marijuana.

 If the amount of marijuana involved is less than 30 grams, the potential sentence is three (3) years in prison, and a $3,000.00 fine.  In the case of a first offender who is charged with possession with intent to sell or distribute more than 30 grams, but less than 1 kilogram or marijuana, the potential sentence is twenty (20) years in prison, and a fine of $30,000.00.  In all other cases, the potential sentence is thirty (30) years in prison, and a fine of $5,000.00 (minimum) to $1,000,000.00 (maximum).

In Mississippi, the State must prove beyond a reasonable doubt that the accused possessed the marijuana with the intent to sell or distribute.  The government is allowed to prove intent through the use of circumstantial evidence.

Under Mississippi law, the State may try to prove that a person had the intent to sell or distribute by showing that the amount of the marijuana in the person’s possession is proof of intent to sell.  To charge and convict a person based upon the amount of marijuana, the government must prove that the marijuana in his possession exceeded the amount that would be reasonable for personal use.  If the amount of marijuana could be for personal use, as well as to sell or distribute, then the person cannot be convicted of possession with intent.

Additionally, the packaging of marijuana as well as other evidence of drug trafficking may be used to prove possession with intent to sell or distribute.

Proving possession with intent based upon the weight and packaging of marijuana is difficult.  The Mississippi Supreme Court has held that where a defendant was caught with 323.4 grams of marijuana, two (2) scales, a device used to hold marijuana, rolling papers, and $356.00 in cash, there was insufficient evidence of intent to sell or distribute.  The Court held that the amount of marijuana was within the amount that a person could reasonably use, and that the holding device and rolling papers were consistent with using marijuana, not selling it.  Jowers v. State, 593 So.2d 46 (Miss. 1992).

False Statements to Credit Card Company

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Making false statements to obtain a credit card is prohibited by law in Mississippi.  Mississippi Code Section 97-19-11 makes it illegal to “directly or indirectly” provide a “false statement in writing with intent that it be relied upon with respect to his identity or that of any other person, firm or corporation.”

In Mississippi, providing false information to obtain a credit card is a misdemeanor.  If convicted, a person is faces a sentence of six (6) months in jail and a fine of $1,000.00.

Mississippi Code Section 97-19-11 limits false statements to those regarding identity.   Other false statements such as those involving income, do not fall under this statute.  However, lying about such other matters to obtain a credit card may be illegal under other state and federal criminal statutes.  There are defenses to the charge of making false statements to obtain credit cards in Mississippi.

False Pretense in Mississippi

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§ 97-19-21. Credit cards; use to obtain things of value or to operate automatic cash dispensing machines with intent to defraud; penalties.

Mississippi Statutes
Title 97. CRIMES
Chapter 19. FALSE PRETENSES AND CHEATS
Current through 2014 Second Extraordinary Session
§ 97-19-21. Credit cards; use to obtain things of value or to operate automatic cash dispensing machines with intent to defraud; penalties

(1) It is unlawful for any person, with intent to defraud the cardholder, the issuer, a person or organization providing money, goods, property, services or anything else of value, or any other person, (a) to use a credit card or credit card number obtained or retained in violation of Sections 97-19-5 through 97-19-29 , or a credit card which he knows is forged, for the purpose of obtaining money, goods, property, services or anything else of value, or (b) to obtain money, goods, property, services or anything else of value (i) by representing without the consent of the cardholder that he is the holder of a specified card, or (ii) by representing that he is the holder of a card when he has reason to know that such card has not in fact been issued, or (iii) by representing that he has been authorized to use the credit card or credit card number.
(2) It is unlawful for any person, with intent to defraud the cardholder or issuer of a credit card used in the operation of an automatic unmanned cash dispensing machine, to use such card for the purpose of obtaining money from such machine.
(3) Any person convicted for a violation of subsection (1) or (2) of this section shall be punished as follows:
(a) For a first offense of violating subsection (1) or (2) of this section, whenever the value of the money, goods, property, services or other thing of value obtained or attempted to be obtained is less than One Hundred Dollars ($ 100.00), the person committing the offense shall be punished by a fine not to exceed One Thousand Dollars ($ 1,000.00), or by imprisonment in the county jail for a term not to exceed one (1) year, or by both such fine and imprisonment.
(b) For a second or subsequent offense of violating subsection (1) or (2) of this section, whenever the value of the money, goods, property, services or other thing of value obtained or attempted to be obtained is less than One Hundred Dollars ($ 100.00), the person committing the offense shall be guilty of a felony and, upon conviction, shall be punished by a fine of not less than One Hundred Dollars ($ 100.00) nor more than One Thousand Dollars ($ 1,000.00), or by imprisonment in the State Penitentiary for a term not to exceed three (3) years, or by both such fine and imprisonment.
(c) Whenever the value of the money, goods, property, services or other thing of value obtained or attempted to be obtained is One Hundred Dollars ($ 100.00) or more, the person committing the offense, whether the offense is a first, second or subsequent offense, shall be guilty of a felony and such person, upon conviction, shall be punished as provided in paragraph (3)(b) of this section.
(4) For the purpose of determining the punishment to be imposed under subsection (3) of this section, the value of all money, goods, property, services and other things of value obtained or attempted to be obtained by two (2) or more uses of the same credit card shall be aggregated.