Barry Johnson and Centennial Bank’s Jason McKee Team Up in the Coaches Charity Game

Shareholder Barry Johnson and Centennial Bank’s Sr. Commercial Loan Officer Jason McKee recently teamed up to play in the Charity Coaches Game for Winter Spring Babe Ruth. Both Jason and Barry are ardent supporters of Youth Sports and Baseball as they have coached together for the past 4 seasons. Congrats to both of them and best of luck to their teams in the upcoming season.

Pictured; Shareholder Barry Johnson, Jason McKee of Centennial Bank and Jason’s son Lincoln.

Miller Johnson and Altamonte Rotary Team Up on the Taste of Altamonte

Miller Johnson partnering with the City of Altamonte and the Altamonte Springs Rotary Club recently participated in the Taste of Altamonte at Crane’s Roost Park on October 14th. The event raised over $30,000 for local area charities. Congrats to the City, the Altamonte Rotary, and all the partners and area restaurants for an amazing evening.

Can You Judge Real Estate Agents by Their Social Media?

Can you judge a real estate agent by his/her social media? The answer is yes, of course, you can!

So how do you put your best foot forward on the many platforms that are out there? Well, here are 5 ways to help you shine as the diligent professional that you are, but also allow your audience to see your personality and who they would be working with:

1.       Share some personal posts- While you don’t want your business social media accounts to start looking just like your personal accounts you do, however, want to convey to your audience that you are familiar with the area and what it has to offer. One way of doing this is by posting a picture of you at a holiday parade with your family or posting a picture of food from a local restaurant. This gives your audience and potential customers a glimpse into the area and the lifestyle they could be buying into and enjoying.

2.       Be active in a mindful way- Yes, you want to be active and have updated posts, but you don’t want to just share an article and call it a day. Put a personal spin on it – “Have you seen this…”, “Check this out, I can’t believe what a deal!” Also, ask questions or poll your followers. It’s all about boosting follower engagement with what you post.

3.       Like other people’s posts- Liking, sharing or commenting on your followers’ posts is a great way to increase engagement on your social media. And I don’t know a soul who doesn’t like getting notifications that their posts have been liked or shared.

4.       Get creative- A picture of your clients who just bought a house is always good, but if you have customers who would be willing to “show” their excitement or have a little action in the picture then you could use the Boomerang feature on Instagram. This allows you to add a little fun and excitement to your post. And who doesn’t like a little added fun and excitement when you’re buying the biggest purchase of your life?

5.     Use Video and Facebook Live- If a picture is worth a thousand words, then a video or Facebook Live has the potential to be worth a million. Post that you’ll be doing a quick Q&A at a certain time, ask for any questions in that post. Let them know about your listings ahead of time so your audience can check them out. That way they can ask questions in the Q&A about those as well.

What are some other ways you have engaged with your audience on social media? We'd like to hear from you, so feel free to comment below and share what has worked for you to engage your audience.

Great Night at Fidelity National Title's Annual Bowling Night

Thank you to Fidelity National Title for all the support through the years! As always, they out did themselves with a great night of festivities. 

MJ Law's Christine Berk Honored by the Greater Orlando Asian American Bar for her Service as the 2016-17 Board President.

Miller Johnson Law is proud to announce that Christine Berk has served as the 2016-2017 President of the Greater Orlando Asian American Bar Association (GOAABA).

She was recognized on July 19th by GOAABA’s out-going Board during a Swearing-in Ceremony of the incoming 2017-2018 Board

Partner Barry B Johnson Named President of the Rotary Club of Altamonte Springs

MJ Law is proud to announce that Barry Johnson was recently installed as the President of the Rotary Club of Altamonte Springs. We, at Miller Johnson, are dedicated to serving the community and have been a longtime sponsor and partner of the Rotary. Thank you to Barry Johnson for stepping up and being an example not only to our firm but to our community as a whole!

Partner Named 2017 Rising Star by Super Lawyers Magazine

For the second consecutive year, Super Lawyers Magazine has named Barry B Johnson a Rising Star in Real Estate. Using a combination of nominations, peer review, and independent research, Mr. Johnson graded out in the top 2.5% of all attorneys in the category. We at Miller Johnson Law are proud of Mr. Johnson's accomplishments. 

http://digital.superlawyers.com/superlawyers/flslrs17?pg=100#pg100

Managing Partner Gary Miller delivers Key Note Speech at Seminole County Sheriff's Office Police Memorial

Gary Miller, joined by his family, participated in the Seminole County Sheriff's Office Police Memorial on May 18th. Gary delivered the Key Note speech to the dignitaries, officials, and officers in attendance. Gary's brother Matt was lost in the line of duty in December of 2011. As an honor to him and his fallen brethren, Gary is involved with many local organizations whose purpose is to help families of fallen or injured officer's. 

Partner Barry Johnson Named as 2016 Rising Star in Real Estate by SuperLawyers Magazine

Miller Johnson Law is pleased to announce that Partner Barry B. Johnson has been named a 2016 Rising Star in Real Estate Law  by SuperLawyers Magazine!

http://profiles.superlawyers.com/florida/orlando/lawyer/barry-b-johnson/3b466264-7252-4ebe-aa48-0b9599da676b.html

Realtor CE Seminar - September 1, 2016 at 9am

We are excited to announce that Miller Johnson Law is offering an important benefit to our Realtor colleagues! We are hosting a free course on Probate, Trusts, and Business Entities on September 1, 2016 at 9:00am, which provides 3 Realtor CE Credits and is FREE. Continental breakfast will also be served. If you are a Realtor and wish to attend, please RSVP to Renee@millerjohnsonlawgroup.com not later than 8/29. We look forward to seeing you there!

The Survey Says… New ALTA Land Survey Requirements

The 2016 ALTA/NSPS Minimum Standard Detail Requirements went into effect February 23, 2016. These requirements revise the 2011 ALTA/ACSM Land Title Survey requirements to address survey-related issues to facilitate the process for title companies, lenders, surveyors, and clients.

The 2016 ALTA/NSPS Minimum Standard Detail Requirements went into effect February 23, 2016 to update the 2011 ALTA/ACSM Land Title Survey requirements. The American Land Title Association (ALTA) 2016 survey requirements incorporate several significant changes of which real estate attorneys should be aware.

In a preliminary nominal change, the American Congress on Surveying and Mapping (ACSM) was succeeded by the National Society of Professional Surveyors (NSPS). Therefore, reference should be made to an "ALTA/NSPS Land Title Survey."

Overall, the updated requirements may increase transaction costs by encouraging the use of specialized consultants, such as zoning and environmental specialists. The updated requirements also relieve surveyors of certain obligations.

This Update highlights the key aspects of the updated survey requirements.

Records and Research

Section 4 provides a list of title-related documents that must be provided to the surveyor, including:

• The most recent title commitment or title evidence satisfactory to the title insurance company.

• Public records that impart constructive notice that benefit or burden the property, such as adjoiners, easements, servitudes, and covenants.

• Unrecorded documents affecting the property and survey, if desired by the client.

If the surveyor is not provided with these documents, the surveyor is only required to perform research to the extent required under the statutory or administrative requirements of the jurisdiction where the property is located. The surveyor and client may negotiate for the surveyor to perform additional research if necessary.

Fieldwork

Section 5 regarding fieldwork has been substantially revised. The updated requirements allow the surveyor to use its professional opinion to decide the appropriate degree of precision for measurements used in the survey based on the property's intended or existing use. Within the surveyor's fieldwork responsibilities, the updated requirements provide significant revisions concerning:

• Monuments.

• Lines of possession and improvements along boundaries.

• Buildings.

• Easements and servitudes.

• Cemeteries.

• Water features.

Table A

Table A contains optional survey responsibilities that may be negotiated between the surveyor and the client. The 2016 update contains substantial revisions to items in Table A, including:

• Zoning. The surveyor is now required to include zoning information in the survey only if the client provides the surveyor with a zoning report. This change encourages clients to hire zoning consultants and relieves the surveyor of an obligation to perform zoning-related research.

• Parking. Surveyors are only required to indicate parking spaces in the survey that are marked or clearly identifiable.

• Utility Easements. The surveyor is now required to locate utilities by making an 811 utility locating request. Surveyors must also indicate observed utility features.

• Wetlands. The revisions encourage clients to hire environmental consultants to mark the delineations of wetlands. The surveyor is no longer responsible to judge the dimensions of wetlands.

The full text of the 2016 ALTA/NSPS Survey Standards and a redline showing the 2016 revisions can be downloaded from the ALTA website.

IF YOU HAVE QUESTIONS ABOUT REAL ESTATE LAW OR WOULD LIKE TO HIRE US TO HANDLE A REAL ESTATE MATTER ON YOUR BEHALF, PLEASE CONTACT US TO SPEAK DIRECTLY WITH AN ATTORNEY.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Prior results do not guarantee a similar outcome.

Data Source: PLC

Florida Supreme Court Amends Foreclosure Forms

The Florida Supreme Court recently amended the Florida Rules of Civil Procedure and released new forms for use in residential mortgage foreclosure actions to expedite the foreclosure process in accordance with legislative initiatives.

On January 14, 2016, the Florida Supreme Court affirmed amendments to the Florida Rules of Civil Procedure and released new and updated forms for use in residential mortgage foreclosure actions following legislative efforts to expedite the foreclosure process.

The court's order coincides with legislative changes to sections 702.015 and 702.10 of the Florida Statutes, which provides pleading requirements for mortgage foreclosure complaints to ensure the:

• Plaintiff's initial status to commence a foreclosure.

• Facts supporting the plaintiff's status to institute a foreclosure.

• Availability of documents needed for the prosecution of the foreclosure.

Background

The Civil Procedure Rules Committee filed a report proposing amendments to the Florida Rules of Civil Procedure in response to legislative actions that created section 702.015 of the Florida Statutes. The committee proposed changes to existing forms and created new forms to bring the foreclosure process into conformity with the new law.

On December 11, 2014, the Florida Supreme Court issued an opinion in favor of adopting the proposals, but provided a 60 day comment period. Many comments were received, leading to responses from the committee that contained further amendments to the rules and forms.

Rule Amendments

The amendments under Rule 1.115 govern pleading requirements in residential foreclosure actions where the plaintiff:

• Is the holder of the original promissory note secured by the mortgage.

• Delegates authority to institute an action on behalf of another who is entitled to enforce the note.

• Seeks to enforce a lost, destroyed, or stolen note.

The rule amendments clarify that the mortgage or lien being foreclosed must be secured by a promissory note. Also, the rule changes reinforce the need for adequate protection if the note is lost, destroyed, or stolen.

Form Amendments

The amended forms include:

• Form 1.944(a). This form is used when the location of the original note is known. The form is amended to address delegated authority to foreclose on behalf of a non-holder of the note. The amendments require that the plaintiff:

  • allege specific facts that entitle the non-holder to enforce the note; and

  • specify the documents that give the plaintiff the authority to act on behalf of the non-holder.

• Form 1.944(b). This form is used in mortgage foreclosure actions where the location of the original note is unknown (whether lost, destroyed, or stolen). The form provides options that the plaintiff must select depending how the plaintiff obtained authority to foreclose. The amendments create two new options for when the plaintiff is delegated authority by a person who was entitled to foreclose when the note was lost and when the plaintiff is delegated authority by a person or entity that directly or indirectly acquired ownership of the note from a person entitled to foreclose when the loss of possession of the note occurred. The amendments require the plaintiff to:

  • allege specific facts why it was entitled to enforce the note when the note was lost;

  • state facts why it was delegated authority to foreclose by the holder of the original note who lost the note; and

  • attach documents evidencing the delegation of authority to foreclose.

• Form 1.944(c). This is an order to show cause for entry of final judgment of foreclosure. The amendment removes the notification about homestead exemptions for service by publication.

• Form 1.944(d). This is an order to show cause to be issued following the filing of the motion for an order to show cause. The amendment removes the finding about homestead exemptions.

Practical Implications

Real estate foreclosure counsel practicing in Florida should be aware of the amendments and ensure that their forms are updated in accordance with the court's opinion. The full text of the amended forms are attached to the court's opinion.

IF YOU HAVE QUESTIONS ABOUT FORECLOSURE LAW OR WOULD LIKE TO HIRE US TO HANDLE A FORECLOSURE MATTER ON YOUR BEHALF, PLEASE CONTACT US TO SPEAK DIRECTLY WITH AN ATTORNEY.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Prior results do not guarantee a similar outcome.

Data Source: PLC

IRS Announces the 2016 Estate and Gift Tax Limits

For 2016, the estate and gift tax exemption is $5.45 million per individual, up from $5.43 million in 2015. In short, individuals can leave $5.45 million to heirs and pay no federal estate or gift tax.

Here are some of the main IRS announcement highlights for 2016:

• The unlimited marital deduction allows clients to leave all or part of their assets to their surviving spouse free of federal estate tax. But to use the late spouse’s unused exemption – a move called “portability”—clients must elect it on the estate tax return of the first spouse to die, even when no tax is due.
• The annual gift tax exclusion amount is $14,000 for 2016, the same as 2015 and 2014. Individual clients can give away $14,000 to as many individuals as they like. The annual exclusion gifts don’t count towards the lifetime gift exemption.
• For 2016, an individual that is 23 years old and under pays no tax on the first $1,050 of unearned income and then 10 percent rate on the next $1,050, the same as in 2015.
• Individuals can make gifts for medical, dental, and tuition expenses for as many relatives (or friends) as they like so long as they pay the provider directly. These gifts don’t count towards any of the limits.

For more information in an easily readable format, Forbes presents a good summary here.

For a more in-depth look, the official IRS release document can be accessed here.

Trademark Searching and Clearance: Don't Endanger Your Brand by Making These Six Major Mistakes

Trademark searching and clearance is the process of gathering and assessing information to evaluate a proposed trademark’s availability and protectability. It is also a critical part of business risk management. Failing to search, or not searching properly, can have drastic consequences, including having to rebrand or being sued for trademark infringement.

A successful infringement claim can lead to an injunction that stops a new product launch or advertising campaign in its tracks, and can result in significant money damages, including treble damages if willful infringement is found. Even if a company ultimately prevails in the litigation, the defense costs can be enormous, including attorneys’ fees, expert fees and survey costs. The time spent by business personnel in depositions and other discovery matters can also be a drain on productivity.

While proper trademark searching and clearance can be complex and sophisticated, certain common mistakes can be easily avoided.

MISTAKE #1: NOT CONSULTING A TRADEMARK ATTORNEY

The trademark search process is complicated and lined with many potential pitfalls. A company can avoid many of these mistakes by consulting a trademark attorney experienced in searching and clearance. Mistakes are more likely when searching and clearance is conducted by non-trademark lawyers or by business personnel. A modest amount of money invested up front to retain an experienced trademark attorney can help avoid significant costs, including from infringement and related claims.

MISTAKE #2: NOT CONDUCTING A PROPER SEARCH

Many companies and individuals face trademark infringement claims litigation that could have been avoided through a small initial expenditure to conduct a trademark search before launching their new business, product or service. Proper searching can identify third-party marks that pose potential risks, allowing the company to either:

• Select a different name.
• Pursue further clearance steps, for example seeking consent from the owner of conflicting rights.

Proper trademark searching may also help defend against allegations of willful infringement while, conversely, failing to search may be used as evidence of willfulness.

Although the nature and extent of searching varies depending on the circumstances, proper trademark searching typically involves:

• Preliminary searches
• Full Trademark Searches

PRELIMINARY SEARCHES

A preliminary search typically involves searching the US Patent and Trademark Office (USPTO) database and the internet for direct conflicts. These are are typically existing federal applications or registrations for, or common law uses of, identical marks for identical or closely related products or services. Identifying a direct conflict often means that the proposed mark is:

• Not available.
• Available only if further clearance steps are undertaken (for example, a purchase of conflicting rights), which may not be realistic depending on time and budget constraints.

While useful for identifying third-party marks that are direct conflicts with a proposed mark, a USPTO database search is generally insufficient to clear a new mark for use or registration because of its limitations, including that:

• The USPTO database only contains federal trademark applications and registrations.
• The USPTO database does not cover common law marks.
• Depending on how it is structured, a USPTO search may not disclose applications or registrations for marks that, while not identical to the proposed trademark, may be sufficiently similar to cause consumer confusion.

While an internet search may aid in identifying direct conflicts that may not be disclosed by a USPTO database search, its scope is limited and generally not sufficient for clearing a mark.

FULL TRADEMARK SEARCHES

Given the limitations of preliminary searches, a full trademark search conducted by a commercial trademark search vendor is generally necessary for reliably clearing a new mark or new use of an existing mark.

A full search typically includes a search of:

• USPTO application and registration records.
• State trademark registrations.
• Common law and company name databases.
• Domain name databases.
• Websites.

The cost of a full search varies depending on many factors including the desired turnaround time, but typically ranges from $800 to $1,500, plus attorney’s fees for reviewing the results and drafting an opinion letter. The cost, however, is minimal when compared to the potential costs associated with defending against a trademark infringement or unfair competition suit.

MISTAKE #3: IGNORING CANCELLED REGISTRATIONS AND ABANDONED APPLICATIONS

Another common mistake is assuming that trademarks that are the subject of cancelled registrations or abandoned applications do not pose an appreciable risk. Even if a registration is cancelled or an application is abandoned, the trademark may still be in use and the owner may still have common law rights in the mark. Ignoring those registrations and applications can be a very costly mistake if the mark is in use, or if the use stoppage is temporary so that the trademark itself has not been legally abandoned.

Trademark registrations may be cancelled and applications abandoned for many reasons unrelated to the mark’s use status, including:

• Docketing failures.
• A lack of resources for mark maintenance.
• Failure to overcome USPTO office actions.

If a canceled registration or abandoned application is for a mark similar to the proposed mark and is for related goods or services, it is typically advisable to conduct a further investigation to determine:

• Whether the mark is in use.
• If the mark is not in use:
  • when the use stopped; and
  • whether there are any plans to resume use.

Companies should pay particular attention to abandoned use-based applications and cancelled use-based registrations since marks covered by these were in use at some point. Abandoned intent-to-use applications may present a lower risk, although the applicant still may have started using the mark.

MISTAKE #4: FAILING TO CONDUCT AN INVESTIGATION

Even a full trademark search may not disclose any details about the actual use of a trademark in the marketplace. Determining the nature and extent of a potentially conflicting mark’s use in the marketplace is essential for assessing likelihood of confusion and the level of risk. Likelihood of confusion is the touchstone of trademark infringement and unfair competition. The various federal circuit courts of appeal have adopted multi-factor tests for assessing likelihood of confusion. These tests vary by federal circuit but generally examine similar factors.

To perform a thorough analysis of these factors as applied to a potentially problematic third-party trademark disclosed in a search, a company must investigate the nature and extent of the third-party trademark’s use. Generally, it is critical to assess:

• How long the third-party trademark has been in use.
• The commercial strength of the trademark.
• The goods or services for which the trademark is used.
• The trade channels for the goods or services.
• The price points of the goods or services.
• The types of consumers that purchase the goods or services.
• The size of the third party and the extent of their resources.
• The third-party’s history of trademark enforcement.

The answers to these questions provide information for conducting an informed likelihood of confusion and risk analysis, as well as developing a clearance strategy. A clearance strategy may include:

• Seeking to purchase the conflicting mark.
• Pursuing a consent, coexistence agreement or license from the owner of the conflicting mark.
• Seeking to cancel the registration for a conflicting mark that is no longer in use on the basis of abandonment.

MISTAKE #5: ASSUMING THE “LITTLE GUY” CAN BE IGNORED

Another common mistake is ignoring potentially conflicting marks owned by small companies or individuals. Small companies and individuals may be particularly aggressive in defending their rights as the mark may be critical to their business. A small trademark owner can sometimes successfully claim reverse confusion. Reverse confusion occurs when a larger, more powerful junior user saturates the market and causes consumers to believe, mistakenly, that a smaller, but senior, user’s goods or services originate with or are connected with the junior user (see, for example, Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30 F.3d 466, 474 (3d Cir. 1994)).

An injunction, or even the threat of an injunction, can cause substantial harm to a company that is about to launch a new product or service. A small trademark owner may be able to exert tremendous leverage merely by filing a lawsuit seeking injunctive relief. If the launch is particularly important, that company may be willing to pay a small trademark owner a significant payment to retain the ability to use the mark. If a company addresses a potentially conflicting mark owned by a small trademark owner during the trademark search and clearance process, it may be able to negotiate a small (or no) monetary payment because the small party has less leverage than if launch was already underway. Even if an arrangement cannot be reached , the costs of switching to a different mark are substantially less at an early stage than after a product or service launch, at which time:

• Inventory and other materials may need to be destroyed.
• Customer goodwill may be damaged by a name change.

MISTAKE #6: NOT SEARCHING A SEEMINGLY DESCRIPTIVE TERM

A non-trademark specialist may assume that a term with perceived descriptive qualities does not warrant a trademark search because:

• No third parties could own trademark rights in the term.
• The company would have a fair use defense to any third-party claim.

A descriptive term generally is not entitled to trademark protection because it cannot identify and distinguish a single source of origin. However, it is a mistake to assume that it is not necessary to search perceived descriptive terms. This is because:

• Secondary meaning may exist. A descriptive term may be protectable if it has acquired distinctiveness (secondary meaning) through use and promotion over time.
• Some subjectivity is involved in determining whether a mark is descriptive. Therefore the USPTO may have granted a registration on the Principal Register for a seemingly descriptive mark, affording it a presumption of validity. These marks may become incontestable if certain requirements are met.

The well-known case of Sands, Taylor & Wood v. Quaker Oats Co. shows the risks of not searching or properly clearing a seemingly descriptive mark (978 F.2d 947 (7th Cir. 1992)). The case involved a lawsuit by a small company that owned trademark registrations for the mark THIRST-AID against Quaker Oats after Quaker adopted the slogan “GATORADE IS THIRST AID” in an advertising campaign. Before the campaign was launched, it was reviewed by Quaker’s in-house counsel who concluded that the use of “Thirst Aid” was descriptive and a search was not required. After the launch of the campaign and Quaker’s receipt of an objection by the owner of THIRST-AID, Quaker’s outside counsel advised that Quaker’s proposed use was not infringing because Quaker was using “Thirst Aid” descriptively rather than as a trademark. Quaker continued with the ad campaign and ended up embroiled in a lengthy and expensive trademark litigation.

If you have questions about trademark law or would like to learn more about properly registering and protecting your new or existing brand, please contact our office.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Prior results do not guarantee a similar outcome.

Data Source: PLC

Photo Source: "USPTO@Alexandria" by cytech is licensed under CC BY 2.0