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Thursday, February 28, 2013

March 6th Presentation on Trademark Best Practices


Scott Gerien, head of Dickenson, Peatman & Fogarty's Intellectual Property Department, will be appearing on a panel with Judith Schvimmer, Vice President and Legal Counsel at Jackson Family Enterprises, on  "Trademark Protection" on March 6 at 12:00 PST.  The presentation will be a TeleBriefing sponsored by Law Seminars International 

In this 90-minute TeleBriefing, the panel of speakers will address current best practices for trademark selection, use, maintenance and protection. This is a must-attend TeleBriefing for in-house counsel, outside general counsel and corporate executives who are required to handle trademark related issues from time to time.  Given the experience of the panel, the presentation will also address trademark issues related to the wine industry.

The link to the online brochure can be found here: http://www.lawseminars.com/seminars/13TRADETB.php

LSI will offer a discount of $25 off of the regular registration rate to LexVini readers.  Please contact LSI with any questions (206) 567-4490.

Tuesday, February 26, 2013

Alcohol Beverage Licenses as Assets in Debt Collection

A recent US Bankruptcy Court case from the Middle District of Florida highlights the pitfalls of attempting to value certain assets, including a bar and liquor license, without expert assistance (Zaslavsky v. Smith (In re Smith) January 31, 2013, 2013 Bankr. LEXIS 434). In this matter, plaintiff creditor brought an adversary proceeding against defendant bankruptcy debtor alleging intentional concealment of assets based on debtor’s self-estimated value of his interest in a bar, the real property it was located on and its liquor license, as being “zero” in what appears to have been a pro per bankruptcy filing (i.e., the debtor representing himself without a lawyer). 

Plaintiff creditor had sold his interest in the bar, the real property it was located on and its liquor license to the debtor and carried back a note, which was alleged to have been secured by the real property and the liquor license. Debtor’s self-valuation of the bar, the real property and liquor license improperly deducted the value of various liens and other encumbrances, which plaintiff claimed established fraudulent intent barring discharge. The Bankruptcy Court disagreed, finding that while debtor’s self-valuation was incorrect, it resulted from an honest mistake and thus fraudulent intent was not present. The debtor’s discharge was ultimately approved, likely after amended bankruptcy schedules were filed. Apparently, given the lack of bankruptcy court objection, a liquor license can properly be used as collateral for a secured transaction in Florida, as opposed to California where such use is statutorily prohibited.

For further assistance or questions on debt collection matters contact David Balter at dbalter@dpf-law.com 

Sunday, February 24, 2013

Vineyard Purchases: Avoid Attorney Fees, Get a Survey


All too often purchasers of real property make assumptions about the extent of land included in their purchase, relying on visible landmarks such as tree lines and existing fences.  Despite the opportunity, and many times admonitions, to engage a land surveyor prior to the consummation of a purchase, prospective buyers often times wait until after the fact, or not at all, to conduct a survey.  In doing so, the buyers may be setting themselves up for serious consequences that translate into large dollar expenditures.

Let’s assume that you’ve purchased land on which you intend to plant a vineyard.  Let’s further assume that there is an existing fence that you were either told or presumed was the common boundary between you and your adjacent neighbor.  Now let’s go one step further and assume that you have gone to the time, trouble and expense of assessing the soil, contracting for vines, installing the trellising and irrigation and planting the vines. All is proceeding along until the adjacent land is sold, the new neighbor has a survey performed, and several rows of your maturing vines are now indisputably located on your neighbor’s property.  What recourse do you have?  California law provides for use and ownership interests in the lands of others provided that certain conditions are satisfied. 

You may claim a possessory (versus ownership) right if you have used the land in question openly and notoriously, under claim of right (without permission), for five continuous uninterrupted years, hostilely (figuratively speaking) to the true owner of the property in question.  If you personally have not used the land in question for five continuous years, you may be able to “tack” your predecessor’s time of possession onto your actual possession to satisfy the five-year time frame.  Assuming you can unequivocally establish these five elements, you may claim a prescriptive easement in the property; a right to use the property distinct from ownership of it.

If you can establish one more element, i.e., that you paid real property taxes on the land in question for five continuous years, you may be able to claim exclusive possession, i.e., ownership, of the property under the theory of adverse possession.  You have the burden of proving that you not only used the property openly and notoriously, under claim of right, for five continuous uninterrupted years, hostilely to the true owner, but also that you paid the assessed taxes on the property.

Conclusively establishing your claim of use under a prescriptive easement or ownership under adverse possession often times requires a lawsuit to quiet title, which can be an expensive proposition. 

When buying land for a vineyard or even planting a vineyard on land you believe have owned for a while, engaging a professional land surveyor to confirm the exact boundary line may be the proverbial ounce of prevention needed to avoid costly issues in the future.

For more information on real estate issues contact Delphine Adams at dadams@dpf-law.com  

Thursday, February 21, 2013

Wine Industry Lawsuits: How to Avoid Them


No one expects to have to go to court when they start a business deal or venture, or when they plant a vineyard or purchase real estate, but in today’s world no industry is free from lawsuits, particularly not the wine industry. Disputes over grape purchase agreements (duration, termination, quality standards, etc.), vineyard development agreements (quality of vines, planting and maintenance, and sufficiency of site evaluation and preparation, etc.), wine storage agreements (condition of wine, losses, damage to wine, etc.), custom crush agreements (compensation, quality control, etc.), real property matters (title, ownership, boundaries, easements, etc.), and even employment relationships (statutory requirements, executive agreements, workplace safety, etc.) can rise to the level of a lawsuit involving the smallest or largest members of the wine community and costing from tens of thousands to hundreds of thousands of dollars. All too often, however, it is not until the fighting begins that the parties and their attorneys look back and see where the dispute could have been avoided or at least how the parties could have better protected themselves before the dispute arose.

Simple measures are usually the most effective. For example, many people don’t review their written agreements until a dispute arises, and then they often find that the paperwork does not read like they recalled it read, or they find that the agreement is ambiguous on a matter that was not an issue until circumstances changed. Instead of shelving your paperwork once it’s signed, there is tremendous value in periodically reviewing written agreements to confirm that they match your understanding of a deal, as well as to confirm that the agreement is being correctly followed. Such a review can, but need not, involve the assistance of counsel. At the very least, such reviews help keep everyone on track while they are still getting along, and when things are not on track, the parties can usually make mid-course corrections in the paperwork or their conduct (or both) without much debate or fanfare because there is no dispute pending. Once a dispute arises, however, such corrective measures are more difficult to achieve.

It is even more important to take such a proactive approach in cases that do not involve written agreements because differences in recollection often cloud the dispute resolution process once a legal battle has begun.

Likewise, where property issues are involved, it is better to find out about your state of title before you are in a dispute with a neighbor. Such early knowledge not only presents the opportunity to find a solution with your neighbor while everyone still gets along (or at least has not been antagonized by the existence of dispute), but it also allows you to get properly informed as to what you should or should not do to protect your property rights in the absence of a negotiated solution since many of the legal rules involved with property disputes are counter-intuitive to non attorneys.

In short, sometimes you need to look back to move forward in the safest way.

For more information or assistance on litigation matters, and how to prevent them, contact Paul Carey at pcarey@dpf-law.com