A Closer Look at OVI in Ohio

The more commonly know offense of driving under the influence or DUI is known as Operating a Vehicle Under the Influence or OVI in the state of Ohio. According to Ohio Revised Code § 4511.19, operating a vehicle under the influence in Ohio means that an individual was driving or in actual physical possession of a vehicle, while they were at or above the legal limit in Ohio for blood alcohol concentration (BAC).

Many individuals might not know that there are essential elements that must be shown and proved in order for a person to be convicted of an OVI in Ohio.

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One important element that must be determined is if the individual was driving a vehicle while intoxicated or that they were in physical control of a vehicle while intoxicated.

A Closer Look at OVI in Ohio

Under Ohio law, there are factors that can determine if a person had physical control of a vehicle:

1) The person was in the driver's seat
2) The person was in possession of the ignition key and
3) The person was either under the influence of alcohol or they tested over the legal limit.

Another important factor used to determine if an individual is guilty of an OVI offense is if they had a blood alcohol concentration that was above the legal limit. The legal limit in Ohio is.08 percent, however an individual can still be charged with OVI in Ohio even if they are not impaired or above the legal limit.

The penalty for a first OVI offense in Ohio is usually a misdemeanor of a first degree, which can be punishable by jail time, a fine, driver's license suspension, a Driver's Intervention Program or an ignition interlock device.

What is a Physical Control Offense?

Under Ohio Revised Code § 4511.194, an individual can be charged with Physical Control. This offense is similar to an OVI charge in Ohio in that both offenses involve an individual who is in a vehicle while they are under the influence of alcohol or a controlled substance. A good example to illustrate this statute is if an individual chooses to "sleep it off" in their car after consuming alcohol or drugs instead of driving.

According to this statute, a person only has to have the keys on them or within their reach to be charged with the offense of physical control. Physical control is considered a lesser offense than an OVI even though they are both first degree misdemeanor crimes.

If you find yourself facing an OVI charge in Ohio you should contact an experienced criminal defense attorney who is knowledgeable in Ohio law. Your criminal defense attorney will make every effort to achieve the best possible outcome in your case. They will also guide you through each court appearance from the first to the last and make sure that your needs are always put first.

A Closer Look at OVI in Ohio

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DUI Records and Pre-Employment Background Checks

If you've recently been arrested and/or convicted of a DUI or drunk driving offense there are many things to consider before actually disclosing your DUI on a job application. First, if you are eligible to clear the DUI record (immediately or in the near future) it might make more sense to explore those avenues before you apply for a job that you really want.

9 times out of 10 most every employer will do a pre-employment background check on you and will uncover the DUI offense which most likely will cause them not to hire you. Most pre-employment background checks are conducted by 3rd party HR companies that are contracted by your potential employer specifically to do background checks. A lot of the big companies use the same outsourced HR company to do their checks so if you get flagged within their system that could in effect ruin your chances of ever getting hired from any company who uses them to perform pre-employment background checks.

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So it's definitely something you want to think about and clear up BEFORE you apply and agree to a background check.

DUI Records and Pre-Employment Background Checks

But if you take the steps to clear or expunge the DUI record prior to applying for the job there is a good chance that they will never find out about it. So, by spending a little bit of time and educating yourself on what you need to do to take care of your record could pay off big time.
Not every state allows the clearing or expunging of DUI records but even in those states that won't clear your record there are remedies to minimize the damage by keeping it from showing up on background checks. You can get more information at www.duiprocess.com

DUI Records and Pre-Employment Background Checks

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The Good Credit Foreclosure Crisis

Two or three years ago, all anyone could talk about was the housing market. It was booming. Builders were building, buyers were buying, and lenders were lending. Everybody was making money hand over fist, and everybody loved it.

It didn't last. The market started to lag in 2006 and has only gotten worse in the first half of 2007. Some experts maintain that the market is just returning to normal after a strong surge and that there's nothing to worry about. Others, believing that the housing market is an indicator of the future of the rest of the market, are beginning to utter the unutterable word that starts with r: recession.

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One thing is clear. This is not just a slight dip in the housing market. When slight dips occur, contractors are the first to be hurt, then the lenders, and buyers sometimes suffer a little bit. This time, current owners are getting into the mix. Foreclosures are at an all-time high, and it seems to be affecting everyone in the market. Whether you're an owner with bad credit, an investor, or an owner with good credit, the national figures have you at risk of foreclosure. Nationally, there is currently one foreclosure for every 134 households, which represents an increase of over 55% from the same time last year.

The Good Credit Foreclosure Crisis

It isn't surprising or particularly unnerving that borrowers with bad credit are late on their payments or have already gone to foreclosure. They are, of course, the first borrowers who can be expected to have difficulties. Bad credit borrowers are the perfect prey for predatory lenders using aggressive lending tactics. They hooked borrowers looking to get in on the housing boom a few years ago when those same borrowers never had a chance at a mortgage earlier in their lives. During the housing boom they were able to borrow at subprime rates and the lenders got rich.

Although subprime rates and strong-arm tactics have been around for decades, the extreme slowdown in the housing market seems to have increasingly magnified the problem of late. Legislators are taking action to cut down on the practice. Congresswoman Deborah Price (R-Columbus, Ohio) has cosponsored a bill to help protect homebuyers from fraud in the mortgage market. She says that "Ohio's foreclosure rate is now three times the national average, one in six subprime loans is delinquent, and the problem is expected to worsen." Ohio is definitely at the center of the housing crisis, but states from coast to coast and in all different types of economies are suffering as well.

Real estate investors have greatly contributed to the current situation. Although this is to be expected during difficulties in housing markets, hundreds of thousands of homes and condos now stand empty because these investors got caught and were unable to flip their newly acquired properties. These investors bought property during the tail end of the housing boom at prices and rates that were much higher than in recent past. As prices eased, and in some areas began to fall, these investors are now forced to sell property for less than they bought it, causing them to lose money and some are defaulting on their mortgage payments because they can no longer afford to make them.

What really has a lot of industry experts nervous is the number of home owners with good credit who are foreclosing on their properties. At the epicenter of the housing industry's downturn is Countrywide Financial, one of the largest lenders in the country, who on July 24th, 2007, issued some of the worst news for the housing market in recent memory. While they confirmed the bad news that subprime borrowers were delinquent at record rates, they also surprised many in the financial sector when they announced that 5.4% of their loans to borrowers with good credit were past due. Countrywide was forced to reduce the value of their loans and assets by almost billion. Their stock plummeted, dropping almost 10% in a single day.

Countrywide's announcement has a lot of people scrambling. The words of Chairman and CEO Angelo Mozillo may be the most troubling. On the day of the announcement he said that home sale prices were dropping "almost like never before, with the exception of the Great Depression." Investors shook their heads as they knew any mention of the Great Depression from a high-ranking CEO of a financial company was going to send the Dow plummeting by triple digits.

While many in the market are scratching their heads and asking why borrowers with good credit are defaulting on their payments, Ron Borg, CEO of Mortgage123.com says the reasons are simple. "There are 3 simple reasons for the tremendous increase in defaults on "good credit" mortgages", says Mr. Borg. "One reason has been the popularity of the Pay Option ARM. While the loan itself is not necessarily a bad loan, three particular features of the loan greatly contribute to defaults on this type of loan".

Mr. Borg continues, "See, the borrower's interest rate adjusts monthly and the rate is determined by adding a "margin" to a specified "index". The "index" is typically a short term bond such as the rate on the U.S. 1 year treasury-bill or other index such as the London inter-bank offered rate, which also based on short term interest rates. Over the past year and a half, short term interest rates have risen approximately 4%! That's a tremendous increase for most people.

Mr. Borg says that the second factor affecting Option ARM defaults is that mortgage lenders and brokers compensation is directly tied to the margin. The margin is the amount of interest that is added to the index which in turn, determines the borrower's actual interest rate. "Most borrowers have absolutely no idea that margins are negotiable" Mr. Borg states. He says that "Margins can vary from 2 ½% to as high as 6 ½%. Most indexes today hover around 5%, so you can easily see why so many borrowers are hurting."

The third feature of the loan is that it is improperly marketed, says Ron Borg. "Companies advertise that it comes with a very low rate, under 2%. This is completely misleading consumers", he says. "The fact is, that "interest rate" lasts for one whole month. After that it becomes nothing more than a calculation to figure a borrower's minimum monthly payment. Unfortunately, that minimum monthly payment isn't enough to even pay the monthly interest on the loan and negative amortization occurs." he says. That is when the balance of the loan actually goes up instead of down. "While this may be a valid short term strategy, thousands of borrowers got sucked in because of that low payment without regard to the consequences. Now they're hurting.

Another part of the foreclosure story is the proliferation of mortgage lead companies.. These companies created websites, spent millions of dollars to drive Internet users to their sites, promised better rates because lenders would compete for their business. "Consumers really don't understand how these companies operate", says Mr. Borg. He says that lenders pay huge advertising dollars to be part of these website companies.

"They receive so many leads from these lead companies, and they pay so much for those leads, that they cannot afford to hire experienced mortgage loan officers. Most hire sales or customer reps rather than actual loan officers. Some companies even outsource these jobs overseas!" he said. These reps are there to sell mortgages, not to provide any level of advice or consultation. Mr. Borg continued. They just want to sell loans. They don't worry about building a client base that can refer more business to them because each and every day they get new batch of leads, provided by the lead generating website company. Experienced loan officers work much differently - they provide consultation and a true desire to provide the best financing package for their borrower's particular needs."

While a large portion of borrowers that apply through lead generation websites have sub-prime credit, many are not borrowing on subprime loans and for the most part they don't have other properties to pay off or lose money on. Common sense would dictate that an individual with good credit would know to stay away from unscrupulous lenders. However, many borrowers with good credit have been lured by the promises of super low interest rates and the competitive environment offered by lead generators when they were looking for a mortgage during the housing boom of the past few years.

The nation had never before seen such a great housing boom in the era of the internet. The internet did not create any new lenders, but it did create a plethora of new lead generators. These are basically websites that get paid by lenders to find possible borrowers and direct them to the lenders. However, the tactics they use and the way these lead generators market themselves may have had an adverse effect even on borrowers with good credit, contributing to the current poor housing market.

LendingTree.com is a perfect example. Potential borrowers go to their website, provide their personal financial information and then are contacted by a variety of lenders. Their slogan is that "When Banks Compete, You Win." One glaring problem with this business model is that your online application is forwarded to multiple lenders within their network and then each lender makes a credit inquiry on the borrowers", says Mr. Borg.

The problem is that multiple credit inquiries in a short period of time hurt the borrower's credit score. This can sometimes result in less optimal mortgage rates, especially if a quick decision is not made. Furthermore, such sites can be very secretive about what they're doing. They claim that multiple credit inquiries is not a problem and simply push the borrower to make a decision, good or bad; after all, they get paid when customers choose any lender from their site.

Recently, some companies are looking to provide borrowers with similar services as these lead generators but without the risk. Mortgage123.com is a good example. They offer multiple lender quotes but without the multiple credit inquiries. Instead of submitting credit inquiries to the lenders, they pull the borrower's credit score themselves and manually calculate each rate quote. The borrower gets more accurate quotes and their credit only gets accessed once.

The third reason for the rising foreclosure rate, of course, is the market itself. Mr. Borg had this to say - "While all the politicians are now grandstanding about predatory lending and looking to regulate the problem away, the fact is, if real estate continued to appreciate, most of the problems of today simply wouldn't exist. But when you combine increasing mortgage balances with declining home values, well, let just say, you're going to see some problems."

The Good Credit Foreclosure Crisis

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The Eviction Process

Obviously, evicting a tenant is not a thrilling part of real estate investing for the tenant or the landlord. What follows is a description of the eviction process itself (especially as it pertains to what can be expected in Ohio), peppered with some of my personal comments with regards to how I typically handle evictions.

Generally, if I've not received rent monies from a tenant by the 8th or 9th of the month, I call the tenant. My leases stipulate that the tenant has a grace period until the 5th of the month to mail rent monies without being charged any type of late fee. As long as the envelope is postmarked by the 5th - no late fee. Allowing 3 or 4 days (from the 5th) for a tenant's payment to arrive is pretty liberal and plenty of time to allow for the monies to be received from cross-town mail.

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If upon a call to the tenant I believe we're going to have problems, I immediately deliver a 3-day notice to the property. A copy of the notice is made before delivering. The 3-day notice is posted (taped) on the front door of the property if the tenant or other occupant is not there when it's delivered. Any tenant that reaches this point (the starting of the eviction process), is advised that the 3-day notice is simply being posted as a way to protect my interests in the event the tenant doesn't make good on the outstanding monies due.

The Eviction Process

Attaching a 3-day notice to the tenant's door does not negatively affect the tenant's public record. It's not until the 3-day is formally filed that it becomes public record. The landlord cannot file for eviction until 3 business days have passed from the point the 3 day-notice was placed on the property. Once the 3 business days are up, the landlord can begin the formal eviction process. How does this start? You will take your paperwork, including a copy of the 3-day notice, and file to have an eviction hearing. I use an attorney to process all of my evictions. Specifically, one specializing in handling evictions. I personally prefer using an attorney that will try to remedy the situation with the tenant before the case is even heard. You don't have to use an attorney - you can do alot of this yourself and save a few bucks, but I recommend you use one. If you've never been to your local court system to witness eviction hearings, I highly recommend it. You'll quickly get a flavor of what takes place during these hearings and will know what to expect ahead of time should you ever get to the point of processing an eviction on one of your own properties.

You can expect it take approximately two weeks before your hearing is scheduled. It's important to note that I always keep the communication line open with the tenant through this whole process. I think this is extremely important. I want the tenant to know that I don't like going down this path just as much as the tenant doesn't. It's not my goal just to boot a tenant out of the property. In fact, I try very hard to work out payment arrangements or even payment assistance resources with the tenant in an effort to get him or her back up on their feet. Yes it may take a little hand-holding and some of your extra time, but I'd say eight out of ten tenants going through this extra hand-holding will appreciate your trying to help and will ultimately clear their overdue balances with you. You walk a very fine line here with the tenant in that he or she may also be taking advantage of you. It can be a tough call. At times it can simply come down to relying on your gut feeling with the situation.

If judgement is taken (in your favor) at the hearing, the judge will give you permission to "red tag" the door. A red tag is just that - it's bright red and has marked on it the date that possessions will be moved out of the property if the tenant has not vacated. The tenant has five days from tagging to get out of the property. It will usually take 2-3 business days after the court hearing for this tag to get placed on the front door of your property. Again, I keep the tenant abreast of my intentions during this process. You as the landlord call the shots with regards to whether or not any possible set-out occurs. I mention to the tenant that I still do not desire to set property out at the curb, and if payment arrangements can be made, the set-out can be averted. You will again have to make the call here. Do you want to accept only partial payment for what is owed and try to arrange a plan for payment on the extra monies? Or do you feel the tenant is just not going to make it, and in this instance, follow through with the eviction process?

The final step is the dreaded set-out. It's extremely rare that I ever have to get to this point. If it comes this far, frankly the tenant deserves it. I've given them every opportunity within reason to try and remedy the situation or move out on their own accord. If the tenant has not moved out by the date stipulated on the red tag, you as the landlord have the right to order a set-out with the bailiff. Again, an attorney that specializes in evictions really helps here. In Columbus, Ohio, you only have a two hour window Monday-Friday to request and schedule a set-out. Additionally, the set-out must be scheduled within ten days following the red tag, or you have to order a supplemental red tag (more money).

When the set-out is requested (it's generally a day and time agreed upon by you and the bailiff), you will be expected to have at least four people dedicated to setting furniture and belongings out of the house. You will also be required to have trash bags and boxes to pack items before removing them from the house. Good maintenance workers will be handy to have when you get to this point.

As you can see, evictions can be a rather drawn-out process that generally take a good three to four weeks to run their route. This is why I believe it's very crucial to always maintain good communication lines with your tenant and try and be as professional as possible in handling the situation. It will be frustrating!...but try and keep an open mind into ways you can help your tenant get through this. A good positive attitude can go a long way to making this process less stressful to both you and the tenant!

The Eviction Process

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Workers' Compensation - Understanding The Terminology

Understanding Temporary Total Disability, (And Arcane Concepts Like "Full Weekly Wage," "Average Weekly Wage," "Statewide Average Weekly Wage" And "Maximum Medical Improvement").

Note: This article is about Ohio law. Other states may differ. These general concepts may not apply to your individual situation.

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Temporary Total Disability (TTD)

Workers' Compensation - Understanding The Terminology

Temporary Total Disability (TTD) is paid as compensation for lost earnings during the period of time the work injury prevents the claimant from returning to the position of employment the claimant held at the time of injury. TTD is paid for the entire period off work if the claimant misses 15 or more days of work; for days 8 through 14 if there are 15 or less days of lost time; and no TTD payment if the claimant misses 7 days or less.

For the first 12 weeks of lost time, TTD is paid at the rate of 72% of the full weekly wage (FWW), and for every week of benefits after the first 12 weeks, 2/3 of the average weekly wage (AWW). If the claimant's FWW and AWW exceed the statewide average weekly wage (SAWW) TTD payments are limited to the SAWW. As a minimum TTD benefit, if the FWW and AWW are less than 1/3 of the SAWW, the claimant receives the full FWW and/or full AWW (unreduced by 72% and 2/3 respectively). (Please see below for definitions of FWW, AWW and SAWW).

TTD generally terminates when the claimant returns to work, is offered a job within the physical restrictions or when the claimant reaches maximum medical improvement (MMI). To receive TTD, the claimants must be under the care of a physician who certifies (most often using Bureau form C-84) that the claimant cannot return to employment due to the allowed condition(s) in the claim, and the claimant must not be working.

Maximum Medical Improvement (MMI) is defined by the Ohio Administrative Code as "a treatment plateau (static or well stabilized) at which no fundamental functional or physiological change can be expected within reasonable medical probability in spite of continuing medical or rehabilitative procedures." Voluntary abandonment of the workforce or retirement, dismissal for violation of a work rule and incarceration, with some limitations, are employer defenses to payment of TTD.

Procedure

When an award of benefits is payable, the Bureau will calculate the average weekly wage (AWW) and full weekly wage (FWW) using wage documentation that has been added to the claim file by the employer/and/or claimant. Usually the employer provides wage information (W2 forms, payroll records, check stubs) after the initial claim application. Employers or claimants can submit (with payroll records, check stubs W2 forms or other federal earnings reports) on Bureau form C-94-A.

Statewide Average Weekly Wage (SAWW)

The statewide average weekly wage (SAWW) for the year in which the injury occurred is the maximum rate payable for all forms of workers' compensation. The Bureau sets the rate based on the average weekly earnings of Ohio employees who are covered by unemployment compensation.

Full Weekly Wage (FWW)

The full weekly wage (FWW) is the average of the claimant's earnings (including overtime) during the six week period immediately preceding the injury, or the actual earnings (excluding overtime) for the last seven days prior to the date of injury. The claimant can choose the calculation that results in the higher FWW. The FWW is set at the claimant's hourly rate times the number of hours the claimant was scheduled to work during the week of injury if the claimant worked less than seven days prior to the date of injury.

Average Weekly Wage (AWW)

The average weekly wage (AWW) is calculated by dividing the claimant's total gross earnings from all employers during the year prior to injury by 52 weeks. Earnings may include in kind payments that the claimant would normally treat as income but not in kind payments that are merely reimbursement for advanced expenses. Periods of involuntary unemployment may be excluded from the calculation.

The information on this article is for general reference only. To apply the information to an individual situation, you must consult a qualified professional. Unless you contract for specific services from us, there is no attorney-client relationship established.

Workers' Compensation - Understanding The Terminology

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What You Should Know About Court Reporter Services

A large amount of people think that court reporting is a boring job, but it can be such an exhilarating one. The reason it has a reputation for being so dull is because, a court reporter must turn out page after page of legal jargon, but what they don't consider is that the reporter is a first hand witness to some exciting and dramatic court room drama.

What Qualifications Do You Need To Be Able Offer A Court Reporting Service?

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In order to be a certified reporter, an individual has to pass the State Licensure Exams which is executed by a panel of court reporting specialists. He or she may be a member of either the National Verbatim Reporters Association (NVRA) or the National Court Reporters Association (NCRA). To become eligible to be a member of the NVRA you will have to be able to type 250 words per minute, and to qualify as a member for the NCRA the minimum requirement is 225 words a minute.

What You Should Know About Court Reporter Services

For additional improving of abilities in the reporting field, they are obligated to undergo quite a few tests like writing, transcriptions examinations, and speed tests categories like Certified Verbatim Reporter (CVR) or Real Time Verbatim Reporter (RVR).

Court reporting services

Aside from documenting and transcribing the depositions and litigation in court, a court transcriptionist ought to offer various services:

A good quality transcript or report of all the occurrences that happened in the courtroom. The stenographer should preferably write in flawless grammar with the proper spelling and punctuations. For that reason, the court reporter should have an outstanding knowledge of the spoken and written language.

A quality litigation reporter would certainly also know the fundamental facts of the case they are reporting on. This is so that they can completely understand the proceedings amongst the lawyers, Judge, Defendant, Plaintiff and the Jury, and what charges or complaint is against the accused. This can also help the reporter to keep themselves updated on all of the jargon, and they might be able to predict what could be said in future proceedings.

Through voice, electronic or stenotype reporting, the reporter may render service by transcribing every one of these into a written format that is legally recognized in court. They will have to create a transcript that can be read.

The reporting services he supplies will need to be speedy and effective, so the reporter should be be trained well enough to handle stress and pressure and sustain grace under pressure.

Court reporting services don't only involve court proceedings but also outside services. A person that is trained to do court reporting may also be able to work as a broadcast captioner or a webcaster. An individual that can transcribe live TV for disabled people can earn an excellent salary.

They could also work from a home office as a freelance reporter, or as a independent reporter. If someone decides to work in this way, they are able to have a flexible schedule, which can be much less demanding and stressful.

If you love and have a good understanding of the written and spoken English language, you will make an excellent court reporter. It is an exhilarating and challenging job. Court reporting also requires you to have remarkable documenting skills, and the ability to make good decisions. The lawyer requires all the support he can get from a certified court reporter or an official court reporter to win his case. In conclusion, the role of a court reporter is a extremely important when it comes to providing documentation for proceedings, dispositions and court litigation.

What You Should Know About Court Reporter Services

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Protecting A Logo: One Key to Branding Success

Logos play an important part in marketing and brand recognition. Take, for example, Nike's "Swoosh," Mercedes-Benz's "Star," or Target's "Bullseye." These logos have become immediately recognizable as identifying the source of particular goods and services. Typically, companies will invest a lot of capital developing a flashy or eye-catching logo in order to build strong brand recognition. However, in building this brand recognition, companies, especially small businesses, may sometimes overlook the importance of protecting their logos through the trademark registration process.

Many trademark applications are filed using simple word marks in a standard character drawing. The standard character form is appropriate when the applicant wishes to register a mark that consists only of one or more words, letters, numbers, common forms of punctuation, or combinations of any of these elements, without any particular stylization. On the other hand, a trademark application for a logo cannot be filed using a standard character drawing. Instead, a special form drawing must be used. Special form drawings are required if the mark includes a two or three dimensional design, color, or words, letters, or numbers in a stylized form. Despite the fact that different drawing forms are required, a logo may be registered as a trademark just as easily as a word mark.

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Another difference between logos and word marks becomes readily apparent when conducting a trademark search. Word marks may be easily searched by keyword to locate marks that are the same as or similar to the mark being searched. But how does one search for a logo, especially if the logo does not contain words? The answer lies in the design codes.

Protecting A Logo: One Key to Branding Success

The United States Patent & Trademark Office (USPTO) maintains a searchable design mark database. Trademarks that only contain standard characters, type print, block or stylized lettering are not coded because they do not include design elements. However, if a trademark registration or application does contain a design element, then the mark gets coded based upon the particular designs featured in the mark.

The design search code is a numerical classification index that codifies design elements into categories, divisions, and sections. There are currently twenty-nine categories ranging from celestial bodies, natural phenomena, and geographical maps (category 1) to arms, ammunition, and armor (category 24). Each design element in a specific category is given a six-digit number, with the first two numbers indicating the category, the second group of two-digit numbers representing the division, and the last group of two-digit numbers indicating the section. For example, the Mercedes-Benz "Star" is coded as 01.01.01, which represents celestial bodies, natural phenomena, and geographical maps (category 01); stars, comets (division 01); and stars with three points (section 01).

Using the design codes, a search can be performed to review all designs with a particular design element, or all designs which incorporate a combination of design elements. For example, if you wanted to review all the designs featuring a cat wearing a top hat, you would enter the design codes for domestic cats (03.01.04) and top hats (09.05.02).

Although the methods of searching for a word mark are different from that of a logo, the examination process for each type of mark is very much the same. One of the main issues considered by the examining attorney is whether an applicant's mark would create a likelihood of confusion with any registered or pending marks. The examining attorney searches registered trademarks and pending trademark applications for marks substantially similar to the applicant's mark as to be likely to cause confusion as to the source of the goods or services. If the examining attorney discovers any such confusingly similar marks, applicant's mark will be refused registration.

Similarity between word marks is found by comparing the appearance, sound, and meaning of the applicant's mark and the cited marks. A finding of similarity as to any one of the above factors may be sufficient to support a refusal based upon a likelihood of confusion. With logos, the question of the similarity of the marks is determined primarily on the basis of their visual similarity. However, if the logo contains words, greater weight is often given to the word portion of the mark. On the other hand, if the words are merely descriptive or generic, the design portion of the mark would be given greater weight. That being said, the mark, whether a word mark, logo, or combination logo-word mark, must be viewed as a whole, and each case turns on its own facts.

A memorable or flashy logo can go a long way in helping build strong brand recognition. New businesses or existing businesses that use logos to mark their goods or services should take the required steps to protect such valuable assets. Having a trademark search performed can help determine whether the logo is available for use and registration. It is advisable to conduct a search as early as possible to prevent spending thousands of dollars developing and promoting the logo only to find that a confusingly similar logo already exists. If the search results are favorable, the next step towards gaining trademark protection for your logo is filing a trademark application with the USPTO. If your logo ultimately registers, you will receive all the rights and benefits associated with federal trademark registration.

© 2006, Gallagher & Dawsey Co., LPA
December 2006

DISCLAIMER

We hope you understand that a brief article cannot provide accurate legal advice. Accordingly, nothing in the above is intended as specific legal advice to any person. Such legal advice can only be given by a qualified practitioner after a careful review of all the individual facts. We urge you to consult us, or another licensed professional, before you proceed.

Protecting A Logo: One Key to Branding Success

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Violation Nation - What We Are Hearing About RESPA Crime Today

"Have you heard of the term, 'organized crime?" one reader asked, in commenting on the state of the industry today. "They are bad news bears and are eliminating legitimate unbiased businesses," another reader said, remarking on the proliferation of affiliated business arrangements. It's time once again to take the pulse of the industry for our ongoing "What we're hearing" report. In a recent poll on RESPAnews, we asked, "How's the market where you are in terms of the number of kickbacks and RESPA violations you're seeing?"

Survey says...

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"Have you heard of the term, 'organized crime?'" one reader asked, in commenting on the state of the industry today.

Violation Nation - What We Are Hearing About RESPA Crime Today

"They are bad news bears and are eliminating legitimate unbiased businesses," another reader said, remarking on the proliferation of affiliated business arrangements.

It's time once again to take the pulse of the industry for our ongoing "What we're hearing" report.

In a recent poll on RESPAnews.com, we asked, "How's the market where you are in terms of the number of kickbacks and RESPA violations you're seeing?"

Survey says...

Nearly 100 readers responded, with a full 60 percent saying, "They're increasing. Corruption is rampant here."

Just 12 percent said, "They're decreasing. People are paying attention to HUD's enforcement warnings," while 28 percent said, "They're staying the same. Some people still need extra incentives to do business and some don't."

One respondent said, "I am sick and tired of the regulators doing nothing about the blatant violations. I have been reporting violations to the DOC for years. They do absolutely nothing, and this is hurting my business."

Another said, "It's been around for awhile, but it seems to be getting worse."

Yet another stated, "Brokers continue to pay Realtors under the table or offer to pay them for each referral. Out-of-sight, out-of-mind theory: It's just you and I, and no one else knows. Meanwhile, legitimate brokers are being shunned. The bigger problem lies with the lead generators falsely advertising that the borrower wins when they apply and receive calls from four lenders. The problem is that those lenders have paid and thereby are not obligated to be competitive. Borrowers think they are applying to most online companies who are nothing more than lead generators who are selling their information over and over again."

And another added, "Let's all play by the same rules and make it a level playing field for the clients and the brokers to do business on a fair and equitable basis with straightforward truth and honesty."

State of the nation

Here's what we're hearing anecdotally from readers across the nation and across industry lines.

Disclaimer: We cannot confirm that any of these alleged practices are occurring, nor can we claim for certain that they violate RESPA. All reports were received from members of the industry in each respective state.

Arizona

"I encounter the bait-and-switch, kickbacks, etc. constantly in Yuma and, most importantly, in the Phoenix area with Phoenix lenders (primarily brokers). I chalk this unfortunate situation up to nothing more than greed."

California

"I have been a sales rep for the last 10 years in two different counties in California. The counties I work in are not as competitive as the larger counties in Southern California. I have seen many different title companies taking fines from the Dept. of Insurance and I have never seen a Realtor who is usually asking for the perks get in any type of trouble whatsoever. Why are the violations so one-sided? If the perks were never asked for, then it would never be a problem."

"What about all of the illegal kickbacks that are being paid to the brokers and agents for the use of the affiliated escrow and title companies? This problem is rampant, it must be stopped immediately. Consumers are being ripped off by having to pay higher prices to the affiliated companies so they can pay the illegal kickbacks to the brokers and agents. This is well known throughout the industry, but the regulators don't do anything about it. I am sick and tired of having to compete against this illegal activity."

Illinois

"Underwriter/lawyer/agent subterfuge only exists in Northern Illinois. Tell HUD to clean it up. The Illinois DFI certainly doesn't want to ruffle any feathers."

Indiana

"Brokerages are pushing their independent subcontractors to use their title companies, mortgage loan company and allow the sales agents to pick the one or two approved appraisers. The consumer doesn't have a chance in Northwest Indiana."

Kentucky

"I was told secondhand that HUD was in town investigating rumors of kickbacks from a mortgage company to Realtors in Paducah. I don't wish ill to them, I just would like the playing field level so we little people can play, too! Supposedly, for every loan closed with them, they would give them 0 in 'advertising' money. I'm not one to stick my nose in other people's business, but it's at the point where it's affecting my business also."

Ohio

"One large underwriter closed a large AfBA with the second-largest real estate company in Columbus, Ohio, and the Realtors just move down the road to the next company that will create a sham business to put money back in the prohibited entity's hands. Title insurance, although a commodity, is a service industry and we need to get back to that. Realtors and mortgage lenders make the largest gross revenue per real estate transaction. I would not be disappointed at all to see AfBAs or joint ventures go away. They are bad for the consumer."

Oklahoma

"Oklahoma is corrupted all the way to the state capital and no-one seems to be interested in bringing it to a halt. At least a dozen questionable LLC's exist in Tulsa alone between Realtors, builders, title insurance companies, closing companies and lenders. The state insurance commissioner and the state attorney general have been notified for years but always turn a blind eye once the Realtors stop financing their re-election campaigns. Oklahomans are being swindled out of millions of dollars every year, but we can't get any help. HUD really needs to crack down on the big insurance companies that are allowing these practices to continue."

"Sham AfBAs are going on in every state. In Oklahoma, I am constantly in competition with my own underwriters. The nationwide title insurance companies are taking over all the business in every state and we feel helpless to do anything about it."

"I've been screaming about this for three years and noone listens. The agents are conflicted over whether to get the best deal for the customer or put more money in their own pockets. There are too many of these illegal AfBAs across the country, but how can they be stopped? The big Realtors and builders have found an unregulated industry and are ignoring every aspect of RESPA, and it is all being blessed by the underwriters and our spineless insurance commissioner. I am fed up with the level of corruption. The public has no concept of what is happening and the bad guys and their attorneys are capitalizing on that ignorance to win the war and continue to take hundreds of thousands of dollars every year in illegal kickbacks."

Pennsylvania

"My business has been greatly damaged by sham AfBAs that don't do ANY of the title work, let alone perform 'core title services.' Unfortunately, I am in a small town and turning in the offending parties is tricky."

Massachusetts

"Kickbacks by lawyers to lenders is common in Massachusetts -- typically 0 per closing. Is this not sharing legal fees? Kickbacks to lenders by appraisers is also commonly known in Massachusetts, New Hampshire and Connecticut. Is this not the lender getting appraisal fees without a license? We see no end to the practice."

Michigan

"Michigan is out of control!"

Nevada

"Several real estate companies in the Las Vegas market are ties with mortgage companies. That is not so new, but when they are recruiting agents, their fees are so low that it concerns me that they are subsidizing the cost for the agents' fees on the real estate side with the mortgage fees. This to me would be an influence to the consumer even if they disclosed they were receiving compensation from the lending side. The consumer acknowledging the compensation may do so unknowingly or is lead by the agent in a manner that is not apparent to the consumer and are actually paying more for the cost of the loan to subsidize the agent's or broker's overhead cost of doing business. One company also was advertising 125 percent commission on the sale if tied with a mortgage from the company. New homebuilders do this all the time with their lenders offering incentives only through the in-house lender. My thought is that if this practice is allowable, that we should do the same to stay competitive in the marketplace, although I do not believe this to be in the best interest of the consumer, and would violate the fiduciary responsibility of the agent and the broker."

Texas

"RESPA violations are plentiful in the Dallas-Ft. Worth area, as many Realtors do not disclose anything and some mortgage companies are receiving gifts from appraisers to get more of their business that is not disclosed by either party."

Virginia

"A problem that I continually see in our market lies with CRESPA (Consumer Real Estate Settlement Protection Act) - approved settlement companies marking-up fees. Typically, I see the surveyor's fee increased 0+ with the HUD line reading 'Survey to Sam Surveyor/XYZ Settlement Services...0." Having made inquiry of the surveyor, I was able to confirm that his invoiced fee was 0. Same thing occurs with the abstractor's fee. Fees are charged for the preparation of the R-5 form (a Virginia-required seller form ONLY if the seller is moving out-of-state or is an out-of-state resident) even if the seller is a Virginia resident and not moving out-of-state. The most disturbing thing that I see is the marking-up of title insurance rates beyond the normal rates found in Virginia. What I encounter are companies charging no or a minimal settlement or closing fee and then marking-up the title premium 0-0. We also have a situation where a particular title agency whose primary stockholders are various local banks. Loan officers are paid bonuses by the bank for every loan that is insured through the bank-owned title company. Borrowers are given a very lukewarm choice of competing title companies and, on occasion, a loan is approved with an unwritten agreement that the borrower will use the bank-affiliated title company. Title companies having affiliations with local Realtors is an ongoing problem. Sales agents are highly pressured to use the broker-related title agency. The current situation is making it harder and harder for us to compete. I have never complained about competition but the playing field is not level. My choice to remain competitive is to break the rules. I have no desire to encourage this cancer that is destroying our industry."

Insert your state here

Do you know of suspicious things going on in your local marketplace that you'd like to see investigated?

In order to report a RESPA violation, you should send HUD a written complaint describing the practice that you believe violates RESPA. The complaint should include the names, addresses and phone numbers of the alleged violators. HUD prefers that you also include your name and phone number in case an investigator wishes to ask further questions. You may request confidentiality. Send the complaint to:

U.S. Department of HUD

Office of RESPA and Interstate Land Sales

451 7th Street, SW, Room 9154

Washington, DC 20410

You can also reach HUD's RESPA division by phone at (202) 708-0502 or by e-mail at hsg-respa@hud.gov

You may also wish to send a complaint to state and other federal agencies that have the responsibility for regulating the settlement providers engaged in the referenced practice. As far as we know, there is no way to know if a company has already been reported, because the agencies won't release that information until after an investigation is completed.

Violation Nation - What We Are Hearing About RESPA Crime Today

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How Real Estate Agents Lose Home Buyers

As a home inspector and the neutral person during a real estate purchase I occasionally get information as to why a home buyer decides to use a different real estate agent. What I will do here is to share some of these reasons so that perhaps you can learn to be a better sales person or representative for your clients. Whether you are an agent or not this information will be helpful to you and your employees.

As I perform home inspections around the Columbus Ohio area I have the opportunity to do inspections for many people. Sometimes I will do second inspections for someone because the first home purchase did not happen. This happens for a variety of reasons such as loan issues, septic system problems, influenced by family, etc. This is somewhat expected. People have different levels of comfort when it comes buying a home. Every now and then I will notice that the home buyer is using a different agent as their representative. When this occurs the buyer will often come out and tell me why they switched agents.

Attorneys In Columbus Ohio

The first time I encountered a person changing agents they told me it was because the entire time the agent was showing them some houses, the agent was talking on the cell phone to someone else. The agent was not giving them the attention that they deserved and expected.

How Real Estate Agents Lose Home Buyers

Another time the buyer decided to find another agent was when their agent pushed them harder to buy a home than they liked. The agent even tried to make them feel guilty by saying that if they did not buy the house then the sellers would be foreclosed on by the bank. The buyers did not feel that the agent was being a good representative for them.

Another client that I did several home inspections for got out of a home purchase for a couple of reasons. There were some expensive issues with the septic system that the septic company revealed but that was not all. The listing agent was part of what killed the deal. The listing agent was way too slow in responding to communications. This slowness to respond and to help solve issues made it too much of a difficulty to deal with so they got out of the home purchase. If the agent was fast to respond and was helpful then the issues may have been dealt with fast and appropriately, saving the home purchase.

As a home inspector in Ohio I am in a position of trust when it comes to the home buying process. Buyers will tell me things that they may not reveal to the agents. When they tell me issues and why they changed agents I use that information to learn from and to check how I do things. Perhaps that is why I get the good number of referrals I get from past clients.

How Real Estate Agents Lose Home Buyers

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