Staying On The Funny Side Of The Boogey Man

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I never used to get scared when I was young, single, and living in an apartment complex overlooking the projects where even the sound of gunfire didn't keep us from opening a ground floor window to catch a breeze. I felt safe surrounded by my family of strangers who made window art out of beer cans, whose cars vibrated to the beat of their own drum, and who were prone to pack up and move in the middle of the night. I slept soundly to the pulse of the blue light blinking through my bedroom window. But somewhere between marriage, motherhood, and moving into a quiet house in a nothing-out-of-the-ordinary neighborhood, I became a chicken. Suddenly I'm convinced that it has become the American burglar's dream to get his hands on our dusty VCR, hand-me-down televisions, wallet with three dollars and a handful of Chuck-E-Cheese tokens, and a collection of Beanie Babies that I am convinced will get us through retirement - or even worse, to have his way with me, which even I have to admit makes for a pretty desperate burglar.

I considered an alarm system but decided that I would rather be taken by surprise and killed rather than hear an electronic voice whisper from my bedroom wall that an intruder is coming up the stairs. In fact, I would probably take myself out to spare myself the agony of suspense. And with my luck, I would get the electronic alarm voice with the bitter just-left-my-husband attitude. "See, I told you he was breaking in, you fool. Next time maybe you'll listen to me. I'm thinking you asked for that one. You should never have gotten married; this fool here isn't going to protect you. That's a man for you." No, I don't need an alarm system. I married an ex-football playing power lifter who is convinced that he can kill someone with his bare hands - despite the fact that our living room bookshelf collapsed in the middle of the night last week and he didn't even wake up. I've pretty much resigned myself to the fact that if the burglar wants to come in, there's nothing that can stop him. I think the makers of alarm systems need to talk to the makers of toy packaging. If burglars had to work as hard getting into a house as parents have to work to open a new toy - the hard plastic, those twist ties, all those tiny screws - that boogey man will not stay the course. I'm just saying.

It's when hubby goes out of town that I struggle. I'm not scared at the thought of him going, and certainly not scared enough that I can't plan an enjoyable evening of scallion chicken, chocolate, scented candles, Gray's Anatomy, three episodes of Law and Order, and a Lifetime movie about a woman being stalked by her lover's ex-girlfriend's crazy roommate, starring Valerie Bertinelli. For some weird reason I'm not scared earlier that afternoon, or at dinner, or at 9pm, or at 10pm, or even at 11pm. But at 11:01 my eyes start to shift and campy horror music tracks start running through my head. In my mind, that's when the boogey man clocks in and starts creeping slowly down the street in his rusty old Dodge Dart and trunk full of duct tape and hefty bags. I am not scared until I put on my flannel nightgown (just so he won't be tempted), fuzzy socks, and crawl under the covers. That's when I hear the noise. Never fails. Every time. I hear a noise. I do a quick run through of all the explainable noises - ice maker, cat, air conditioner, leaky faucet, sound of the whistle inside my own nose. None of these. I am convinced that this is a noise only the boogey man can make.

I try to be logical - what are the odds that this guy would choose my house - which doesn't make me feel any better because it's the same logic I used when I convinced myself nobody would see me if I ran out to the mailbox in my bathrobe. That story didn't end well. There are still children in therapy over that one. In fact, odds were good that he was going to pick my house because I had just mopped the floors and wouldn't that just be a kicker, to go out after having spent hours cleaning your floors - like washing your car and it rains - those are my kind of odds. Okay, so I didn't actually mop them, I swept them. Okay, okay, so I just used the dust buster in the corners - what are you, the clean police? I considered making the boogey man's job easier by going ahead and putting all my belongings on the front porch so he wouldn't have to come in. But my lazy side convinced my fearful side that was a bad idea. Besides, last time I left piles of stuff on the curb, even the bums rejected it. I considered sleeping in a different room to surprise him but that would mean having to wash the sheets in the guest bedroom.

I imagine the boogey man looking through my car trying to remove the expensive electronic equipment that's not there - it's a ten-year-old Hyundai for gosh sakes - and I can actually hear him swear as his fingers wrap around a petrified french fry and the chewed-up nugget remains that have grown hair in between the seats. I see his lips curl up in disgust as he flips through my CD collection. If he were a smart burglar, he'd go for the bag of diet bars in the back seat that cost more than my car is now worth. Shoot, if he were smart, he'd pick a different house. Take the CD's, by golly, but those diet bars cost me a fortune. Only in America does it cost more money to eat less. Great, now he's mad and he's coming inside. I know this because I can hear him picking the lock downstairs -so what if I can't hear my husband when he gets locked out and bangs for thirty minutes on that downstairs door - now I am sure I can hear that boogey man breathing and breaking into the house in slow motion - because that's what they do you know, move in slow motion while looking both ways like kids about to cross the street. So much for the big dog house that's supposed to scare him away. I'm convinced that he's been casing the house long enough to know that the scary big dog went to the vet and didn't come home whereupon the burglar gossip line went crazy - "Dog gone at the Swanson's, I repeat, dog gone at the Swanson's."

That's when I realize I don't have the phone - dummy - any fool knows that you won't have time to get the phone if it's across the room. But now I'm worried. Do I have time to get to the phone before he reaches the top of the stairs? Should this time be spent finding a hiding place? And would I still fit on the top shelf of my closet like I imagined when I was smaller? Should this time be spent trying to get out of the bathroom window - oops - the same window that won't open anymore because I painted over it by mistake? Great. I can hear my husband now leaning over my dead body saying, "Well, you might have gotten away if you had listened to my advice. That's what you get when you do a rush job." I decided to make a run for the phone. I'm still here, so obviously it was a good call. Excuse the pun. Even when I'm scared, I've still got it.

Then I can hear the sound of his pick ax brushing the wall going up the stairs. It's weird how your heart can be throbbing through your chest, your life can be flashing before your eyes, you can be picking out thirty-seven escape routes and hiding places, and still wonder if this is the night gown you should be caught dead in, picturing your blue-haired relatives leaning over the casket saying, "What a shame. So young. You think she could have picked a better gown. I didn't realize she had put on that much weight."

These are the times when I always wish I had taken a self-defense class. I try to remember everything my husband told me to do when you're getting attacked. Shove him up the nose. No, too gross. Poke him in the eyes. Eeeewwww, even worse. No way. Knee him in the groin - maybe, but last time I tried to hike my knee up in aerobics I fell down. Beat him until he doesn't get up, my husband tells me - over and over. He obviously didn't see me when I cried in kickboxing class because my knuckles got scraped. He obviously hasn't seen my bruises from trying to get my three-year-old dressed. My husband has this image of me that doesn't exist, perhaps never did. He didn't know me the time I ran into the cement pole in front on Big Lots because I was looking down at my shoes to see if they made my feet look big. He didn't see me wave and smile at the swaying drunk guy who was pee'ing on the dumpster outside the Circle K because I didn't want him to think I was rude. The idea of me overwhelming my attacker is about realistic as the idea of me passing a Krispy Kreme without stopping.

It is for these reasons that I consider myself a pacifist, but sometimes the mind does crazy things and I decide that in order to protect myself and my sleeping child, it's time to get the gun. Yes, I said it. We have a gun. Not my idea. My husband brought guns into the marriage. I do not like guns and the idea of giving one to me is like giving a knife to someone with seizures - you don't know what will happen but you can bet it won't be good. But drastic times call for drastic measures and the gun is closer than the knives in the kitchen and I can somehow imagine myself shooting someone from a distance easier than trying to knife him the same way I poke a potato. I am sweating just thinking about the gun which is hidden in the top shelf of a closet in the next room. There are no bullets in it, so the best I can hope for is to throw it at him. But sitting there wide-eyed in my granny nightgown at three am - well, I'm not thinking clearly. I go for the gun. I practice pointing and saying, "Make my day. This is going to hurt me worse than it hurts you. I have a gun and I'm not afraid to use it. Give me all your aces." Okay, so at least I was entertained and momentarily forgot my fear. Until I had to pee.

Everybody knows that there are two moments when the traditional boogey man will strike - when you're in the shower and when you're squatting - both very vulnerable positions. Not as vulnerable though as if it were the middle of your annual exam. That would never happen though because the boogey man would take one look at the stirrups and syringes and run. Or tell him the stick turned pink and that'll get rid of him. I should sleep at the doctor's office when hubby is out of town - kind of like hunkering down in a safe bunker - or whatever the expression is. Anyway, the movies never show you how to handle the whole having to pee situation. But now I really have to go. Surely I can't put the gun down or he'll grab it and turn it on me - or rather throw it at me as the case may be. There is only one choice. I have to pee and stay armed at the same time. I once drove three miles, in the rain, with broken wipers, while applying lipstick and changing a diaper. I can do this. And I do. And with great skill and manual dexterity might I add. I complete my business and never once take my finger off the trigger. Annie Oakley, you got nothing on me.

Now I'm back in the bed, eyes wide, brandishing the gun wildly around the room and realize that my child is sleeping across the hall and what if the boogey man goes there first? Although there are days when I am convinced that if my wild-eyed toddler ever got abducted, they would certainly bring him back, I just don't want to take any chances. And it's usually at this point that I run into his room and grab him and bring his snoring body back to my bed where I am fully prepared to throw myself over him and yell, "Take me! Take me!" But now I've got the sleeping kid and the gun and I don't want him to wake up and see the gun - bullets or not. And what if my husband comes home early for some reason and can't reach me on the phone that is lying on my stomach because the battery has suddenly gone dead and so I don't know he's coming and he sneaks in and I don't hear him and I shoot him by mistake - and I know there are no bullets in there, but good grief, how can you be sure? I'm certainly not going to open it to find out.

I decide that I would rather be shot than accidentally shoot my family and I put the gun under the bed. Nope, not a good idea, because undoubtedly Junior will pull it out covered in dust bunnies the size of a small dog - he finds everything - and he'll start playing with it and put it in his backpack (despite the fact that he still can't work the zipper) take it to school and he'll get expelled from preschool and I'll get arrested and they'll say this is why the world is in the state it's in - and makes sense - she was the mom who sent chocolate bars for snack instead of carrots. And I'll go to jail and end up rooming with a boogey man or boogey lady, as the case may be, and find out that it was her cousin who broke into my house and caught me on the john and still has the mental scars to prove it. Better to put it back on the top shelf of the closet and resort to plan B where I tell the criminal to please hold a minute while I run and grab my unloaded gun.

It is 4:30am and I'm wide awake with one arm on the phone, fingers gripping my new razor in the hopes of nicking him to death, and the other arm on my Bible, having decide my best chance at scaring him off would be to witness to him - he would either run or be saved, either of which would work in my favor - while my son snores loudly beside me. And then somehow - as I'm praying that if this is my night to die, to please make sure that my husband does not find anyone else skinnier, and if there could be chocolate in heaven I would be really happy - by some wonderful miracle, I fall asleep and wake up at that magical hour of 6am where I am no longer afraid because the sun is now coming up and everybody knows that the boogey man gets off work at 6am - just like he gets snow days and Christmas eve off. And I drift back to sleep and all is right with the world and there is peace. I have had my brush with death and lived to write about it. Little do I know that there is another fear just lurking around the corner - when I would mistakenly think that with just a little bit of spandex I could fit my size fourteen body into a size ten pair of jeans. I still have the bruises to show for it.

P.S. Did you know the average burglar only makes 4,000 a year? What if that's based on just one good hit? That's not bad if you average it. I think he's making more than I am.

Staying On The Funny Side Of The Boogey Man

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At The Beach - A Primer On The Selection And Clearance Of Trademarks

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INTRODUCTION:

Surfboards, swim fins, wetsuits, t-shirts, swimsuits, sunglasses, sunscreen, bottled water, sandals, umbrellas, towels, volleyballs, ice chests........ sounds like another summer day at the beach! To the savvy, business entrepreneur, however, these beach Accessories/necessities are the breeding ground for commercial exploitation. Not far behind in this consumer petri dish of sand and capitalism is the need to select a trademark by which the item exploited will be known, e.g., HOBIE® surfboards, O'NEILL® wetsuits, OAKLEY® sunglasses, BAYWATCH® wristwatches, MIKASA® volleyballs, and COPPERTONE® sunscreen and tanning lotions. This article will highlight some famous trademarks in the sun, sand & surf and will briefly address the legal and business issues with respect to the selection, clearance and registration of such trademarks.

TRADEMARKS DEFINED

A trademark (or mark) is defined as any word, symbol, slogan, or device (such as a design), or a combination of them, used by a manufacturer or merchant to identify his goods or services and to distinguish them from those manufactured, sold or serviced by others. COPPERTONE® and SPEEDO® are excellent examples of 'word' marks. "TAN DON'T BURN" is an example of a 'slogan' mark. A logo or design such as the famous COPPERTONE girl and the dog is an example of a 'design' mark. An example of a service mark is ESPN® for the "entertainment services, reporting and sports programming services rendered through the medium of television." Such a service mark as ESPN® can also be exploited and serve as a trademark (i.e., for clothes (shirts, hats, sweaters, vests); prerecorded videotapes; beach bags, beach towels, etc.). In the U.S., trademark rights are acquired through use (e.g., by selling or transporting your product in commerce with the mark attached or on a label). In addition, under certain circumstances "color" can be a trademark. Examples outside the surf/beach industry are the color "pink" for fiberglass insulation and "green" for dry cleaning pads.

SELECTION AND CLEARANCE

The selection of a trademark is the first step that a merchant undertakes to create an identity for his/her surfboard or swimsuit, etc. The clearance of a trademark is the process of determining whether or not the trademark is available and is not being used by someone else as a trademark. This clearance process cannot be overemphasized in its importance. Ignoring this vital step can lead to a multitude of problems and expense. In the clearance of a trademark, a two-step process is suggested. The first step is to conduct an on-line Computer trademark search of the mark. This on-line search is further clarified by identifying the goods sought to be used or sold as trademarks are categorized by classification. In the United States, the federal government has adopted the International Classification system. Toys, sporting goods, volleyballs swim fins, bodyboards, and surfboards are in Class #28. Swimsuits and beach apparel and clothing are in Class #25. Backpacks, beach bags and gear bags are in Class #18. Posters, magazines, books, trading cards, and other printed matter and publications are in Class #16. Videotapes, audiotapes, video game software (including downloadable software over a global Computer network), surfing and skateboard helmets are in Class #9. Therefore, if you are planning to sell surfboards, apparel and gear bags, then you will want to conduct an on-line search of Classes # 28, 25 and 18. The on-line search is often called a "knock-out" search. This is because the on-line search is a quick and relatively inexpensive way to determine if the mark is already being used. These on-line searches are often available at public libraries, commercial search firms and law firms.

If your mark appears free of conflicts after conducting an on-line search, the next level of search is the full search, which is obtained from commercial search firms like THOMSON COMPUMARK and CORSEARCH. The full search will search the federal database of trademarks at the Patent and Trademark Office, State trademark registrations, common law sources such as phone directories and Dun & Bradstreet listings, plus internet domain name registrations. If your mark still appears clear of conflicts after a full search, then you can be fairly certain that you can adopt and start using your mark. CAVEAT: These searches are not guarantees of the absence of conflicting marks, but they do allow a merchant to make a more informed decision in the clearance of a trademark.

FEDERAL TRADEMARK REGISTRATION

To obtain maximum protection, it is best to register your trademark or service mark. In the U.S., your greatest rights can be obtained with a federal trademark registration. If you are only conducting business within one state, e.g., California, it is possible to register your mark with the California Secretary of State. However, if it is your intent to do business across state lines or in foreign commerce (or if you are already doing business across state lines or in foreign commerce), then the prudent thing to do is to file for a federal trademark application with the U.S. Patent and Trademark Office located in Alexandria, Virginia.

An application for registration of a trademark must be filed in the name of the owner of the mark. The applicant must submit: (a) a written application; (b) a drawing of the mark; (c) the required filing fee (which is 5 per mark per class at this time). The applicant will also incur attorneys fees, typically a fixed fee, should an attorney be hired to file the application(s). Trademarks registered with the Federal Government, as stated previously, are categorized by a classification system which correspond to the type of goods sought to be registered. For instance, MOREY® and MOREY BOOGIE® for bodyboards, CHURCHHILL® swim fins and MIKASA® volleyballs all are in Class #28. The ESPN® service mark is in Class #41; QUIKSILVER®, HANG TEN® and OCEAN PACIFIC® for clothing are in Class #25; BILLABONG® and BODY GLOVE® wetsuits are also in Class #25; REEF BRAZIL®, NIKE® and ADIDAS® for sandals and footwear are also in Class #25; SPEEDO® and TYR® backpacks and gear bags are in Class #18; SURFER® magazine, VOLLEYBALL® magazine and SURF BUSINESS(TM) are in Class #16 for publications.

After the mark is registered in the U.S., it is important to give notice of this fact by placing the registered trademark symbol, "®", adjacent to the mark. Prior to registration, it is also advisable to use the symbols, "TM" (for trademarks) and "SM" (for service marks).

The chief advantages of a federal registration include:

"Constructive Notice" nationwide of the registrant's claim to ownership of the mark. This basically eliminates the good faith defense of an infringer who claims to have lacked actual knowledge of the registered mark.

Registration is also evidence of (a) the validity of the registration; (b) the registrant's ownership of the mark; and (c) the registrant's exclusive right to use the mark in commerce in connection with the goods or services.

Registration also entitles the registrant to (a) file a lawsuit for infringement of the mark in Federal Court; (b) prevent importation of goods bearing an infringing mark; and (c) use the registration as a basis for registering the same mark in certain foreign countries.

Trademark registrations are valid for 10 years subject to certain use and filing requirements, and are renewable every 10 years, also subject to continued use and renewal filing requirements.

FOREIGN TRADEMARK REGISTRATION

If your product is distributed internationally, then you must, by and large, register your mark(s) in each country where you plan to do business or are doing business. Is this expensive? Yes! On the other hand, the alternative is the potential loss of the ability to sell your product in those countries where a third party has filed a prior application for your mark(s). Therefore, foreign trademark protection is typically obtained on a country-by-country basis. Unlike the U.S., however, trademark rights in many foreign countries are obtained by registration rather than use. This further necessitates the importance of filing for marks in foreign countries as soon as possible.

One notable alternative to the typical practice of registering trademarks on a country-by-country basis is the new (European) Community Trade Mark Application which has been available since January 1, 1996 for the filing of applications. By obtaining a Community wide trademark registration, an owner of a U.S. registered trademark, for example, can potentially save both time and money otherwise invested in registering a mark in each separate European country and can thus hopefully attain maximum protection for its trademarks in overseas markets at a minimum of cost.

CONCLUSION

Whether you are selling products or services, it is very important to be aware of your trademark and/or service mark and their value. In a competitive business environment, the potential for economic loss is tremendous if trademark rights are not acquired, evaluated, protected and maximized. While this article does not portend to cover all the intricacies of trademark law, hopefully it has helped to shed some light on this area of the law which is of paramount importance to the business owner.

© Copyright 2008, William E. Maguire. All Rights Reserved.

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