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Joseph Davidson Calhoun III

Joseph Calhoun’s Answers

3 total

  • If someone has been subpoenaed to testify, but the trial has been postponed do they still have to appear on the date shown?

    Joseph’s Answer

    In Arkansas state courts, the official form for a subpoena requires the person served to appear at the place, date and time specified. The rule of civil procedure (45) envisions a "continuance" (postponement) of the trial or hearing, by stating that "if a continuance is granted and if the witness is provided adequate notice thereof, reservice of the subpoena shall not be necessary." However, the rule does not relieve the witness of the duty to appear at the place and time specified. As a practical matter though, if the witness has no objection to testifying, the witness could probably call the attorney that issued the subpoena, and have that attorney agree to a change of the place and time; since the party issuing the subpoena has to pay each subpoenaed witness an attendance fee and mileage fee, there is no good reason why that party's attorney would not agree to change the place and date.

    If the witness does not want to testify, there are certain requirements that had to be satisfied to make the service valid.

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  • Can I use a word mark or design mark in a class it has not been trademarked in?

    Joseph’s Answer

    If nobody has registered the mark for any class, you may adopt that mark in trade areas other than the earlier user's, for products unrelated to those of the earlier user. You cannot use a mark in any trade area that creates a likelihood of consumer confusion with any other mark already being used in that trade area by somebody else for goods similar to yours.

    If an earlier user has a federal registration of a mark for particular goods or services, even if your use of a confusingly similar mark may not initially infringe the registrant's mark because your products are not within the class protected by that registration, you use runs the risk that your goods/services are within the registrant's zone of expansion ... other goods/services that one would reasonably expect or assume the registrant would expand into.

    There are lots of nuances to consider in such a case, requiring a seasoned trademark law attorney.

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  • Priority date for patent

    Joseph’s Answer

    If that 2011 patent discloses the parts of your method that are both novel and non-obvious (combinations or modifications of prior art), that patent should block the patenting of your method. If your method makes a substantive improvement to that patented method, you might be able to patent your improvement ... if nobody else has already filed a patent application for that improvement; however, you may have to obtain permission from the owner of the patented method, before you can lawfully make, use or sell your patented improvement.

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