Mandatory snow-tire legislation needs re-treading

As Coloradoans there is nothing more frustrating than heading over I-70 in the winter and hearing the words “snow storm” and “Interstate closure” in the same sentence.

Colorado has a policy of keeping I-70 open, even during the most treacherous of winter storms. The reason is because of economic injury due to freight delays. According to economic assessment reports from the Department of Transportation and the Motor Carriers Association, disruption of national freight transportation systems stemming from closures of I-70 in Colorado alone is nearly $100 million per year.

I-70 near Loveland Pass / Eisenhower tunnel
Photo credit: thedenverchannel.com 2015

The “chain law” for commercial carriers traversing Colorado is very simple. At all times, from September until May, commercial carriers must carry sufficient snow chains or traction devices or face a $50 penalty.

When the Colorado Department of Transportation declares the chain law in effect, all vehicles with a gross combined weight 26,001 lbs or more are required to have 4 or more drive wheels covered with an appropriate traction device. Vehicles with less than 4 drive wheels must have all drive wheels covered with an appropriate traction device.

The penalty for non-compliance is $500 when the chain law is in effect. If the vehicle causes blockage of a travelable portion of the roadway, then a $1,000 enhanced fine is assessed on the commercial driver.

Colorado’s current non-commercial vehicle snow-tire law is divided into two categories: (1) chains or adequate snow-tires and (2) chains only. The Colorado Department of Transportation has the duty of invoking the “chain law,” which, depending on road conditions, maybe for commercial vehicles only, or all vehicles, including cars, trucks, and SUVs.

Currently, HB-1173, sponsored by Reps. Bob Rankin, R-Carbondale, and Diane Mitsch Bush, D-Steamboat Springs, which passed the Senate Transportation Committee unanimously last week, would require all motor vehicles traveling I-70 from Dotsero to Morrison to have sufficient traction in the form of a four-wheel or all-wheel drive vehicle with regular tires with at least one-eighth of an inch of tread depth, snow-tires with a tread depth of one-eighth of an inch, or carry tire-chains or adequate traction devices.

Drivers found in non-compliance would face a $100 fine. An enhanced penalty of $500 would be added if the non-commercial vehicle causes closure of any portion of the I-70.

The non-commercial version of the commercial “chain law” was designed to mirror the commercial version; however the Rankin-Mitsch Bush version doubles the fee for non-compliance and proceeds to solve no problems.

Under the proposed legislation, the most significant change would be to require non-commercial vehicles to have snow-tires or chains at all times from November 1 to May 15, rather than just when the “chain law” has been declared.

The bill is “nanny government” at its finest and presumes that citizens lack necessary common sense to function in society. Colorado already has a non-commercial snow tire law which is clear and goes into effect when CDOT deems the roads particularly hazardous.

Colo Reps Bob Rankin & Yuelin Willett visit on House floor.

The Rankin-Mitsch Bush bill is a “boy scout” measure of mandating being prepared. While the bill’s authors are at it, they should mandate that Coloradoan’s know how to put on chains, perform CPR, and to always carry a medical kit, blanket, and avalanche shovel just in case accidents happen.

Moving beyond the argument that government is trying to mandate common sense, the Colorado State Patrol would have standing probably cause to search any vehicle for compliance. Fourth Amendment gurus out there should be shivering at the unprecedented power being granted to law enforcement.

It may be easy to determine speeding from a radar gun, but how hard is it to tell if a sedan is carrying chains on a beautiful, sunny, dry road day in January?

Unlike the commercial counterpart or current law concerning non-commercial vehicles, the proposed legislation would allow the state patrol to pick and choose when to enforce the law and on which vehicles. This means even when snow-flakes aren’t flying the state patrol could use this legislation to stop a vehicle in pursuit of other offences or mere revenue generation.

The Rankin-Mitsch Bush bill undermines due process, as cars are categorically not typically equipped with four-wheel or all-wheel drive; thus, creating a strong presumption that these cars may be in violation of traversing I-70 without chains, or at least one-eighth tread, regardless of the chain law being in effect.

This author conducted a analysis of all reported closures of I-70 from February 20 to March 30, 2015 and found of the six times the interstate was closed due to automobile accidents at least four were as a result of a truck or SUV. A conclusion here is that certain drivers, even with presumed adequate tires, operate their vehicle in such a way that reflects a belief of immunity from the effects of icy roads.

Before the Senate sends this bill to the Governor, perhaps a little more tread could be added to eliminate the high risk of abuse and the discriminatory aspects of this legislation.

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M Soper, "Mandatory Snowtire legislation needs re-treading"The Daily Sentinel (Grand Junction, Colo.) 5 April 2015 pg B5 http://www.gjsentinel.com/opinion/articles/mandatory-snowtire-legislation-needs-retreading# (accessed 5 April 2015)

Hickenlooper's new trademark more than just a beer coaster

This past summer, Gov. John Hickenlooper unveiled a new ‘trianglized-licence plate looking’ trademark to market the State of Colorado nationwide and overseas. More recently, State Rep. Bob Rankin (R-Glenwood Springs), introduced legislation to have the people decide whether they want a new logo for Colorado.

Colorado's new federally registered trademark

A week ago, H.B. 1017 was killed by the Democrats, on a party line vote, in the House Business, Labor, Economic and Workforce Development Committee.

Rep. Rankin fell short of promulgating the negative legal consequences Hickenlooper’s new trademark may have on Colorado businesses. To begin, we need to first understand some basics of American trademark law.

 

A trademark is a word or phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from others in the market place. The main purpose of a trademark is to designate the source of goods or services. Therefore, a trademark is something that only exists with respect to some commercial activity.

Trademarks can take one of three forms: standard character format; stylized/design format; or sound mark. For example, the word: “Coke” is a standard character mark, which means any style or symbol with the word “Coke” is protected under the Lanham Trademark Act of 1946. The Coke bottle-logo is a good example of a stylized/design mark. And yes, the roar of the Harley-Davidson engine is a protected sound mark.

When federally registering marks with the United States Patent and Trademark Office, a class of goods or services must be indicated. Going back to the “Coke” example, the Coca-Cola Company has registered the use of the Coke mark on everything from clothing to toys to food and drink products.

A quick search of the USPTO shows that Hickenlooper’s trademark is registered as a standard character mark, which means that the trademark owner has an obligation to pursue any individual or entity that uses the words: “CO” or “Colorado” on any “Clothing, namely, tee shirts, sweat shirts, polo's, hats, and jackets.”

In layman’s terms, Hickenlooper has successfully stifled private businesses in Colorado who make a living putting the word “Colorado” on a t-shirt and selling it to tourists. In other words, the state is now a direct competitor in the intellectual property arena with Colorado businesses.

In order to avoid open licencing, the State of Colorado will be forced to send hundreds of cease-and-desist-letters to small business across this state who dare infringe upon the state’s intellectual property right.

The second registered class which Hickenlooper is claiming is for “promoting public awareness about Colorado itself, and public services offered through Colorado state government entities, as well as promoting products and services originating from Colorado businesses and organizations.” Here, the state may have a legitimate interest, but the question still remains, why are they claiming a mountain of rights, when they really on need a hill?

The USPTO search also revealed the registered owner is not listed as the State of Colorado, but as Brand Colorado, a division of Colorado Nonprofit Development Center, which is located in Boulder. Shouldn’t the trademark owner be an actual state entity, such as the Colorado Tourism Office?

The Hickenlooper Administration’s effort to replace the Colorado State flag and seal with a trendier brand/trademark circumvents the reason for emblems of state. The current state trademarks – the flag and seal – identify and distinguish the source of state services / goods for the public. Additionally, each agency has its own trademark to indicate to the public the services they offer.

Creating more official trademarks to represent the State of Colorado blurs the distinction of which trademark represents, which is the source of the services. In other words, more marks confuse the public about which one actually represents the State of Colorado.

This past summer I was at the US Open Tennis Championships in New York and saw a man with a ball cap and Colorado flag on it. I asked him if he was from Colorado, as it is always great to see fellow Coloradoans when outside the state. He told me he had just spent a week holidaying in Aspen and thought we had a really cool flag design. Perhaps this New Yorker was not the target of the new trademark marketing campaign.

During my time in Edinburgh, Scotland, it was quite common to see tourists with stylized Colorado gear, mostly an artistic version of the red “C” with fields of blue and white. Of perhaps all the states, Colorado has one of most iconic and memorable flag-trademarks and adding a new mark only serves to block intellectual property fields which should be in the hands of the private sector.

Adding a new trianglized-licence plate looking trademark to the state’s intellectual property portfolio only serves to confuse the general public on which mark actually represents the State of Colorado. Additionally, Hickenlooper’s mark fails the state’s real objective, which is to market the state to tourists, businesses, and investors. 

Fisheries and Somali Pirates: ideas for tomorrow

Somali maritime pirates have often said, if it wasn’t for foreign trawlers, invading their fisheries, they would never have turned to piracy. John Vidal, with London’s Guardian newspaper, uses this logic in advocating an international response to suppressing illegal fishing. This is purely ‘pirated spin’, the reality is one successful pirate attack equals nearly a lifetime worth of earning in the Horn of Africa region. To quote Treasure Island, “‘Money!’ cried the squire. ‘Have you heard the story? What were these villains after but money? What do they care for but money? For what would they risk their rascal carcases but money?’”^[1] This said, there are a couple ways piracy might be less lucrative if a robust Somali fishing industry were to be resurrected.

 

Firstly, the Transitional Federal Government (TFG) needs to define their Exclusive Economic Zone (EEZ) under the United Nations Convention on Law of the Sea (UNCLOS) of 1982. This would provide the legal basis for proceeding to step two. As long as the reward-risk ratio for maritime piracy outweighs that of fishing, there won't be much demand for pirates to become (or go back to) fishing. One successful 'piracy for ransom' (PFR) or 'kidnapping for ransom' (KFR) could provide the equivalent of a lifetime's earnings for the average Somali.

The European Union Naval Force (EU NAVFOR) has been training Ugandan soldiers attached to African Union's Somalia Mission (AMISOM) to be part of a ‘vessel protection detachment’ (VPD) programme aimed at guarding the transport of supplies to Mogadishu for AMISOM and the United Nations World Food Programme (UN WFP). It’s a joint UN Security Council (UN SC) and North Atlantic Treaty Organization (NATO) (S/2011/662, para 52) programme. The programme sounds similar to one of adding private security to commercial vessels, the difference here is that they are AMISOM and WFP vessels which have been chartered by the UN Support Office for the AMISOM (UNSOA) and the WFP. Logistical challenges of moving VPD to and from charter vessels et cetera. Once domestic shipping into Somalia transfers from shield of Combine Maritime Task Force (CMF), NATO and EU NAVFOR in 2014, there needs to be a multi-pronged strategy.

AMISOM might be a good entity to have move from a 'on land' police to transitioning VPD units to a coast guard. As far as fisheries go, the TFG might consider a licensing scheme to sell fishing licences to non-Somali fishing companies. Assuming the licence scheme isn't corrupted, it could generate revenue to help fund the coast guard. The coast guard would be tasked with law and environmental enforcement of the EEZ.

The fear, as with many 3rd World Countries, is corruption. Galmudug Prison is a great example of why Western standards are not always the best ideas - this was a multi-million Euro project built to EU standards and resulted in several hundred convicted pirates being freed and the guards and their families occupying section of the prison as "apartments", since it was so much nicer than anywhere else in the region. Efforts need to have a goal of eventually being self-funding, as the TFG, Somaliland, Puntland and Galmudug should at one point take control of self-governance.

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^[1] Robert Louis Stevenson, Treasure Island 32 (Oxford UP 2008) (1883)