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Apr112013

Why Register a Domain Name? Intellectual Property Protection to Start

Business LitigationSan Fernando Valley Business Litigation Lawyer

by Nicholas Kanter
818.907.3289

Business Litigation Google+ 

 

A political organization recently learned the hard way that possession, including possession of intellectual property, is nine-tenths of the law.

In January, after helping President Obama win reelection, Obama for America announced it was switching focus to a grass-roots organization and changing its name to Organizing for Action. The announcement was made before OFA registered the domain, www.organizingforaction.net.

On the day of the announcement, an individual named Derek Bovard registered www.organizingforaction.net.  Initially, Mr. Bovard reportedly set the domain to redirect to the National Rifle Association’s website. Currently, the OFA website redirects to Dr. Benjamin Carson’s speech at the National Prayer Breakfast.

OFA filed a complaint with the National Arbitration Forum [the complaint was filed in accordance with Internet Corporation for Assigned Names and Numbers’ (ICANN’s) Uniform Domain Name Dispute Resolution Policy] seeking an order transferring the domain name from Mr. Bovard to OFA.  In support of its complaint, OFA alleged:

  1. It owned trademark rights in the name Organizing for Action;

  2. Mr. Bovard’s www.organizingforaction.net is confusingly similar to OFA’s trademark;

  3. Mr. Bovard has no legitimate right or interest in the trademark; and

  4. Mr. Bovard registered the domain name in bad faith.

The arbitration panel found in favor of Mr. Bovard, concluding that OFA did not prove that it established trademark rights in its name prior to Mr. Bovard’s registration of the domain.

This makes sense as trademark rights are based on use, and OFA apparently did not use the Organizing for Action name before Mr. Bovard’s domain was registered. In fact, Mr. Bovard argued that he registered the domain at 5:46 a.m. on January 18, 2013, approximately nine hours before OFA legally become a group. Accordingly, the panel denied OFA’s request to transfer the domain name.

What should OFA have done differently? Clearly, before announcing the name change, OFA should have registered the domain. Unfortunately, OFA learned that conceptualizing a name is not the same as securing property rights in the name.

 

Nicholas Kanter is a Shareholder in our Business Litigation Practice Group. You may reach him via email: nkanter@lewitthackman.com. 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Wednesday
Apr032013

Franchising: A Big Portion of Today's Economy

Business Litigation Attorney EncinoFranchise & Business Litigation Attorney

by David Gurnick

818.907.3285

 

By year’s end more than 750,000 franchised outlets will be operating in the United States, employing more than 8.2 million people, generating over $800 billion in sales and comprising 3.4 percent of United States Gross Domestic Product, according to the International Franchise Association.

Why is franchising such a huge part of the American economy?  Here are some of the primary reasons:

1. Confidence: People want to own a business, but fear the risk of starting their own business. They feel more confidence in starting a business that is part of an established, successful system.

2. Brand Recognition: Consumers and the public feel more confident buying goods and services from a recognized brand. Franchising creates this brand recognition.

3. Synergy:  A system of franchisor and franchisees can research and develop better products and services, and better operating systems than an equal number of unaffiliated individual businesses.

4. Market Power: Participants in franchise systems can negotiate better supply arrangements, better leases, and in other respects, keep their costs down. This lets them lower prices to the public.

5. Better Advertising: Likewise, a system of franchisor and franchisees can market and advertise more effectively than an equal number of unaffiliated individual businesses.

6. Competition: New franchise concepts and brands, and franchises providing new categories of goods and services are created all the time. Others seek to duplicate and improve on pre-existing successful concepts, offering the public something a little different, a little better. This form of competition results in more variety and options for the public, and more franchised outlets offering goods and services.

7. Seemingly Limitless Growth Potential: A feature of franchising is that it permits seemingly limitless growth. In the large United States economy, and economies of the rest of the world, there is vast room for the establishment of ever more franchised outlets, both within a single brand, and including any number of competitive brands.

8. Multi-brand Channels: Many successful franchisors create or acquire multiple brands.  Think of Yum with its KFC, Pizza Hut and Taco Bell brands. Companies that get a formula right for their franchise program can apply their success to multiple brands and grow them all.            

9. Local Variation: Independent ownership allows businesses with nationwide reach to adjust to local standards. A franchisee in a small town in one part of the country, and another in a big city, can each adjust to the culture and customs of their own geography.

10. Motivation and Hard Work:  Franchisors and franchisees are entrepreneurs, motivated to work hard, deliver quality products and services and generate profit. Each franchise outlet is independently owned and operated. Each owner has an individual profit motive. People in franchising work hard to make their businesses succeed.

 

David Gurnick is a Certified Specialist in Franchising and Distribution Law, (State Bar of California Board of Legal Specialization). Contact him via email: dgurnick@lewitthackman.com.

 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Mar272013

California Family Law: How Do I Find a Divorce Lawyer?

Encino Tarzana Divorce LawyerChild Custody and Support Attorney Los Angeles

by Vanessa Soto Nellis
818.907.3274

San Fernando Valley Custody Lawyer Los Angeles

 

For many people thinking about divorce, the question of how to find a divorce lawyer can be as stressful as deciding to get married in the first place, or whether or not to take a job across the country.

Aggressive Divorce LawyerIt's no wonder. Divorce will cost you money in the short run – but your future, as well as your children's future, will also depend on how adept your attorney is with handling you, your spouse and the legal matters.

Here are three factors you should consider when hiring a divorce attorney:

 

Do you want a "bulldog" divorce lawyer?

 

Think again. Your attorney should care about you enough to listen to you and then explain your options in an understandable way. You want someone who not only garners respect from you, but also the respect of opposing counsel and judges. If s/he is argumentative or unnecessarily aggressive – that  just causes more conflict, which will cost you more money. Most clients prefer a solution-focused advocate.

You'll also want an attorney you feel comfortable with simply because you'll need to reveal highly personal information. If you can't explain your situation fully, the attorney can't represent you at full capacity. 

 

How much does a divorce cost?

 

Hidden Assets DivorceHere in Los Angeles, there's a full spectrum of fees (usually about $100-800 per hour in Los Angeles, plus expenses) depending on the experience of the attorney, and his or her reputation and professional ratings. Most family law attorneys require several thousands of dollars as an upfront retainer, which serves as security for their fees.

A Los Angeles divorce can cost you several thousand to hundreds of thousands of dollars. It depends on how complex your situation is, how organized you are in providing financial records, and whether or not you and your spouse can compromise.

If you and your spouse can be reasonable, my colleagues and I recommend divorce mediation to keep your costs down and resolve your matter quickly. Read my blog, Divorce in Los Angeles – 5 Things You'll Need to Know for more information.

 

What do you get in a divorce?

 

Be careful here, of hiring a divorce lawyer who tells you what you want to hear instead of giving you an honest opinion of what you, or you and your children, may be entitled to.

Ultimately a family law court will make the final decision. A good divorce attorney will know California family law inside and out, and will honestly tell you what you can expect and why.

Your divorce attorney should also know the judges in your jurisdiction, and the styles in which they run their courtrooms. There's nothing worse than hiring a disorganized lawyer who goes before a judge with little patience for wasting time. This could affect the final judgment, and cost you more in the long run.

 

These are the main factors to consider when hiring a divorce lawyer. Don't be afraid to ask questions in the initial consultation – the way the attorneys respond will give you a better idea of who is the best fit for you.

 

Vanessa Soto Nellis is a Divorce and Divorce Mediation Attorney in our Family Law Practice Group. Contact her via email: vnellis@lewitthackman.com.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Friday
Mar222013

Wage and Hour Trends – The Rise of the Intern

Employer Defense Lawyer Los Angeles

 

by Sue M. Bendavid
March 22, 2013

Employer Lawyer Los Angeles Google+

 

Interns. Remember the good old days when as an employer, you could expect them to arrive punctually, help out in the day-to-day operations of your business, and be asked for little in return but job training (which used to be considered invaluable for those trying to break into the biz) and a glowing reference?

Those days may be long gone, if trends in employment litigation are any indication – and these trends aren't just in individual claims. Class actions are being brought against several very high profile employers.

In February 2012, a former Harper's Bazaar intern filed suit against the Hearst Corporation, claiming 40-55 hour work weeks without compensation. A New York Court later granted class certification – meaning approximately 3,000 former interns were joined in the suit against the media mogul.

Last summer, two interns working on the film, Black Swan, expanded their wage and hour claim to include all unpaid interns working for Fox Entertainment Group over the last two years. In December, talk show host Charlie Rose agreed to a six figure settlement for 190 unpaid interns who worked for The Charlie Rose Show between 2006 and 2012.

Also in December, a former assistant football coach initiated a class action claim against Hamilton College, alleging the school misclassified him and other plaintiffs as interns, paid them sums that didn't meet minimum wage, failed to pay overtime, and failed to pay split shift pay.

The above suits were all filed in New York, but given this increase in litigation initiated by interns, it may be time to discuss what an internship is in the legal sense, and how California employers can reduce the risk of claims.

 

How to Avoid Wage and Hour Claims by Unpaid Interns

 

What is an internship? Ideally, it's an educational experience, particularly if it's an unpaid internship. The United States Department of Labor's Wage and Hour Division (WHD) has very specific guidelines regarding hiring interns and offering internships on an unpaid basis.

Whether you're running a for-profit business or a not-for-profit organization and are thinking about getting an intern to help, you should consider what you're offering vs. what you'll be getting in return. The WHD provides a six point test to help employers decide if they need to compensate interns or not.

 Ask yourself these questions:

  1. Will you provide training similar to that provided in an educational environment? You should provide a learning environment, not a work environment.

  2. Is the internship you're offering a benefit to the intern? Will the student gain valuable "real job" experience, or will they be doing the "busy work" no one else wants to do?

  3. Will the intern displace a regular employee? If yes, you should compensate the intern. Otherwise, make sure the student is working under close supervision of your staff.

  4. Will you as an employer, be gaining any advantages from bringing in an intern? If yes, you may need to pay your intern. If your work is actually impeded by the presence of the intern, chances are better that you'll be providing more of the educational environment the WHD recommends.

  5. Will the student be entitled to a job at the end of the internship? If your answer is yes, that actually encourages the intern to work, rather than learn, which could lead to potential wage and hour claims.

  6. Does the intern understand that s/he is not entitled to wages? You should make clear up front, whether or not you will be compensating the intern for her/his time.

The six elements satisfy federal criteria. Not long ago, The California Division of Labor Standards Enforcement, or DLSE (commonly known as the Labor Board), adopted these six criteria as well (and disavowed certain other factors previously used by the DLSE).

This was according to a DLSE opinion letter handed down April 7, 2010:

The DLSE has consistently applied federal interpretations of statutes, regulations, and case law under the FLSA [Fair Labor Standards Act] where there is no inconsistency with State laws…Since DOL's [Department of Labor's] 6-point formulation is derived from the early U.S. Supreme Court's opinion in [the] Portland Terminal case and has been applied (with varying degrees of deference) by the federal appellate courts, it is reasonable and appropriate for the DLSE to look to the factors used by the DOL in determining the exemption for purposes of coverage of State minimum wage coverage for trainees/interns in the absence of a State statute or regulation on the matter.

It's important for employers to correctly classify their employees, independent contractors and interns. Misclassification can leave you open to claims for unpaid wages – including a failure to pay minimum wage and unpaid overtime, waiting time penalties (for not paying wages on a timely basis), and other penalties and tax claims. .

When all is said and done, remember that the person who should most benefit from an unpaid internship is the student. That means you are offering real educational opportunities, and not just taking advantage of getting some extra tasks done, or of lightening the work loads of your regular employees.

 

Sue M. Bendavid is a Wage and Hour Attorney who protects and defends employers from employee claims. For more information about wage and hour issues and avoiding employment litigation risks, contact Ms. Bendavid via email: sbendavid@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Thursday
Mar142013

Employers: Use Updated I-9 for New Hires

Employer Lawyers Los Angeles

  

by Sue M. Bendavid & Nicole Kamm
March 14, 2013

 

Editor's Note: A new I-9 manual has been released, which provides information for employers regarding the more obscure procedures involved in completing the updated Employment Eligibility Verification form. Click: I-9 Manual for the pdf version, available on the U.S. Citizenship and Immigration Service website.

 

The U.S. Citizenship and Immigration Services (USCIS) published a revised Employment Eligibility Verification Form I-9 for use. All employers are required to complete a Form I-9 for each employee hired in the United States.

Improvements to Form I-9 include new fields, reformatting to reduce errors, and clearer instructions to both employees and employers.

Effective 03/08/13:

  • Employers should begin using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications. 

  • Employers may continue to use previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09) Y until May 7, 2013. 

  • After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N.

 

English and Spanish versions of the new I-9 form are available on the USCIS website. However, the Spanish version is only for reference; Spanish-speaking employees must still complete the English version of the form.

As a reminder, employers generally must inspect original documents submitted by the employee within three days of hire. It is recommended that copies of the documents and the completed Form I-9 be filed together in a location separate from the employee's personnel file. The I-9 should be retained for three years after termination.

 

Sue M. Bendavid and Nicole Kamm of our Employment Practice Group represent employers in matters of compliance and employee claims. Contact them via email: sbendavid@lewitthackman.com, or nkamm@lewitthackman.com, for more information.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
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