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Wednesday
Mar132013

Five Tips for Developing and Protecting Your Trademarks

Business Litigation & Trademark Enforcement

 

by Nicholas Kanter & Tal Grinblat
March 13, 2013

 

A trademark is a word, phrase, design, logo, sound or color used to identify the source of a party’s goods or services. For many companies, their trademark can be their most valuable asset because of the association consumers have with the products or services bearing the particular mark.

For example, when a person sees a computer bearing Apple’s iconic logo, that person associates the image with a company known for manufacturing high quality computers, phones and tablets with certain user-friendly functions and qualities for which Apple is known.  This association is the result of Apple’s extensive advertising, promotion and sales of its Apple-branded products.

Before adopting a trademark and developing goodwill in the mark, it is important to research whether there are any significant obstacles that may prevent using the mark in the future. If after conducting the search you determine to move forward, it is equally important to protect your mark to prevent others from using or adopting your mark without permission.

 

How to Develop and Protect Your Trademark

 

1. Perform a Trademark Search:

In the U.S., trademark rights are acquired based on use. With certain exceptions, the first person to adopt and use a particular trademark generally obtains superior rights to use that mark over all other junior users.

Before adopting a mark, it is a good idea to order a comprehensive trademark search report. A search report will tell you about others that may already be using your desired trademark (or similar trademark). Knowing who else may be using your desired mark can help you assess the risks of moving forward with the mark, or prompt you to come up with another trademark.

 

2. Register Your Trademark:

If the trademark search report does not reveal any significant obstacles to the use of your desired trademark, you should apply to register your mark with the United States Patent and Trademark Office (USPTO). Although trademark rights are based on use, a federal registration on the Principal Register of the USPTO has many significant benefits, including a legal presumption that you own the registered mark and your exclusive right to use the registered mark for the goods/services for which your mark is registered nationwide.

If you sell or plan to sell products or services under your trademark outside the U.S., you can protect your mark by registering it with the appropriate trademark agency in each applicable country. This can be done by filing a trademark application in each desired country, or by filing a single application via the Madrid Protocol, and then seeking to extend the protection granted to the other countries selected. 

 

3. Use and Promote Your Trademark:

The primary purpose of a trademark is to identify the source of the goods/services you’re selling. Therefore, it is important to use and promote your trademark so that the public associates the mark with you, and the goods/services you sell.

Non-use can lead to the cancellation of your registration.  Moreover, the strength of your mark, and your right to exclude others from using your mark, will increase with greater public recognition.

 

4. Make All Required and Optional Post Registration Filings:

To maintain the trademark registration, you must make certain required filings. In the U.S., the owner of a registration must file a “Declaration of Continued Use” between the 5th and 6th year of the registration. At the same time, the registrant can file a “Declaration of Incontestability” to make the trademark registration “Incontestable.”  In addition, a trademark registration must be renewed every 10 years by filing a renewal application between the 9th and 10th years of registration.  

    

5. Police and Enforce Your Rights in Your Trademark:

As the owner of a trademark, you have the obligation to police your mark to prevent unauthorized third parties from using it. Failure to do so can lead to losing the exclusive right to use your mark.

If someone else is using your mark without authorization, you can send a “cease and desist” demanding that the person cease using your mark. If the unauthorized user applied to register your mark, you can oppose the registration of the mark by filing an “Opposition” with the Trademark Trial and Appeal Board. Finally, you can file a lawsuit for trademark infringement if the unauthorized user refuses to stop using your mark.

 

Nicholas Kanter is a Business Litigation Attorney experienced in intellectual property enforcement and defense litigation. Contact him via email: nkanter@lewitthackman.com for more information regarding intellectual property enforcement.

Tal Grinblat is a Trademark Attorney and Certified Specialist in Franchise and Distribution Law (California State Bar Board of Legal Specialization). Email: tgrinblat@lewitthackman.com for further details on establishing trademarks and franchises, and protecting trade secrets.

 

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.
Tuesday
Mar052013

Employers: New Posting Requirement & Expanded FMLA Regs

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

 

Marking the 20th anniversary of the federal Family and Medical Leave Act (FMLA), the US Department of Labor (DOL) issued new FMLA regulations on February 6, 2013. 

The regulations, which take effect Friday, March 8, 2013, expand FMLA protections for military family members and airline flight crews. The regulations also clarify intermittent leave calculations, and remind employers of their confidentiality obligations under the Genetic Information Nondiscrimination Act (GINA).

Highlights from the new FMLA regulations are summarized below:

 

Military Family Leave

 

Current FMLA regulations provide “qualifying exigency” leave for eligible family members of certain military personnel to address issues related to certain military deployments. The revised regulations clarify that qualifying exigency leave is intended for family members of persons serving in the regular Armed Forces, National Guard or Reserves who are on active duty or called to active duty in a foreign country.  

Additionally, a new category of qualifying exigency leave – parental leave -- has been added. Parental care exigency leave may be utilized to make arrangements for care of parents of military members.

 

Military Caregiver Leave

 

FMLA regulations currently provide leave to care for certain military members with serious injuries or illness. 

Military caregiver leave has been expanded to include leave to care for covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness. A covered veteran is an individual who was discharged or released under conditions other than dishonorable in the five-year period prior to the date the employee’s military caregiver leave begins.  

 

Intermittent Leave

 

Regarding intermittent leave, the new regulations clarify that employers must use the shortest increment of time the employer uses to account for other forms of leave, provided it is not greater than one hour. For example, if an employer allows an employee to take vacation in 15-minute increments, it must allow employees to take FMLA in 15-minute increments. 

 

Airline Flight Crew Eligibility

 

The new regulations state airline flight crew employees meet the FMLA hours-of-service eligibility requirement if they:

(1) have worked or been paid not less than 60 percent of the applicable total monthly guarantee (i.e., not less than 60 percent of the minimum number of hours an employer has agreed to schedule the employee), and

(2) have worked or been paid for not less then 504 hours during the previous 12 months. 

Airline employees who are not flight crew members continue to be covered under the general FMLA hours-of-service eligibility standard (1,250 hours in the preceding 12 months).

 

Genetic Information Nondiscrimination Act (GINA)

 

The regulations include a reminder to employers of their obligation to comply with the confidentiality requirements of GINA to the extent records and documents created for FMLA purposes contain family medical history or genetic information. 

Under both FMLA and GINA, employee information relating to medical certification or family medical history must be maintained as confidential medical records in separate files from the usual personnel files, and may only be disclosed under certain limited circumstances.

 

New FMLA Poster/Forms

 

In addition to the above, the DOL has published an updated FMLA poster for covered employers (i.e., employers with 50+ employees), as well as several updated (optional-use) forms. The new poster, which must be posted by March 8, 2013, is available on the DOL website. California employers should use caution when using the DOL’s forms, which may not be compliant with state law.

 

FMLA covered employers should review their policies and forms to ensure consistency with the new regulations. Employers should confirm they are properly accounting for intermittent leave (increments of one hour, or shorter if other forms of leave are permitted in shorter increments). Employers should be aware of and provide qualifying exigency and military caregiver leave when needed. 

Finally, covered employers should replace their current FMLA posters with the revised poster and review recordkeeping policy and practice to ensure compliance with FMLA and GINA.

 

Nicole Kamm is an Employment Attorney who helps employers minimize the risk of wage and hour, harassment, discrimination and FMLA claims. Contact her via email: nkamm@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.
Tuesday
Feb262013

Brown Study: Bad Breaks for Older Bikers

Personal InjuryMotorcycle Accident Lawyer

 

 

by Andrew L. Shapiro

(818) 907-3230

 

Researchers at Brown University recently published results of a six year study of emergency room statistics in the journal Injury Prevention: Older motorcyclists suffer serious injury when involved in accidents.

In fact, bikers pushing 60 or older are 250 percent more likely (middle-aged riders ranking at 66 percent more likely) to suffer more than scrapes and bruises in a smashup, than motorcyclists half their age. Senior riders tend to get more upper torso fractures, internal organ injuries and brain traumas.

And according to the Los Angeles Times, other studies show an 87 percent increase between 2001 and 2007, in injuries for motorcyclists over 65, while fatalities rose 145 percent. The Center for Disease Control says that 34K motorcyclists were killed between 2001 and 2008, and an additional 1.22M were treated in U.S. emergency rooms for motorcycle accident injuries.

 

Avoiding Serious Motorcycle Injury

 

Here in California, the Department of Motor Vehicles offers two types of licenses. The M1 license is for drivers operating any type of motorcycle; the M2 license is for motorized bicycle and moped drivers. Applicants under 21 must complete a state-approved motorcycle safety course.

Motorcyclists are required to wear a helmet in California – but gloves, boots and heavier clothing to minimize injury are a good idea. In fact, some Brown research critics claim younger bikers suffer more abrasions and contusions than their older counterparts, because they don't buy the proper protective-wear.

Lane splitting, lane sharing or white-lining as it is sometimes called – is still legal in California. However, the state Highway Patrol offers some safety guidelines regarding speed, the environment, and other factors. The CHP website advises, Lane splitting by motorcycles is not illegal in California when done in a safe and prudent manner.

 

More Fracturing Figures

 

The Times article also cites a quarter of all U.S. motorcyclists are over the age of 50, and that this older segment of riders has doubled since 1990.

The Brown study publishers say 35 percent of this group required hospital treatment, while only 25 percent of middle-aged riders and 15 percent of young riders involved in accidents suffered injuries serious enough to require hospitalization.

 

Andrew L. Shapiro is a Los Angeles Motorcycle Accident Lawyer and the Chair of our Personal Injury Practice Group. Contact him via email: ashapiro@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.

Tuesday
Feb192013

California Wage & Hour Violations – Residential Care Facilities Investigated

 

by Sue M. Bendavid
February 19, 2013

Employer Lawyer Los Angeles Google+

 

Three California district offices of the United States Department of Labor are investigating employers of residential care facilities. Initial results from the investigations indicate approximately 200 employees may be due more than $800K from residential care employers.

The investigations began in Sacramento in October, but expanded to include facilities in San Francisco and West Covina.

The Department of Labor says there are significant concerns, including:

  • Failure to count all hours of work time
  • Interrupted personal time
  • Interrupted sleep
  • Interrupted meals
  • Failure to compensate for training
  • Failure to pay for pre and post shift duties, and
  • Failure to pay overtime wages

 

How Should Employers Avoid Wage and Hour Claims?

 

The state minimum wage in California and Los Angeles remains $8/hour, though certain cities within the state mandate higher rates. Under federal law (the FLSA) nonexempt employees who work more than 40 hours per week must receive overtime pay. The state has daily overtime rules (for employees who work more than 8 hours in a day).

When training or seminars occur outside of an employee's regularly scheduled time, you'll need to compensate for attendance at those sessions with limited exception.

Under California law, you need to provide 30 minute duty-free, uninterrupted meal breaks, and cannot ask employees to perform duties during these breaks. In the case of a resident care facility where the residents often interrupt your employee with requests for assistance, you'll need to pay the employee for the time worked and also consider whether a meal period penalty is required.

Some employees work overtime by necessity, even though the time is not authorized by you the employer. You'll need to compensate for this time, known as work suffered or permitted. This overtime work usually occurs when a facility is short-staffed, or when employees choose to take work home rather than stay on the premises after their regular work schedule.

California's Industrial Welfare Commission instituted a series of Wage Orders to protect employees in 17 industry groups. As an employer, it's important for you to know which wage order governs your business. Residential care workers are generally covered under Wage Order #5, but if you have questions about California employment law or the wage orders that affect your employees, feel free to contact me.

 

Sue M. Bendavid is the Chair of our Employment Practice Group, who exclusively represents employers. She can be reached 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.
Wednesday
Feb132013

The 10 Biggest Mistakes Franchisors Make

Business Litigation Attorney EncinoFranchise & Business Litigation Attorney

 

by David Gurnick

818.907.3285

 

 

Thousands of franchise companies offer countless goods and services in the United States. Many are successful in growing their brands, delivering quality goods and services to the public, and generating profits for franchisees and for themselves. Many, even franchisors  with long histories, are not as successful as they could be.

Here are some of the biggest mistakes franchisors make.   

1. Franchising Without Enough Capital

Why do some franchises fail? Franchisors who do not have sufficient funds in their own company, are unable to screen franchisees, perform the supervision and deliver the assistance needed for the system to succeed. Also, lack of funds makes the company appear financially weak. These franchisors are forced to lower their standards and are unable to assert proper contractual authority with franchisees. Lack of capital can be destructive to a franchise system.

 

2. Underestimating Costs 

There is temptation to show prospects that the investment to start a franchise is low. Franchisees depend on the franchisor's costs estimates being accurate. If costs are underestimated, franchisee recruits will become dissatisfied when they learn their true costs, and some will not have enough funds. Franchisors should be candid in estimating the investment costs, and should build in a margin for unanticipated expenses and costs.

 

3. Making the Franchise Agreement Too Strong or Too Weak 

Overbearing franchise agreements can scare away potential franchisees without providing the franchisor a meaningful benefit. Many over burdensome terms will never be enforced, and some, if the franchisor tried to enforce them, would be found to be unconscionable. Conversely, franchisors should review the agreement forms regularly, evaluate which subject areas address true risks for the company and system, and selectively strengthen those provisions.

 

4. Expanding Too Fast and Too Wide 

The chance to expand is intoxicating as it gives the appearance of success to the brand and system. But moving too fast, or having distant locations too soon, before the franchisor has infrastructure, support systems, and understanding of issues in different venues, leaves the franchisor unable to properly manage, supervise and assist franchisees. This mistake can destroy even a good franchise concept.

 

5. Insufficient Screening and Training 

The lure of initial fees and new locations tempts franchisors to lower standards for new franchisees and not devote enough attention to training. This results in franchisees who are hard to deal with and represent the brand poorly.

Franchisors should develop a profile of their preferred franchisees, addressing education, experience, motivation, cooperation, financial and other characteristics, and stick to that profile in recruiting and in evaluating potential transferees of franchised units. A significant investment in background checking, getting to know potential franchisees and providing thorough training to new franchisees in the system’s history, goals, and operations, will improve the prospects for everyone’s success.

 

6. Allowing Poor Locations 

This is really a variant of expanding too fast. Compromising standards as to the locations of franchises results in unsuccessful locations, disputes and site failures. This takes up more of the franchisor's time, costs money, and tarnishes the brand.

 

7. Quick, Do-It-Yourself Changes to the Franchise Agreement 

Negotiating changes to the franchise agreement and hurriedly preparing amendments and addendums can result in misunderstandings, ambiguities and inadvertent violations of franchise laws, all of which can lead to costly disputes. It is less costly to allow the time required for thoughtful drafting of amendments.

 

8. Failing to Deliver Value and Service to Existing Franchisees 

Too many franchisors come to take their successful existing franchisees for granted, enjoying the revenue they deliver and not delivering value in return. Franchisors should deliver continuous value and service, including marketing, support, updating of products. An existing franchisee should feel that they get value equal to or exceeding the royalties they pay, so that they remain satisfied and grateful to be part of the franchise system.

 

9. Squeezing More Revenue From Franchisees Without Considering Their Profitability 

For a franchise system to work, franchisees must be profitable. Franchisee profitability and profit growth should be as much a goal as the franchisor's own profitability.

 

10. Failing to Identify and Protect the Company's Intellectual Property 

A franchisor's brand (trademark) and confidential methods are among its most valuable assets. Failure to protect these devalues the system. The company's intellectual property should be identified and protected both contractually, and in operating procedures required of franchisees and within the franchisor company.

 

 

David Gurnick is certified as a Specialist in Franchising and Distribution Law, by the 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.

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