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Thursday
Feb162012

Intellectual Property Law - The Madrid Protocol Promotes Global Trademark Protections

 

Franchise Agreement LawyerState Bar Certified Specialist, Franchise & Distribution Lawby Tal Grinblat
818.907.3284

 

American based companies wanting to protect their trademarks internationally have been able to do so fairly easily since 2003, when the United States adopted the Madrid Protocol.

The Madrid Protocol is an international treaty currently recognized by 84 countries. It allows a U.S. based business that has a pending trademark application or registration in the U.S. Trademark Office apply to register the identical mark in other member countries of the Protocol, using a fairly simplified procedure.

The benefits of using the Protocol are fairly extensive. Instead of applying to register a mark separately in various countries, the applicant can file one application with the US Trademark Office which then automatically gets sent to the countries designated.

You no longer need to hire local trademark counsel in individual territories (unless objections are raised to the application at any stage). You also pay for the applications in US currency, thereby eliminating the need for wire transfers. Once an international registration is issued, there is also a simplified process to renew the trademark and a simplified manner to record address changes and other information, such as a sale of the mark to other parties. In addition, after an international registration issues, it’s possible to request an extension of protection to other member countries without having to start the process again.

Which countries are members of the Madrid Protocol? They range from Albania, Bhutan and China, to Uzbekistan, Vietnam and Zambia – but you can access the complete Madrid Protocol List of Countries here. Application fees vary by country.

 

Your Trademark: Meeting International Requirements

 

Your international application must be based on a U.S. (or local) application or registration, called a "basic application" — you cannot file internationally without it.

  1. The mark and the owner of the international application must be the same as the mark and the owner of the basic application.
  2. The international application must include a list of goods and services identical to or more narrow than the list on the basic application.
  3. The applicant must pay the U.S. certification fees at the time of submission as well as the application filing fees for all countries to which protection is sought.
  4. The applicant must identify at least one Contracting Party for an extension of protection.

If the application meets these requirements, the World Intellectual Property Organization (WIPO) located in Geneva, Switzerland, will register your mark, publish it in the WIPO Gazette of International Marks, and send you a certificate as the "holder of the international registration."

The International Bureau will then notify the Contracting Parties you designated in the international application. The designated countries will then review the application (as they would review any other application filed directly with them). And if no impediments or objections are raised, a registration ultimately is issued and forwarded to the applicant.

Due to the pitfalls involved in this multi-step process, trademark owners are encouraged to consult with experienced trademark counsel to provide guidance on, explain the process and assist with filing the international application. And if any objections or impediments are raised during the prosecution, trademark counsel can also direct the applicant to local counsel in the countries involved for assistance.

Tal Grinblat is an Intellectual Property Attorney, and a Certified Specialist in Franchise and Distribution Law, as designated by the State Bar of California's Board of Legal Specialization. If you have questions regarding intellectual property, trademark protection or franchising a business, call him at 818.990.2120.

 

 

 

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
Feb142012

Damages and Compensation in a Personal Injury Lawsuit

Injury AttorneyInjury Attorney Los Angeles 

 

by David B. Bobrosky
(818) 907-3254

 

I speak to many potential clients on a weekly basis, many of whom have suffered a car accident injury. The most common questions I hear are “what am I entitled to if I have been injured in an accident?” or “what is the driver responsible to pay after a car accident?”  

In this post, I am going to explain the compensatory damages available to you if you have been involved in a car accident.  

Compensation for InjuryWe commonly group the types of damages into two classes: 

  1. Economic Damages
  2. Non-Economic Damages

 

Economic Damage Compensation

 

These damages are what we typically call “out of pocket” expenses. The most common types of personal injury damages in this class include: 

  • Property Damage - This category includes those to your vehicle, and any personal items in the vehicle that were damaged or destroyed in the accident. 

  • Loss of Use Damages - These are damages for not being able to use your property because of the accident. The most common item in this category is the amount you spend on renting a car. 

  • Medical Expenses, Past and Future - If you have health insurance, this is more than your co-pay. It includes the full amount of your bill. In some states, such as California, this is limited to the amount paid by your health insurance company.

    This category, if you have health insurance, is essentially recovered to pay back your health insurance company since the bills were incurred due to the negligence of another. Although your attorney can usually negotiate a discount off of the reimbursement since you are essentially collecting the funds for the health insurance company. 

  • Loss or Earnings - If you missed time from work and/or will miss time in the future, you are able to recover for that lost time. If you own your own business and can prove that you lost profits, or will lose profits in the future from the accident, then you can recover for these as well.

Pain and Suffering: Non-Economic Damage Claims

 

Wrongful Death LawyerThese damages are what we typically call “general damages.”  They are known by most people as damages for “pain and suffering.” 

Non-economic damages most often include compensation for: 

  • Physical pain, impairment and disfigurement from physical injuries sustained in the accident. 

  • Mental suffering and emotional distress related to the accident and physical injuries. 

  • Loss of enjoyment of life due to the injuries suffered. 

  • Grief, anxiety, humiliation and inconvenience from the accident. 

Non-economic damages are often the biggest damages in a case. If you’ve been burned by a defective product or attacked by a dog, the medical expenses may not be astronomical because such injuries do not typically require future medical care. 

However, the general damages for the disfigurement and emotional distress from the permanent scarring for the rest of your life will be significant. 

Likewise, if you are catastrophically injured or if a loved one is killed in an accident, the non-economic damages for your loss of enjoyment of life and grief over your loss will be the major part of your personal injury settlement, or claim at trial. 

The claims discussed above are not an exhaustive list of the damages available in every case, but they are the most typical. And certainly, not all of these damages apply to every personal injury case. But this should give you a good idea of what’s available to recover if you are unfortunately injured by the negligence of someone else. 

David B. Bobrosky is an Accident Injury Attorney in our Personal Injury Practice Group. You can reach him via e-mail: dbobrosky@lewitthackman.com, or by calling 818.990.2120.

 

 
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
Feb092012

Gay Marriage | Proposition 8 Serves No Purpose, Says 9th Circuit

Encino Tarzana Divorce LawyerFamily Law Attorney

by Vanessa Soto Nellis
818.907.3274

San Fernando Valley Custody Lawyer Los Angeles

 

It's an election year. As though the economy isn't enough for candidates to fight about, California's 9th Circuit Court added another topic to the political frenzy: Proposition 8, the 2008 voter-approved ban on same-sex marriage

On Tuesday the federal appeals court decided 2-1 that California's Prop 8 is unconstitutional. Though the opponents of Prop 8 enjoyed a small victory this week, the battle is far from over. Because, first and foremost, it's an election year. 

But aside from that fact, there are other questions involved around whether or not Prop 8 should be deemed valid. Justice Stephen Reinhardt wrote, "Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only…" 

The constitutional question on the docket? Whether or not Prop 8 violates the 14th Amendment of the U.S. Constitution. According to Judge Reinhardt's written statement, it does: 

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage,' which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California. . . 

Keep in mind that Prop 8 was approved by just over 52 percent of California voters in 2008. 

The gay marriage issue in California is unique because it was a right that previously existed, and California has domestic partner laws. Because of this, some doubt that the U.S. Supreme Court will review the case. 

Regardless, we can expect those running for President to weigh in until November, which should make for some interesting commentary. 

 

Vanessa Soto Nellis is a Los Angeles Divorce Attorney and Shareholder in our Family Law Practice Group. You can reach her by calling 818.990.2120.

 

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
Feb072012

California Small Claims Court: An Effective Tool for Smaller Personal Injury Cases

Personal Injury Attorney 

by David B. Bobrosky
(818) 907-3254

 

Insurance companies are manipulating the civil justice system, and most people don’t have a clue that it’s happening.  

For years insurers have complained about the alleged “frivolous lawsuits” that are clogging the system.  But in reality, they are to blame for much of it in their efforts to discourage all claims no matter how fair or reasonable. 

 

Insurance Claims Process – The Unfair Game

 

Insurance companies realize that they can make it so expensive to litigate a smaller case that it can be cost prohibitive.  So rather than offer a reasonable settlement on cases they know deserve it, insurance companies refuse to offer anything, or will low ball claimants with offers less than the reasonable medical expenses they’ve incurred.  

Many times claimants, who would have settled for just paying the medical bills or slightly more, resort to seeking counsel. Once in litigation, insurance companies have their in-house counsel grind the cases and force the claimants all the way through written discovery, depositions and ultimately trial.  At that point, litigation costs usually exceed what claimants get from a jury.

This is where small claims court can be the equalizer.

Small Personal Injury Claims Advice

 

We get several calls per month pertaining to mild injuries suffered in car accidents.  Many times they are neck or back strains that have healed with a few months of physical therapy or chiropractic treatment.  These cases are just too small for our firm to handle.  In fact, because of insurance companies, they are becoming too small for most attorneys to handle.

We have advised many of our clients that they will be better off filing actions in small claims court.  This is where claimants can level the playing field against the biggest defendants without having to incur significant costs and attorney fees. 

Heather Peters proved this recently when she took Honda to small claims court over allegations that the automaker misrepresented the fuel economy of the Honda Civic Hybrid.  

Rather than participating in a class action suit that would have yielded her about $100 plus rebates toward a new car, Peters went her own way. She received an award of just under $10,000 – much more than participants in the class action case – in a California small claims court

There are many other advantages to small claims court: 

  • No attorneys are allowed.  Therefore, everyone is equal. 

  • Costs of pursuing claims are thousands of dollars less than a traditional Superior Court action. 

  • Cases are often heard within a couple of months, compared to more than a year for an average Superior Court case.

  • Rules of evidence are relaxed.  For the most part, claimants can just ‘tell their story.’ 

  • Cases are decided by Judges, Court Commissioners or Volunteer Judges, rather than angry jurors who do not want to be on jury duty.

  • The maximum award for bodily injury claims where the defendant is insured is $7,500.  The maximum award for most other individual claims recently increased to $10,000.

Small claims can be very effective in personal injury cases.  When litigation will be cost prohibitive, I advise the client of the pros and cons of small claims court.  If they choose to go to small claims court, I often times guide them through the process and help them prepare for their hearing.  

In every case I’ve helped an injured party, a reasonable award has been obtained.  Often times the award is as high, or higher, than a jury would award – with much less time, money and aggravation spent.  Thus, this leaves the client with more money in his or her pocket. 

California Small Claims Appeals: Insurance Companies Prolonging the Litigation 

 

Of course, reasonable, efficient awards are not good enough for insurance companies, so  they appear to appeal every small claims award in favor of a claimant – no matter how fair or reasonable.

A defendant who loses a case is entitled to one appeal of a small claims matter.  The appeals are heard by Superior Court judges, and attorneys are allowed in these proceedings. 

An appeal is still advantageous, however, compared to full blown litigation. Appeals are usually heard within 45 days, and depending on the judge can be more informal than a traditional court trial. For a basic personal injury matter, the appeals are often completed in less than a day. Even if an attorney must be hired, it is much cheaper to do so for a small claims appeal than full litigation.

In the appropriate case, small claims court can be a very effective tool for consumers.  It is a place where David can truly slay Goliath, and should be used more often.

David B. Bobrosky is a Los Angeles Personal Injury Attorney at our Firm. Contact him at dbobrosky@lewitthackman.com, 818.990.2120.

 

 
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
Feb032012

Will Madonna Sing “Girls Gone Wild” at the Super Bowl?

 

Business Litigation Los AngelesLos Angeles Business Litigation AttorneyFebruary 3, 2012
by Nicholas Kanter


Joe Francis, the founder of Girls Gone Wild, just sent a cease and desist letter to Madonna, NBC and the National Football League threatening to file a lawsuit if Madonna sings a track from her new album entitled “Girls Gone Wild, ” according to TMZ.com. In the letter, Francis claims Madonna’s use of the name violates his trademark rights in the brand.

Should Madonna be concerned?

Francis may have an uphill battle in light of the Ninth Circuit’s ruling in Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002).  The Mattel case involved Mattel’s famous Barbie doll and the Danish band Aqua’s song entitled “Barbie Doll.”  Mattel sued the music companies that produced, marketed and sold “Barbie Girl,” including MCA Records, Inc. and Universal Music International.  Mattel claimed that the use of “Barbie” in the title of the song “Barbie Doll” infringed its trademark.

The Ninth Circuit followed a test developed by the Second Circuit in Rogers v. Grimaldi, 871 F.2d 994 (2nd Cir. 1989) which involved a claim by the actress Ginger Rogers against the film “Ginger and Fred”; a movie about two Italian cabaret performers who made a living by imitating Ginger Rogers and Fred Astaire. 

The Rogers court “concluded that literary titles do not violate the [Trademark Act] ‘unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.’”  Mattel, 296 F.3d at 902.

Using the Rogers’ test, the Ninth Circuit concluded that the use of “Barbie” in the song title “Barbie Doll” did not infringe Mattel’s trademark.  Id.  The Ninth Circuit held: “the use of Barbie in the song title clearly is relevant to the underlying work, namely, the song itself.  As noted, the song is about Barbie and the values Aqua claims she represents.  The song title does not explicitly mislead as to the source of the work; it does not, explicitly or otherwise, suggest that it was produced by Mattel.  The only indication that Mattel might be associated with the song is the use of Barbie in the title.”  Id.

Based on the Mattel decision, Francis may have a difficult time prevailing on an infringement claim unless: (1) the title “Girls Gone Wild” has no artistic relevance to Madonna’s song; or (2) if it has some artistic relevance, Madonna’s song explicitly misleads consumers  as to the source of the song.  Madonna’s “Girls Gone Wild” track has not been released yet, so it is too early to say whether Madonna can satisfy the first prong of the test.  However, given Madonna’s popularity, it is unlikely that consumers will believe that Joe Francis wrote the song. 

Will Madonna perform “Girls Gone Wild?”  Will Francis sue if she does?  Will Tebow’s attendance at the Super Bowl overshadow the game itself?  We’ll have to wait until Sunday to see. 

 

Nicholas Kanter is a Los Angeles Business & Civil Litigation attorney whose practice focuses on intellectual property, employment, franchise & distribution, and real estate matters. You may reach him by calling 818.990.2120, or by e-mail: 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.

 

 

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120