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Friday
Feb032012

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

 

Los 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.

 

 

Friday
Feb032012

Internet Gambling: A California Plan B? 

 

 

by Stephan Mihalovits

Maybe it’s just me, but I would rather not see California open up a Pandora’s Box of internet gambling without a full and frank discussion beforehand.

As legislators in the Senate quietly move toward an internet gambling bill this year, there is a chance that is exactly what the state will do. But are we ready to gamble online?  As California’s insolvency situation enters its umpteenth year, the focus is on red ink, not the full potential benefits or consequences of internet gambling.

As a result of a recent U.S. Department  of Justice opinion, states across the country are looking to use internet gambling to fill budget holes. The DOJ concluded states are free under federal law to create internet lotteries within their states, reinterpreting the 1961 Wire Act to only prohibit intrastate gambling involving sports betting. Thus, with federal law out of the picture, states can legislate internet gambling within their borders and together with other states.

States like New Jersey, Connecticut, and Nevada have begun the initial legislative process. Governor Chris Christie said this month, “I think New Jersey should be in that business, I think we should be an epicenter for that business, but I want to do it right.”

Internet Gaming = California Dreamin'?

 

California is pursuing its own legislative efforts. Last year, two bills were introduced in the Senate, but both stalled. There is buzz in Sacramento that 2012 will provide the fiscal conditions necessary to pass an internet gaming law (a $13 billion deficit is projected for 2013). But for now Gov. Jerry Brown is playing cool to the idea.

But, in my opinion, the governor’s coolness is more of a poker face.

Based on Gov. Brown’s repeated calls for temporary tax increases as a budget solution, it’s clear his first preference is to pass a pair of November ballot initiatives that would raise taxes for five years. If both pass, he may nix the online gaming idea entirely or sign only a limited internet gambling bill. The problem is this strategy depends on voters voting for tax increases. Based on past precedent, I highly doubt voters will vote for them, especially the regressive sales tax.

What is Gov. Brown’s plan when the tax increases fail?  Answer: Plan B (and C, D, and E). I’m no psychic, but I believe November 2012, Gov. Brown will for the first time advocate his true position: he would rather have more revenue than more cuts. He will advocate some form of internet gambling.

But California lawmakers do a disservice to Californians by waiting to discuss the issue. Some people view gambling as taboo: a dangerous practice that leads to addiction, alcoholism, financial distress, and fatherless children. If our state is about to put gambling in our homes (and on our smartphones), our leaders should begin an honest and open discussion now.

There are plenty of legal and moral issues to discuss.

New technology will not limit internet gambling to stationary computers. Rather, our smartphones will become portable devices for cash money gambling. Smartphone gaming giant Zynga Inc. is pondering whether  or not to bet on online gaming.  This could lead to unforeseen harms. The easier it is to gamble, the easier it will be to make a terrible financial mistake. Imagine your 7-year old reaches to play a game on your iPhone and ends up losing thousands in a poker game. Or imagine a recovering gambling addict being sucked back in to his addiction through the ease of smartphone technology.

While Sacramento ruminates over more internet gambling, shouldn’t our leaders be preparing us for these foreseeable ethical issues?

Stephan Mihalovits is a Los Angeles Business Litigation Attorney. You may reach him by calling 818.990.2120, or via e-mail: smihalovits@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
Feb012012

Train Accident Tragedy: Dangerous Road & Railway Crossing Made Safer by Litigation

Injury AttorneyTrain Accident Lawyer

 

by David B. Bobrosky
(818) 907-3254

Many times dangerous conditions or negligent conduct are not changed until someone is injured and a lawsuit is filed.  

As part of a continuing series of articles on the Lewitt Hackman Personal Injury Blog, Lewitt Hackman attorneys will identify dangerous conditions or conduct from cases they have handled in the past, and how the conditions or conduct was changed as a result of the lawsuit. Below is such a case. 

Train Accident Attorney

A Dangerous Road & Railway Crossing

 

Our client was on the way home from work to have dinner with his wife, as he had done for the past 25 years. He traveled west down an old road that he had driven many times before.

As he traveled, he approached a railroad crossing from the east. When he approached the railroad crossing, another driver approached the crossing from the west. The intersection where the tracks cross the road is an “S” curve, with the railroad tracks in the middle of the “S.”  Unfortunately, there were no edge lines, lane lines, botts dots, or other signs guiding drivers through the intersection to safely follow the curve and stay in their own lane. 

The other driver, based on all accounts, failed to identify and negotiate the “S” curve and his car crossed into our client’s lane and struck his car head on. Our client’s car was stopped on the tracks, and severely damaged. 

Shortly after the collision, the signals started going off and the crossing arms came down – a train was coming. Despite a severely fractured leg, our client exited his vehicle through his window. Tragically, he was not able to completely escape and he was killed when the train plowed into him and his car. He was survived by a wonderful wife, and three great adult children.

When hired by his family, our office immediately investigated the scene of the accident. During that investigation, we determined that the accident was mostly caused by the dangerous condition of the railroad crossing. It was difficult for a driver to discern the curve, causing the driver to cross over into the other lane of traffic. Because this was not a heavily travelled area, there were no reports of other significant accidents. 

You can see a photo of the railroad crossing shot from a plane we hired to fly above and take photographs immediately after the accident in the image above. As you can see there are no lane lines guiding drivers through the crossing. 

A short time after the accident, the City painted lane lines as shown in this follow-up photograph, below right.Los Angeles Accident Injury Lawyers Making a Difference

As can be seen from the photographs, just the painting of the lane lines makes the curve significantly safer – and possibly would have prevented this tragic accident.

As part of our case, we hired traffic engineers to prepare renderings of what a safe crossing should look like, with additional lines and warning signs before and throughout the curve. After our case was settled, the City essentially made all of the changes suggested by our engineers. 

As with every case we handle, we attempt to obtain a fair recovery to compensate our clients for the injuries suffered as the result of another’s negligence. Equally important, is that our efforts result in dangerous conditions or conduct being changed so similar accidents do not happen again. We achieved both goals in this case. 

David B. Bobrosky is a Los Angeles Personal Injury Attorney experienced in train accidents and dangerous roadway cases. Contact him via e-mail: dbobrosky@lewitthackman.com, or by phone: 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
Jan262012

Roof Hatch Injury at Popular Mall

Injury AttorneyPersonal Injury Attorney

by David B. Bobrosky

(818) 907-3254

Many times dangerous conditions or negligent conduct could be easily avoided if a defendant did not put profits above safety. /p>

As part of a continuing series of articles on the Lewitt Hackman Personal Injury Blog, Lewitt Hackman attorneys will identify dangerous conditions or conduct from cases we have handled in the past, and how the conditions or conduct could have been avoided. Below is such a case.

 

A Dangerous Roof Hatch – The Problem

 

Our 20 year old client was working for a theatre complex at a popular local mall. One day he was instructed by his boss to escort a security guard to the roof so he could provide access for an air conditioning service worker.

The only way to the roof was to climb a 24 foot steel wall ladder to the top, where he then had to unlock the roof hatch and exit the hatch onto the roof. Our client successfully climbed the ladder and unlocked the hatch.

Next came the difficult part. The ladder stopped at the level of the roof. Typically, a ladder is required to extend approximately three feet above the level of a landing to allow the person climbing the ladder to get his or her whole body above the level of a landing and then safely step off.

This is a photo of the roof hatch depicting this problem:

Because the ladder stopped at the level of the roof, our client had to use his arms to try to pull himself out of the hatch and onto the roof. Unfortunately, our client could not do so and he fell 24 feet straight down. He shattered his leg, and eventually underwent a total of seven surgeries on his knee and ankle.

The Solution – Installing Safe Ladder Extensions or Rails

 

The builders of the mall could not extend the actual ladder three feet above the roof because the hatch would not be able to close. However, there were several other inexpensive solutions to this problem.

At the time the building was designed, there were several items that could have been attached to the outside of the hatch to act as a ladder extension or hand rail to assist a climber safely onto the roof. One was even aptly sold under the name of “Save a Life Ladder Extension.” Below is a photograph of one of these possible solutions:

At the time the building was constructed, there was a possible conflict between the federal and state regulations in terms of requiring an extension above the landing on the roof. However, through thorough investigation and discovery, our office tracked down all prior versions of the specifications manual. An early version of the manual included just such an extension.

In an apparent attempt to save costs, the extensions were removed from the final design specifications. Essentially our client suffered severe injuries because a company wanted to save a few hundred dollars.

Fortunately for our client, we successfully resolved the case prior to trial.  He received compensation for his past medical expenses and loss of wages, as well as for his future medical care. This was just another example of a company putting profits ahead of safety.

David B. Bobrosky is a Los Angeles Injury Attorney and Shareholder at Our Firm. You may reach him by e-mail: dbobrosky@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
Jan122012

Funding a Living Trust -- Estate Planning Advice

Trusts & Estate Planning Attorney

by Kira S. Masteller
818.907.3244

The most common reason for establishing a living trust is to avoid probate and take advantage of estate tax exemptions.

If you don’t have a revocable trust, your heirs could spend months or even years waiting for the California court to approve the administration of your assets, the payment of your debts, and the distribution of whatever is left of your money/property to your family, friends, charitable organizations or other heirs.

Properly executed Trusts avoid probate. Wills do not avoid probate.

A revocable trust simply means that your trust can be changed or even revoked whenever you like during your life; while a living trust means it goes into effect while you are still alive, unlike a Will, which is not effective until your death. A revocable living Trust avoids probate and can avoid a Conservatorship proceeding while you are living in the event you are unable to manage your own affairs.

Depending on the value of your estate and what type of assets you have, you will decide with your estate planning attorney whether or not the use of a revocable living trust is for you.

Upon executing your revocable living trust, you will need to “fund” your trust. Establishing the trust without putting your assets into the trust defeats the purpose of having a trust in the first place.

A Properly Funded Revocable Living Trust

 

Estate planning does not end with the execution of the trust document. You actually have to transfer title of your assets into the name of the trust (i.e., John Doe, Trustee of The John Doe Family Trust). If you leave an asset out of your trust, that asset could wind up going through probate.

So which assets should be used for funding a trust? Here are some important ones:

▪ Bank Accounts
▪ Brokerage Accounts
▪ Business Interests, i.e. professional corporations, partnerships, sole  proprietorships, etc.
▪ Certificates of Deposit
▪ Investments
▪ Life Insurance
▪ Real Property, i.e. home, land, commercial buildings, etc.
▪ Recreational and Other Vehicles, i.e. cars, motor homes, boats, planes, motorcyles, etc.
▪ Time Share Ownerships

*Note: Retirement assets, annuities and life insurance do not get transferred into your trust. You will work with your estate planning attorney to determine how to name the beneficiaries of these assets so that they are in alignment with your estate and tax planning objectives.

Let’s say you have a lot of assets, and are not sure where to begin when funding your trust. The first step is to make a complete list of all of your interests, property, and investments. You can check off items on this list as you start funding.

Next, I always recommend that my clients check their mail. Every time you get a monthly statement from your bank or brokerage company, make sure the name on your statement is listed with your name as Trustee of your Trust Name. If it isn’t, call that institution to get that particular asset transferred to your living trust, rather than leaving it in your individual name.

Your estate planning attorney will change the title to your real property by recording a Deed with the County. Your real property in other states should also be titled in the name of your trust so that these assets will not go through probate. You will save your heirs a lot of time, money and headaches by properly funding your trust, not to mention utilize all of the estate tax planning exemptions available.

If you have questions about how a particular asset should be handled, ask the professionals. Talk to your estate planning attorney or accountant.

Last, don’t forget to provide copies of your list to the Trustee, your accountant, and your attorney. Establishing a revocable living trust avoids probate court, but filing your list of assets and keeping good records will make handling your estate a lot easier for your beneficiaries.

Kira S. Masteller is a California Trust and Estate Planning Attorney. Call her at 818.990.2120 if you have questions regarding funding a trust, probate or estate planning for yourself or your business interests.

 

 
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