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Thursday
Aug252011

Seeing Louboutin Red - The Battle for a Trademarked Sole

 

Franchise Agreement LawyerIntellectual Property Attorney

 

by Tal Grinblat
818.907.3284

 

People rarely associate color with a trademark.  But protecting Louboutin Red as a trademark has become a central issue in designer shoe-maker Christian Louboutin’s dispute with Yves St. Laurent.

U.S. Trademark law protects many kinds of marks.  These range from words, logos, slogans, distinctive scents connected with products, sounds and even color (if one can prove the public associates the color with one’s products or services). 

In 2008 Designer Christian Louboutin was able to register several trademarks containing his famous red color, which he named “Loubutin Red”.  These are shown below.

Trademark Law and ColorLouboutin claims that by virtue of his use of this vibrant, iridescent color over several decades, members of the public now have come to associate Loboutin red exclusively with Louboutin shoes and leather bags.  The color has become associated with high fashion, designer items. 

Louboutin Red and Intellectual Property LawMany will recognize a Louboutin shoe almost immediately, spotting the red-lacquer flashes of distinction as fashionable women click by you on the sidewalks on their way to work, at parties, or while leisurely perusing the wares at other designer stores.

The shoe designer has been undercoating his footwear with the shade since 1992. As a color, it’s distinctive, particularly on the sole of a shoe. 

But a district judge in New York may be stepping on the designer’s toes, leaning more towards competitors like Yves St. Laurent who may want to paint the town (and their shoes) red as well. 

On August 10th the district judge refused to grant a preliminary injunction stopping Yves St. Laurent from selling shoes with a red sole that Louboutin says infringe his trademark. The judge did not believe that a designer could trademark a color. According to U.S. Justice Victor Marrero:

“Color serves ornamental and aesthetic functions vital to robust competition . . . Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection.” 

If Yves St. Laurent is successful in contesting Louboutin’s trademark rights to the color red, the trademark may be canceled. If that happens, the French-based Christian Louboutin S.A. will likely step up their fight against Yves St. Laurent and take the case to the Supreme Court. 

If Loubutin loses their trademark infringement case, the loss may open the door for other shoe companies to start painting their soles Louboutin Red.  Should that happen, distinguishing the real Louboutin shoe from others will be a real “feet”.   

Tal Grinblat is a Los Angeles Intellectual Property Lawyer and California State Bar Certified Specialist in Franchise and Distribution Law, as designated by the Bar’s Board of Legal Specializations. Contact him by calling 818.990.2120 or via e-mail: tgrinblat@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
Aug232011

Good Housekeeping and the Art of Business Entity Maintenance

 

by Robert A. Hull

How many times have you heard that you should not mix your business with your pleasure?

Well, here’s yet another reason to separate the existence of your business affairs from your own:Viewtech, Inc. v. United States (9th Cir. 2011). More on that in a moment.

As a Los Angeles business lawyer and estate planning attorney, one of my most common refrains to clients is to ‘respect the formalities’ of your business entity. Like any successful relationship, you must respect boundaries – in this case, by complying with government-mandated formalities. 

That means, among other things, maintaining: 

▪ Adequate Corporate Minutes

▪ State Filings

▪ Clear Separation of Personal & Business Identities:
Online business formation and legal forms services often ignore these, and other aspects of an entity’s ongoing obligations.

If you do not comply with the above, you may face personal liabilities as the result of any business liabilities, defeating the very purpose of having such a business entity. Or, as the recent 9th Circuit Viewtech case indicates, your business might suffer as the result of your personal liabilities.

Here’s what happened:

1. The IRS subpoenaed bank records of an S-Corporation, Viewtech, in the IRS’s search for funds of an assessed taxpayer, Jung Kwak, the primary owner of Viewtech.

2. Viewtech moved to quash the subpoena on the grounds that it had not been given proper notice by the IRS (notice of such a third-party subpoena does not have to be given to the third party if the party was a fiduciary or transferee of the assessed taxpayer, among other exceptions).

3. The Court found on several grounds, that the IRS did not have to give notice to Viewtech. One of those grounds was that Kwak transferred personal funds into Viewtech’s account, and the corporation both paid money into his account, and paid some of his taxes (presumably, there was no contemporaneous promissory note which established separateness between the corporation and its shareholder).

The Court noted that this ground supported the conclusion that Viewtech was Kwak’s fiduciary or transferee, and the IRS could subpoena Viewtech’s bank records in a case relating to Kwak’s tax deficiency without any notice whatsoever to Viewtech.

The IRS Will Treat You the Way You Treat Yourself

It’s important to note that the Court found that Viewtech was also not entitled to notice because Kwak, as a 100 percent and 97 percent shareholder during the relevant periods, was entitled to substantially all of Viewtech’s income, and was a Viewtech employee and officer, and therefore had a sufficient interest in Viewtech.

So, even if separate accounts are maintained, the IRS may be able to subpoena your business entity’s records without notice to your company.

But this is no reason to ignore the formalities. Since Kwak did not maintain a separate business entity and commingled his accounts, he risked his corporation’s financial well-being, in addition to his own. The IRS may be able to seize not only Kwak’s personal assets transferred to the corporation, but also the rest of the corporation’s assets as well.

The IRS can argue that since Kwak did not treat Viewtech as separate from himself, the IRS can do the same.

Practicalities & Precautions in Housekeeping

Federal courts often give the IRS more leeway than they would give to a private party suit against you (for example, allowing the IRS to apply certain tests “non-technically” as indicated by Viewtech Court’s recounting of a prior applicable case).

This means that it is even more important that entity formalities are maintained – they are no guarantee against a successful suit by the IRS, but dollars to doughnuts the IRS will use the slightest entity upkeep irregularity to come after your assets for your corporation’s liabilities and vice versa. Why? Because it can. Don’t give the IRS that ‘in’ – keep your business and personal houses in order. An ounce of maintenance is worth a pound of cleanup.

The Takeaway – “Good Housekeeping” is not just a magazine, but sound advice when conducting your business through an entity such as a corporation or limited liability company.

If you have any questions regarding business formalities for your entities, or any other questions regarding your particular business, please feel free to Michael Hackman: 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
Aug182011

The 2012 Presidential Election & the Ghosts of Elections Past

Litigation Los AngelesEnvironmental Litigation  

Stephen T. Holzer
818.907.3299

Two major events affecting the 2012 presidential election occurred last week. One got, and is still getting, national media attention. That would be the August 12 Iowa Straw Poll, in which Reps. Michele Bachmann (Minnesota) and Ron Paul (Texas) emerged as winners in that particular battle for the Republican nomination.

On the other hand, and garnering hardly any media notice at all, Governor Jerry Brown signed Assembly Bill 459 (Assemblyman Jerry Hill, D-San Francisco) into law on August 8.

The law assigns California electoral votes to the candidate winning the national popular vote. The former bill is the result of a movement sparked by the 2000 presidential election, in which George W. Bush won the presidency on the strength of electoral votes, even though Democratic opponent Al Gore won the national popular vote.

Anomalous as the election may seem, it also happened when Rutherford B. Hayes won the White House over Samuel J. Tilden in 1876, and when Benjamin Harrison took the presidency over incumbent Grover Cleveland, in 1888.

But what does Governor Brown’s move mean for the 2012 presidential election?

Probably nothing, for the next year or two, even though California’s endorsement carries quite a bit of weight. First, under AB 459, California’s participation in the measure first requires States with 270 electoral votes also to sign on. So far there are 134:

State

Electoral Votes

California55
Illinois21
New Jersey15
Massachusetts12
Washington11
Maryland10
Hawaii4
Vermont3
District of Columbia3

 

The other reason we probably won’t see a significant move toward a direct national vote is because we can expect a rainstorm of legal wrangling, should the movement attain the 270 necessary votes.

The U.S. Constitution allows individual states to select electors as the States see fit; but some will argue that this does not permit (in this case, mostly larger) States to “conspire” together to reduce the electoral clout of other (smaller) States, as this measure would do (i.e., candidates would probably concentrate on large population areas to rack up the popular vote while ignoring some geographical regions of the country).

If the popular-vote measure ever goes into effect, the debate over its Constitutionality undoubtedly would ultimately be decided by the U.S. Supreme Court.

Stephen T. Holzer is a Los Angeles Civil Litigation Attorney and Chair of our Environmental Law Practice Group.

 

 
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
Aug162011

IRS Form 8939 | Remember, Remember, the 15th of November…

 

California Trusts, Estate Planning AttorneyAugust 16, 2011
by Kira S. Masteller


Not because of Guy Fawkes Night, commonly celebrated November 5th, and there is no gunpowder, treason or plot here. 

If anything, there is opportunity, because November 15th is an important deadline for filing IRS Form 8939.  For those of you who had a family member pass in 2010, the form can reap huge savings in your estate planning trusts

Along with the deadline, the IRS also issued guidance for using the form. Here’s how it breaks down (though it may seem very much like a rather twisted plot at first glance): 

1. An Estate Executor can opt out of paying estate tax for a decedent who died in 2010 and have the carryover basis rules apply (Form 8939). 

2. If the Executor files IRS Form 8939 to avoid estate taxes, then the estate assets would not receive a step-up in basis to Fair Market Value (FMV) as of the decedent’s date of death.  The assets would inherit the decedent’s cost basis in assets as governed by IRC § 1022. 

3. On the other hand, the Estate Executor can elect to allocate $1.3M to increase some assets’ basis to the FMV of the date the decedent passed.  The decision should be made on an Estate by Estate basis. 

4. Donors can elect to opt out of automatic allocation of the Generation-Skipping Transfer (GST) tax exemption for direct skips in 2010. (The IRS also clarified when 2010 GST tax returns are due.) 

5. There will be no deadline extensions. 

As usual with the IRS, the guidance may very well sound like it’s designed to confuse the average citizen, and worthy of some Guy Fawkes-like scrutiny. But if you need help with your California estate and tax planning in general, or with Form 8939 in particular, just give us a call: 818.990.9120. 

Kira S. Masteller is a California Estate Planning Attorney. You can reach her by e-mail: kmasteller@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
Aug122011

Driving While Distracted a Nightmare, & Now Responsibility, for Employers

Injury Attorney Los AngelesLos Angeles Injury Lawyer 

 

by David B. Bobrosky
(818) 907-3254

 

 Texting and driving, just one form of DWD or driving while distracted, has become so much of a problem in this age of the smart phone, that President Obama issued an Executive Order in October 2009 to address the problem.

The directive regarded federal employees who text while driving either federally-owned or leased vehicles (GOV), or privately-owned vehicles (POV) while on government business. Section 2 of the Order states:

 

“Text Messaging While Driving by Federal Employees. Federal employees shall not engage in text messaging (a) when driving GOV, or when driving POV while on official Government business, or (b) when using electronic equipment supplied by the Government while driving.”

The Occupational Safety and Health Administration (OSHA) has followed presidential suit, recognizing a new dimension in keeping employees safe. They’re teaming up with the Department of Labor and the Department of Transportation to combat distracted driving.

How Employers Should Prohibit Texting While Driving

OSHA tells employers who have workers that drive on the job that they must be proactive in preventing automobile accidents caused by DWD. It’s the employer’s responsibility to keep their workers from driving distracted. Employers should:

1. Create clear policies prohibiting texting and driving or other distracted driving behaviors.

2. Do not offer incentives to employees for work practices that encourage or condone using cell phones while driving.

3. Enforce your DWD policies. It’s your legal responsibility and obligation as an employer to keep your workers safe, as well as others who might be on the road.

But it’s not just our highways where using your cell phone and driving becomes an issue. Other roadways, rails and even waterways are potentially dangerous environments when people drive distracted.

No one will forget the 2008 Metrolink crash in Chatsworth that killed 25 people and injured many more – the engineer sent his last text message 22 seconds before the crash.

DWD in California

There is a common-law doctrine, Respondeat Superior, that essentially says an employer is liable for acts of negligence or omissions on the part of their employees – and it certainly applies to employers who turn a blind eye to their drivers who use cell phones in company vehicles.

In California, the doctrine evolves to clearly stated laws when it comes to distracted driving:

1. California and Arizona are the only western states that ban cell phone use for drivers who run school buses and transit buses.

2. California is one of 10 states that ban hand-held cell phones while driving.

3. California and 33 other states ban texting and driving for all drivers.

Whether you run a major transportation company, operate a small courier service, or just have one company vehicle for miscellaneous errands . . . as an employer, you need to do your share to make the roads safer for everyone.

David B. Bobrosky is a Los Angeles Personal Injury Attorney and a safe driving advocate. Contact him via 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.
LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120