While we have written on this topic in the past, because the NCAA Basketball Tournament is an annual event and the NCAA gets more aggressive each year, this information bears repeating. Because businesses sometimes tie promotions to the Tournament and use it as a marketing activity, they should be careful how they do so.
(To the tune of Hotel California)
Once in Northern Virginia, a trademark was filed
A Mexican company a long list compiled
Cosmetics and phone cases, purses, hair gel and shoes
The list went on for six classes, just what did they have to lose?
During examination, a disclaimer was sought
The applicant gladly complied, any fear of refusal was for naught.
Then the mark was published, but the Eagles they did see
Their lawyers got involved
Said you can’t use this for free
Registering HOTEL CALIFORNIA
Such a lovely try (such a lovely try) Such a lovely cry
Don’t even try to use HOTEL CALIFORNIA
For any goods (for any goods) in our neighborhoods….
What Can That “Song” Possibly Mean?
Regardless of the economic or political climate, there never seems to be a decline in tort lawsuits. Be it personal injury claims, employment suits, or professional liability cases, 2017 promises to be another busy year for insurance defense litigators.
Data Security – Data Breaches
Intellectual Property Resolutions: Take Stock of Your IP Assets
Often people resolve in the New Year to take stock of their assets to see where they are in terms of not only protecting what they have but also to implement long-range planning and goals. While businesses may often check their status and progress against things like five-year plans, they should not forget to also take stock of their assets, especially Intellectual Property (“IP”) assets. IP assets can often be the most important assets to a business. Unfortunately, they can also be the most overlooked and under-protected.
With the new year upon us, this is an opportune time for businesses to audit their IP to make sure these important assets are secure by following these three steps:
- Identify all of a company’s IP in its various forms such as trademarks, copyright, trade secret and patents.
- Review those assets to ensure they are properly protected, including review of registration status, reviewing licenses and contractor agreements or non-disclosure agreements.
- Develop internal policies to make sure newly created IP is documented and protected as well as procedures to ensure secrecy of proprietary information.
Our Intellectual Property practice group is available to assist with auditing your IP assets and to devise IP protection plans. For more information, please feel free to contact me at firstname.lastname@example.org.
Business Law Resolutions
It’s that time of year when we all make New Year’s Resolutions to improve ourselves. From Henderson Franklin’s Business and Tax Practice, Erin Houck-Toll reminds us that as you make and implement your personal resolutions, don’t forget your business. This is a good time to review your business’ governing documents—bylaws, operating agreements, employment agreements and shareholder agreements—to ensure they still make sense, both in terms of current law and tax strategies, as well as how you are actually operating. If you have any questions, please feel free to email me at email@example.com.
Guest post by Bonita Springs Trust and Probate Litigation Attorney Richard Mancini:
As Clarence famously said in “It’s A Wonderful Life”:
Strange, isn’t it? Each man’s life touches so many other lives. When he isn’t around he leaves an awful hole, doesn’t he?”
Many plan for the time when their time on earth is over and plan to distribute their wealth to family and friends. Unfortunately, sometimes the plans aren’t clear or the plans forget an important aspect, which leads to fights and litigation after their passing. As we reflect back on 2016 and look to the future, it is critical to have a complete estate plan, but not just any plan.
For all of 2016, one of the most significant developments in the Intellectual Property field was the implementation of the Defend Trade Secrets Act of 2016 (“DTSA”).
Before implementation of the DTSA, trade secret protection was a matter of state law. While businesses had federal rights for patents, trademarks and copyrights, trade secret was solely governed at the state level. The DTSA changed this legal landscape to provide legal uniformity and federal protection for trade secrets as well as access to the federal courts to enforce trade secrets.
Under DTSA a “trade secret” is broadly classified as any “form of intellectual property that allow[s] for the legal protection of commercially valuable, proprietary information.”
As noted, under the DTSA, a trade secret owner can sue for misappropriation n the federal courts. This is a significant development because having adjudicated patent infringement matters for decades, the federal courts are prepared to understand complex trade secrets and the technologies behind them.
Under the Digital Millennium Copyright Act (“DMCA”) any website that allows site users to post content, including anything such as comments, reviews or videos is considered a “Service Provider.” A Service Provider is potentially exposed to copyright infringement liability based on content posted by site users. However, the DMCA also offers a Safe Harbor that, under certain conditions, can insulate Service Providers from third-party copyright infringement claims based on such user-generated content.
To qualify for protection under this Safe Harbor, the Service Provider must meet certain conditions:
- the Service Provider must not know about or participate in the infringing conduct and cannot benefit from that infringement;
- the Service Provider must promptly remove any infringing content once it discovers same, either on its own discovery or by notice from a third-party; and,
- to qualify for the Safe Harbor, a Service Provider must designate an agent to receive notice of copyright infringement claims and must register the identity of that agent with the U.S. Copyright Office.
Thank you to those readers who attended our C-Suite Seminar Kick-off on September 15, 2016. I posted on September 1 about the topic that my colleague, Mark Nieds, Esq., and I would be presenting. If you did happen to miss us on the 15th, Mark and I explained what to do when a shareholder demands an inspection of the company’s books and records.
To make the discussion more lively, we prepared a mock letter.
While the letter didn’t track the statute, our advice was to respond to the letter promptly, pointing out that the company is ready to comply with a document inspection demand that complies with the statute. This way, the company refuses to comply with a demand outside of the statute, but shows it’s ready to promptly comply with a demand within the statute. This will be useful if the shareholder decides to forego a statutory demand and, instead, files suit under Florida Statute section 607.1604. In that scenario, the company will be well-protected and may have an opportunity to recover its attorneys’ fees and costs for an improper document demand.
The take-away from our presentation? Don’t ignore the demand and get your counsel involved early so that you are ahead of the game on this issue. Click here for a link to the handouts.
Have you ever received a letter from a shareholder in your business demanding an inspection of the books and records of the company? If you never have, count yourself lucky.
That’s because Florida law provides a right for any shareholder to inspect the books and records of a company. Florida Statutes section 607.1602 gives a shareholder the right to inspect various categories of company books and records. The key to evaluating a request is to determine what is being requested. Florida law defines corporate records; not everything for which a shareholder demands an inspection must be provided.
Guest post by Eric Gurgold, Florida Bar Board Certified Wills, Trust & Estate Expert
The IRS has just published proposed new regulations under Section 2704 of the Internal Revenue Code that could significantly impact planning for estates that may be subject to estate tax. If finalized, the proposed regulations would change how transfers of business interests to family members are valued by eliminating certain discounts, disregarding restrictions in transfer agreements and adding attribution rules for family members. The proposed regulations will not apply to transfers to non-family members.
A public hearing on these proposed regulations has been scheduled for December 1, 2016. If adopted, the regulations will become final. A short window of opportunity exists to complete transfers of business interests to family members under the current rules.
If you would like to discuss the impact of the proposed regulations on your estate planning, contact any of our wills, trusts and estates attorneys at 239-344-1100 or by email to firstname.lastname@example.org.
About the Author:
Eric Gurgold currently serves as Chair of the Estate Planning and Administration division and is Board Certified in Wills, Trusts & Estates by The Florida Bar. For over twenty-five years, Eric has concentrated his law practice in the areas of estate planning and administration, elder law, probate litigation, title insurance claims related to probate issues, business law and taxation. He assists clients in the preparation of wills, trusts, family limited partnerships, inventories, inheritance and estate tax returns, as well as providing counsel to minimize income and estate taxes.
Tax photo courtesy of 401(K) 2012 under Flickr Creative Commons License