In order to help the Southwest Florida community recover from Hurricane Irma, the following is a non-exhaustive list of resources:

Tax

FEMA

Interest Free Loans

Payroll

Construction

United Way

  • United Way 2-1-1 is a United Way program that provides free information and referral to human/social service agencies within Lee, Hendry, Glades and Okeechobee Counties. Clients can call and receive information and referrals appropriate to their needs, https://www.unitedwaylee.org/what-is-united-way-211/.

We will continue to update the list as they become available.

As our area recovers in the aftermath of Hurricane Irma, one less thing we need to worry about in the immediate future are certain tax matters. The IRS has issued relief to taxpayers in Presidential Disaster Areas, which includes Lee, Charlotte, and Collier Counties. Among the relief granted, for affected individuals and businesses there is an extension to January 31, 2018 to file returns and pay taxes originally due during the period starting September 4, 2017.  So, if you were on extension to file your income tax return for your business (generally due September 15, 2017) or individually (due October 15, 2017), you now have until January 31, 2018 to file that return.

Keep in mind, this relief does not extend the time to pay income taxes for 2016, which were due on April 15, 2017 (even if your return was on extension).

The IRS continues to provide updates on areas covered and the relief granted. More information can be found at https://www.irs.gov/newsroom/help-for-victims-of-hurricane-irma.

Tax photo courtesy of 401(K) 2012 under Flickr Creative Commons License

It is almost that time of year — football season is approaching and with the anticipation of tailgating and touchdowns comes, of course, talk of trademarks. For years, the Washington Redskins have been fighting battles regarding their REDSKINS trademark. The issues have created much controversy due to the purported negative connotation the REDSKINS term gives to Native American groups.

Section 2(a) of the Lanham Act prohibits registration of “disparaging” marks. A number of REDSKINS trademark registrations were challenged on this basis and the Trademark Trial and Appeal Board has agreed, cancelling several such registrations. In fact, for a while it looked like the Washington Redskins might be forced to lose all trademark rights to REDSKINS and even possibly change the team name.

However, the REDSKINS case raised the question of whether Section 2(a) of the Lanham Act violated the Constitution because it constituted a government restraint of free speech. That is, to what extent can the government pass substantive review on terms that are meant for use in the private sector for commercial purposes?

THE SLANTS, SCOTUS and Disparagement

Simon Tam is a musician and formed a band. About eight years ago he sought trademark registration for the band name, which is not uncommon. Here though, the trademark at issue was THE SLANTS. The mark was refused registration because SLANT was viewed as a disparaging term directed toward Asians. Mr. Tam challenged that refusal and it ultimately found its way to the Supreme Court.

On June 19, 2017, the Supreme Court ruled in favor of Mr. Tam finding that Section 2(a) the disparagement clause of Section 2(a) of the Lanham Act was unconstitutional because it constituted viewpoint discrimination. Accordingly, the refusal to register THE SLANTS based on the government’s conclusion that the term was disparaging was improper.

The fate of the REDSKINS mark has been somewhat contingent on the outcome reached in Tam because the argument supporting cancellation of the REDSKINS trademarks was based on Section 2(a) in that REDSKINS was disparaging. With that section of the Lanham Act declared unconstitutional, the Washington Redskins have the opportunity to regain protection for the REDSKINS mark.

Thank you to our Summer Associate Madison Allen for her contributions to this post!

Photo courtesy of Keith Allison Under Flickr Creative Commons License

CAK big wheelYeah, that’s me on a Big Wheel at age 6 or 7. Check out that air! Good thing there was grass for soft landing….

Recently, my law partner and I tried a temporary injunction in a complicated business dispute. When I cross-examined the opposing expert, he answered “Yes” to most of my leading questions, as I expected he would. When the opposing expert strayed from deposition testimony, I impeached him to get him back on the straight and narrow.

Near the end, I elicited a pretty good answer. I could have stopped right there. It would have been a good cross-examination. But I thought I could ask one more question on this topic, and really nail him. There was some risk in asking the next question, as he could have tried to put a spin on his previous answers. But if he did, he’d have an awful lot of previous testimony to explain away.

It turned out the next answer was better than I could have hoped for when I was putting my cross-exam together beforehand.

Take-Away

Risk is a constant in business. Don’t avoid it—embrace it, measure it, and use it to guide your next action.

If your business ventures may require you to use the court system, whether as a plaintiff to enforce your contractual rights, or as a defendant to protect against attempts to attack your business, identify the risks and discuss them with your lawyer. He or she should be listening so that you can identify a strategy to come up with a soft landing. Just in case.

pro-basketball-team-1594634_1920(1)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.

The Problem

Continue Reading Don’t Foul Out with MARCH MADNESS Marketing

Eagles_in_concert_September_2014(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?

Continue Reading Litigating it up at the HOTEL CALIFORNIA

Hands Holding Digital Tablet Database Hacked

Guest post by John Miller, Esquire, Stockholder in Henderson Franklin’s Tort & Insurance Litigation Group

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

Continue Reading Tort Trends for 2017: Protect Yourself in the New Year

new-years-day-1926337_1920

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:

  1. Identify all of a company’s IP in its various forms such as trademarks, copyright, trade secret and patents.
  2. Review those assets to ensure they are properly protected, including review of registration status, reviewing licenses and contractor agreements or non-disclosure agreements.
  3. 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 mark.nieds@henlaw.com.

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 erin.houck-toll@henlaw.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.

Continue Reading Reflecting on Trust and Probate Law with Richard Mancini

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”).

Federal Rights

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.

Continue Reading A Look Back on 2016 in Intellectual Property: Congress Gives a Present to Innovators