tag:blogger.com,1999:blog-79799912536553758062024-03-08T04:27:51.402-06:00Business | Commerce | TradeCommentary and analysis of commercial, business and intellectual property (IP) law, sports law, complex civil litigation and occasionally a general legal tip.Nathan A. Russellhttp://www.blogger.com/profile/09311410817932027626noreply@blogger.comBlogger231125tag:blogger.com,1999:blog-7979991253655375806.post-63359821012187121472014-05-02T15:49:00.000-05:002014-05-02T15:50:39.437-05:00"Jameis Winston crab legs" violates the Heisman Trophy winner's rights of publicity.In the past few days, the 2013 Heisman Trophy-winning quarterback from Florida State University, Jameis Winston, was charged with the theft of $32 worth of crab legs from a grocery store. In response <a href="http://www.cbssports.com/collegefootball/eye-on-college-football/24547626/photo-alabama-store-selling-jameis-winston-crab-legs" target="_blank">an Alabama grocery store started selling "Jameis Winston crab legs."</a> <a href="http://businesscommercetrade.blogspot.com/2014/02/does-fake-bo-pelini-violate-real-bo.html" target="_blank">Rights of publicity have been previously discussed</a>. An individual has the exclusive right to license his or her likeness as they see fit (unless that person is an NCAA student-athlete). Clearly, Jameis Winston did not license his likeness to be used in connection with the grocery store's crab legs. Even though the grocery store was joking, its conduct does violate Winston's <a href="http://businesscommercetrade.blogspot.com/2014/02/does-fake-bo-pelini-violate-real-bo.html" target="_blank">rights of publicity</a>. If sued, the grocery store would be disgorged of all profits generated from said "Jameis Winston crab legs."Nathan A. Russellhttp://www.blogger.com/profile/09311410817932027626noreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-60099044915553508482014-03-27T10:31:00.003-05:002014-03-27T10:31:48.828-05:00Why was the National Labor Relations Board’s ruling that college athletes can unionize limited to private institutions?<div class="MsoNormal">
<a href="http://msn.foxsports.com/college-football/story/six-crucial-questions-after-ncaa-takes-another-body-blow-032614" target="_blank">The National Labor Relations Board recently determined that scholarship college athletes at private nonprofit colleges and universities can unionize</a>. <a href="http://msn.foxsports.com/college-football/story/federal-agency-gives-college-football-players-at-northwestern-university-right-unionize-032614" target="_blank">The NLRB determined that college athletes at those schools are "employees" of the school, and their payment is their scholarship</a>.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Under the National Labor Relations Act, states are not "employers." Since public schools are part of their state government, public schools are not employers under the NLRA. Since private schools are not part of their state government, they are not employers under the NLRA. The federal regulations of the NLRB explicitly provide that the NLRB will exercise jurisdictions over issues involving private nonprofit colleges and universities that have a gross annual revenue of $1M or more.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
This does not mean that college athletes at public schools cannot unionize, it just means they have to do so differently. Those athletes would have to unionize under procedures for public sector employees. Some states are right to work states, which prevents compulsory union participation for public sector employees. Those employees could join the union if they wanted to do so, but they would not have to join or participate in its labor policies or goals.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
On the other hand, Northwestern's college athletes will be voting within the month to determine whether they will be represented by the <a href="http://www.collegeathletespa.org/" target="_blank">College Athletes Players Association</a>. The CAPA was just recently formed. If a majority of Northwestern's athletes vote for representation, then all Northwestern athletes will be represented by the CAPA.</div>
Nathan A. Russellhttp://www.blogger.com/profile/09311410817932027626noreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-59657513980945681062014-03-12T10:36:00.001-05:002014-03-12T10:36:31.046-05:00On the negligence lawsuit involving former Iowa football players injured during the rhabdomyolysis exercise scandal in January 2011.In January 2011, 13 football players for the University of Iowa were hospitalized with <a href="http://www.nlm.nih.gov/medlineplus/ency/article/000473.htm" target="_blank">rhabdomyolysis, which is the breakdown of muscle tissue leading to the release of muscle fiber contents into the bloodstream</a>. <a href="http://espn.go.com/college-football/story/_/id/10588363/william-lowe-files-suit-rhabdo-injuries" target="_blank">The players suffered this condition as the result of overly strenuous workouts following a disappointing 2010 football season</a>.<br />
<br />
<a href="http://espn.go.com/college-football/story/_/id/10588363/william-lowe-files-suit-rhabdo-injuries" target="_blank">On March 10, 2014, one former player injured by "rhabdo" sued the school and State of Iowa for negligence</a>. Unless one or more of the injured former players were in negotiation with the school before January 2013, and unless the parties agreed to waive arguments based on Iowa's statute of limitations, the player or players may lose on a technicality. Iowa Code 614.1(2) provides that personal injury lawsuits must be brought within two years. The former player's claim was initiated more than three years after the injury. Accordingly, even though the school would likely be liable for negligence, it may win because the player waited too long to file the lawsuit. That said, it is more likely that the players were previously in confidential negotiation with the school, and the parties agreed to waive any argument based on the statute of limitations.Nathan A. Russellhttp://www.blogger.com/profile/09311410817932027626noreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-79118102344911441732014-03-04T08:46:00.001-06:002014-03-04T08:46:27.941-06:00What is a naked trademark license?If you have a <a href="http://businesscommercetrade.blogspot.com/2012/05/introduction-to-trademarks.html" target="_blank">trademark</a> and enter into licensing agreements where you do not oversee and monitor the manner in which your mark is used by the licensees, you risk a "<a href="http://businesscommercetrade.blogspot.com/2014/01/the-12th-man-trademark-dispute-between.html" target="_blank">naked license</a>." Having a naked license means your trademark is no longer valid, because it no longer is <a href="http://businesscommercetrade.blogspot.com/2013/02/secondary-meaning-in-trademarks.html" target="_blank">source identifying</a>.<br />
<br />
If you have a mark and want to license it to others, make sure you enter into licensing agreements negotiated at arms' length. If you let other companies use your mark without conditions, it will result in a naked license.Nathan A. Russellhttp://www.blogger.com/profile/09311410817932027626noreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-85570309934080164412014-02-26T13:04:00.000-06:002014-02-26T13:04:08.933-06:00Student-athlete likeness litigation appears headed to trial.<div>
<a href="http://sportsillustrated.cnn.com/college-football/news/20140220/ed-obannon-lawsuit-proceeds-to-trial/" target="_blank">Last week, the presiding judge in the NCAA student-athlete likeness antitrust litigation denied competing motions for summary judgment</a>. The judge has not yet issued a written ruling on either motion, but indicated that <a href="http://businesscommercetrade.blogspot.com/2013/11/student-athletes-file-motion-for.html" target="_blank">the issues cannot be resolved without a trial</a>. Keep in mind, <a href="http://businesscommercetrade.blogspot.com/2013/03/how-class-certification-works-in.html" target="_blank">there were two classes seeking certification, and only one was certified: current student-athletes</a>. Former student-athletes were not certified as a class.</div>
<div>
<br /></div>
<div>
Interestingly, the presiding judge gave a scathing reply to the NCAA's argument that paying players would affect competitive balance: "Maybe you could enforce more competitive balance by having coaches' salaries addressed."</div>
<div>
</div>
Nathan A. Russellhttp://www.blogger.com/profile/09311410817932027626noreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-5768915945858717422014-02-17T09:43:00.000-06:002014-02-17T09:43:13.489-06:00Indemnity clauses are not always for the faint of heart.<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
In certain circumstances, <a href="http://en.wikipedia.org/wiki/Indemnity" style="font-family: inherit;" target="_blank">indemnity clauses</a> can be pretty frightening. <span style="font-family: inherit;">An </span><a href="http://en.wikipedia.org/wiki/Indemnity" style="font-family: inherit;" target="_blank">indemnity clause</a><span style="font-family: inherit;"> requires one party to bear responsibility
for any loss or damage incurred by another party. These provisions are commonly
found </span><a href="http://businesscommercetrade.blogspot.com/2013/02/contracting-with-larger-companies.html" style="font-family: inherit;" target="_blank">in contracts dealing with big companies and/or smaller companies with sophisticated legal counsel</a><span style="font-family: inherit;">. You should always be careful when signing a
contract requiring indemnification. Activation of an
indemnity clause when loss or damage occurs could devastate your personal life
and/or bankrupt your business.</span></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<span style="font-family: inherit;"><br /></span></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<span style="font-family: inherit;">With an indemnity clause, not only are you responsible for your own loss
or damage in connection with a contract, you are responsible for another party’s
loss or damage in connection with the same contract. Sometimes, indemnification
makes sense, like when one party has little involvement with a business
relationship involving a second or third party, or when a party provides one
component in a complex mechanism. </span><span style="font-family: inherit;">If fairness suggests that a party should not be responsible for loss or
damage in connection with a contract, an indemnity clause protecting that party
is proper. But if fairness suggests a party should be held responsible for
loss or damage in connection with a contract, indemnification is improper.</span></div>
Nathan A. Russellhttp://www.blogger.com/profile/09311410817932027626noreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-25491924894775867272014-02-13T09:33:00.002-06:002014-02-13T09:33:21.198-06:00Wordmark trademarks and design mark trademarks.<a href="http://en.wikipedia.org/wiki/Service_mark" target="_blank">Service marks</a>, <a href="http://businesscommercetrade.blogspot.com/2013/05/what-is-certification-mark.html" target="_blank">certification marks</a> and <a href="http://en.wikipedia.org/wiki/Collective_trade_mark" target="_blank">collective marks</a> are regularly called "<a href="http://businesscommercetrade.blogspot.com/2012/05/introduction-to-trademarks.html" target="_blank">trademarks</a>." Each of these categories of marks contain wordmarks and design marks. A wordmark does not contain a logo or design. It is simply the word being claimed as a trademark. A design mark contains the logo or design of a mark. For instance, "Nike" is a wordmark. The Nike "<a href="http://cruvi.cl/blog/wp-content/uploads/2012/nike/NIKE%20SIGN.jpg" target="_blank">swoosh</a>" is a design mark. Both wordmarks and design marks are <a href="http://businesscommercetrade.blogspot.com/2013/05/what-to-do-if-your-mark-is-not-entitled.html" target="_blank">protectable under trademark law</a>. Getting federal trademark protection on your company's wordmark does not mean your design mark is protected. Getting protection on your design mark does not mean your wordmark is protected. You would need to register both to protect both.<br />
<br />
One design mark might be <a href="http://businesscommercetrade.blogspot.com/2013/02/trademark-infringement.html" target="_blank">confusingly similar</a> to another design mark but the wordmarks of the two might be dissimilar. Likewise, a wordmark might be <a href="http://businesscommercetrade.blogspot.com/2013/02/trademark-infringement.html" target="_blank">confusingly similar</a> to another wordmark but the design marks of the two might be dissimilar.Nathan A. Russellhttp://www.blogger.com/profile/09311410817932027626noreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-89949265481728886692014-02-06T14:04:00.000-06:002014-02-06T14:11:54.937-06:00Does Fake Bo Pelini violate the real Bo Pelini's rights of publicity?<div>
<a href="http://www.law.cornell.edu/wex/publicity" target="_blank">Rights of publicity</a> protect a person's exclusive right to license their likeness to whom and on what terms they choose. This is at the heart of the <a href="http://businesscommercetrade.blogspot.com/2013/03/the-ncaa-student-athlete-likeness.html" target="_blank">NCAA student-athlete likeness antitrust litigation</a>, because intercollegiate athletics may be the only place where this right is irrevocably transferred to the NCAA and its member institutions.</div>
<div>
<br /></div>
<div>
<a href="https://twitter.com/FauxPelini" target="_blank">Fake Bo Pelini</a> is a Twitter account designed to poke fun at the real <a href="http://en.wikipedia.org/wiki/Bo_Pelini" target="_blank">Bo Pelini</a>'s <a href="http://businesscommercetrade.blogspot.com/2013/09/if-fired-for-2011-audio-tape-nebraska.html" target="_blank">sometimes surly and obstreperous nature</a>. If the Fake Bo Pelini generates money from the use of Bo Pelini's likeness, he could be violating Pelini's rights of publicity. This does not appear to be the case.</div>
<div>
<br /></div>
<div>
The "Bo Pelini Foundation" is a registered trademark, but "Bo Pelini" is not. If "Bo Pelini" were a registered trademark or it was used on or in connection with goods or services, Pelini could not sue for <a href="http://businesscommercetrade.blogspot.com/2014/01/on-trademark-dilution-barbie-example.html" target="_blank">trademark dilution</a>, because Fake Bo Pelini is a parody account. If Fake Bo Pelini was not a parody and "Bo Pelini" were a registered <a href="http://businesscommercetrade.blogspot.com/2012/05/introduction-to-trademarks.html" target="_blank">trademark</a> or used on or in connection with goods or services, then Pelini could sue for <a href="http://businesscommercetrade.blogspot.com/2014/01/on-trademark-dilution-barbie-example.html" target="_blank">trademark dilution</a>.</div>
Nathan A. Russellhttp://www.blogger.com/profile/09311410817932027626noreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-50679070613185095192014-01-27T19:36:00.000-06:002014-01-27T19:43:59.577-06:00On trademark dilution: the Barbie example.<a href="http://businesscommercetrade.blogspot.com/2013/02/trademark-infringement.html" target="_blank">Trademark infringement results when a defendant uses a confusingly similar mark to a plaintiff's mark</a>. <a href="http://en.wikipedia.org/wiki/Federal_Trademark_Dilution_Act" target="_blank">Trademark dilution results when a defendant uses a mark in a way that lessens the distinctiveness of a famous trademark, regardless of a likelihood of confusion</a>. <a href="http://www.buzzfeed.com/ellievhall/theres-an-iphone-game-that-lets-you-give-barbie-plastic-surg" target="_blank">This is a clear example of trademark dilution: an iPhone game that allows users to give plastic surgery to an overweight Barbie</a>.<br />
<br />
There are two types of trademark dilution: blurring and tarnishment. Dilution by blurring occurs when a defendant unauthorizedly uses a mark on dissimilar products and services than the famous mark, slowly reducing its distinctiveness. A hypothetical example of this would be a company providing mufflers under the brand name of "Nike." Obviously, consumers would not think that Nike mufflers were associated with the athletic shoes and apparel company, but allowing Nike mufflers to operate would lessen the distinctiveness of the Nike mark over time. Dilution by tarnishment occurs when a defendant uses a mark in unsavory contexts, for instance in an iPhone game where users give Barbie plastic surgery.Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-60488876021754381972014-01-23T15:20:00.001-06:002014-01-23T15:20:45.226-06:00When good juries go bad.Juries usually get it right, but not always. As long as a jury verdict is within the range of conclusions a reasonable jury could make, a judge will not overturn the decision. If a jury verdict is not one a reasonable jury would make, the judge can override the jury. <a href="http://businesscommercetrade.blogspot.com/2013/06/ea-sports-madden-nfl-video-games-breach.html" target="_blank">That is what happened in the Madden NFL video game lawsuit discussed last year</a>. <a href="http://www.sfgate.com/entertainment/article/Judge-reverses-huge-jury-award-over-Madden-video-5166704.php" target="_blank">The jury awarded the video game designer millions of dollars in damages, but the judge overturned the verdict because there was not sufficient evidence for the verdict</a>.Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-52886407558923189232014-01-22T08:38:00.000-06:002014-01-22T08:38:31.902-06:00On generic and arbitrary trademarks: the Candy Crush example.<a href="http://www.polygon.com/2014/1/21/5332560/what-kings-candy-trademark-really-means" target="_blank">The developer of the Candy Crush game for mobile devices recently sought a federal trademark registration for "Candy."</a> The article illustrates many common issues when registering a trademark over an existing word that would be <a href="http://businesscommercetrade.blogspot.com/2012/05/introduction-to-trademarks.html" target="_blank">generic</a> when used on or in connection with the good or service it literally describes. For instance, "Candy," when used in games for mobile devices, is not unlike "Apple" when used with computers and like technology. If "Candy," were used in connection with candy, it would be <a href="http://businesscommercetrade.blogspot.com/2012/05/introduction-to-trademarks.html" target="_blank">generic and incapable of trademark protection</a>. If "Apple," were used in connection with apples, it would also be <a href="http://businesscommercetrade.blogspot.com/2012/05/introduction-to-trademarks.html" target="_blank">generic and incapable of trademark protection</a>.<div>
<div>
<br /></div>
<div>
Basically, a <a href="http://businesscommercetrade.blogspot.com/2012/05/introduction-to-trademarks.html" target="_blank">generic mark</a> is one you would see in a cartoon or sit-com when a character is using a good. When you see a television character drinking beer, the can often says "Beer." When you see the character drinking cola, the can says "Cola." When you see the character eating chips, the bag says "Chips."</div>
</div>
Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-62421925243607196902014-01-21T08:56:00.002-06:002014-01-21T08:56:40.849-06:00The "12th Man" trademark dispute between the Texas Aggies and Seattle Seahawks.According to Texas A&M University's trademark application with the U.S. Patent and Trademark Office, the school has used the "12th Man" trademark <a href="http://businesscommercetrade.blogspot.com/2013/04/use-of-trademark-in-commerce-and-redux.html" target="_blank">in commerce</a> to refer to its football fans continuously since 1922. The NFL's Seattle Seahawks, who began playing football in 1976, recently began referring to its fans as the "12th Man." As you would expect, this caused a dispute between the two over who owned the "12th Man" mark.<br />
<br />
It is simple: Texas A&M owns the mark. The school used the mark <a href="http://businesscommercetrade.blogspot.com/2013/04/use-of-trademark-in-commerce-and-redux.html" target="_blank">in commerce</a> before the Seahawks. The school did not file for the 12th Man mark until the 1990s, but this was still before the Seahawks began using the mark.<br />
<br />
Accordingly, <a href="http://www.goodbullhunting.com/2014/1/19/5271954/12th-man-trademark-licensing-agreement-texas-am-aggies-seattle-seahawks" target="_blank">the Seahawks license the trademark from Texas A&M</a>. If Texas A&M did not either license the mark to the Seahawks, or did not file an <a href="http://businesscommercetrade.blogspot.com/2013/02/trademark-infringement.html" target="_blank">infringement</a> action or seek an <a href="http://businesscommercetrade.blogspot.com/2013/08/what-is-injunctive-relief.html" target="_blank">injunction</a> to prevent the Seahawks from using the mark, Texas A&M would risk a <a href="http://about.bloomberglaw.com/law-reports/naked-licensing/" target="_blank">naked license</a>. This means the school unintentionally abandons the mark and loses its rights in it.Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-28140120597670934302014-01-16T07:53:00.000-06:002014-01-16T07:53:27.676-06:00Can you be an expert witness?<div align="LEFT">
<span style="color: black;">To qualify as an expert witness in a given case, you need knowledge, skill, experience, training or education in a relevant field. An expert is commissioned by a party in a case to render his or her opinion. The opposing party will try to discredit you; your side will bolster your credentials.</span><br />
<span style="color: black;"><br /></span>
<span style="color: black;">The more knowledge, skill, experience, training or education you have in a field, the more likely you will qualify as an expert. If you qualified as an expert in prior cases, that helps you qualify in a later case. Qualifying as an expert in one case does not mean you are automatically an expert in another case.</span><br />
<span style="color: black;"><br /></span>
<span style="color: black;">Once you qualify as an expert, any testimony you provide must be based on sufficient facts or data, it must be the product of reliable principles and methods, and your opinion must result from the application of those principles and methods to the present case.</span><br />
<span style="color: black;"><br /></span>
You should be familiar with the legal process, but there are not many obstacles before you can market yourself as an expert. You need to make a website, register for expert witness directories, and <a href="http://businesscommercetrade.blogspot.com/2013/02/the-importance-of-forming-business.html" target="_blank">it is always prudent to form a business entity to protect yourself</a>. <a href="http://businesscommercetrade.blogspot.com/2014/01/what-do-i-need-to-do-to-start-business.html" target="_blank">If you are going to invest capital and/or have employees working for you, you will want to do more</a>. Many experts neither invest much capital nor have employees.</div>
<div align="LEFT">
<br /></div>
<div align="LEFT">
If you have an advanced degree, or years of experience in a given field, you can probably be an expert.</div>
Nathan A. Russellhttp://www.blogger.com/profile/09311410817932027626noreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-90163670741222929982014-01-15T14:09:00.000-06:002014-01-15T14:15:57.206-06:00What do I need to do to start a business?<span style="font-size: small;">To start a compliant business, there are a number of things you must do. </span><a href="http://businesscommercetrade.blogspot.com/2013/02/the-importance-of-conducting-trademark.html" target="_blank">You need a company name that does not infringe another person or company's trademark</a>. <a href="http://businesscommercetrade.blogspot.com/2013/02/the-importance-of-forming-business.html" target="_blank">You need to form a business organization to provide limited liability to your company</a>. <a href="http://businesscommercetrade.blogspot.com/2013/02/the-importance-of-forming-business.html" target="_blank">You need separate bank accounts for your business affairs to maintain limited liability</a>. You need to create an operating agreement or bylaws to provide the ground-rules for the day-to-day operation of your business.<br />
<br /><br />
<a href="http://www.irs.gov/uac/Form-SS-4,-Application-for-Employer-Identification-Number-(EIN)" target="_blank">You need to get a tax identification number from the federal government</a>. You need to get set up with an accountant. <a href="http://www.sba.gov/licenses-and-permits" target="_blank">You need to get any applicable licenses</a>, depending on the type of business you have. <a href="http://businesscommercetrade.blogspot.com/2013/12/employees-vs-independent-contractors-vs.html" target="_blank">You need to determine whether you will have employees, independent contractors or franchisees</a>. If you have franchisees, you may need to file an irrevocable consent to service of process with the secretary of state, depending on the state in which you are located.<br />
<br /><br />
On an ongoing basis, you may need to develop confidentiality or non-disclosure agreements for employees, independent contractors, customers or suppliers. You may need employment contracts governing the creation of intellectual property by company employees. You need licensing agreements for the license or transfer of any intellectual property.<br />
<br /><br />
<a href="http://businesscommercetrade.blogspot.com/2013/03/do-you-have-business-entity-have-you.html" target="_blank">You need to file biennial reports to avoid dissolution of your business</a>. <a href="http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Small-Business-and-Self-Employed-Tax-Center-1" target="_blank">You need to file taxes</a>, sometimes quarterly.<br />
<br /><br />
Obviously, it all starts with a good idea for a product or service your company will provide. You need a website, and you need a marketing plan. <a href="http://business.ftc.gov/documents/bus35-advertising-faqs-guide-small-business" target="_blank">As far as advertising; just do not lie</a>. If you claim something on your website or in your company brochures or catalogs, be able to prove it. If you cannot prove a claim or assertion, you probably should not be saying it.<br />
<br /><br />
E<span style="font-size: small;">very industry is different. What is required for one company in one industry in one state will be different from what is required of another company in another industry in another state. There are a lot of requirements in getting a business up and running, but it sounds worse than it is.</span>Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-84272266160951784242014-01-10T09:08:00.000-06:002014-01-10T09:08:35.550-06:00Navigating the requirements of federal warranty law.<div>
<a href="http://businesscommercetrade.blogspot.com/2013/03/express-warranties.html" target="_blank">I previously discussed the care a business must take to avoid unknowingly creating an express warranty in favor of consumers</a>. Different industries have different warranty requirements. <a href="http://www.business.ftc.gov/documents/bus01-businesspersons-guide-federal-warranty-law" target="_blank">This link from the FTC provides a lot of information on federal warranty requirements for businesspersons who provide consumer goods or services</a>. It is just a guide for compliance; it is not exhaustive.</div>
<div>
<br /></div>
<div>
The most important thing is to be truthful in your advertisements. Do not say things you cannot prove, and do not mislead consumers. Most consumer products require you to designate whether you provide a "full" or "limited" warranty, or no warranty at all. In those cases, a full warranty requires: (1) no limitation on the duration of implied warranties; (2) that you provide warranty service to anyone who owns the product during the warranty period; (3) that you provide warranty service free of charge; (4) that you provide either a replacement or full refund if you cannot fix the product, and the consumer gets to pick; and (5) you do not require consumers to do anything as a precondition for receiving service, unless you can prove that any precondition is "reasonable."</div>
<div>
<br /></div>
<div>
If you do not offer all of those things, you have a "limited" warranty (again, in applicable situations involving consumer goods). As with any warranty, your decision to offer a full, limited or no warranty must be conspicuously disclosed.</div>
Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-73990858406617753092014-01-09T10:32:00.000-06:002014-01-09T10:32:58.623-06:00"Redskins Hog Rinds" denied trademark registration due to the term's disparaging meaning.Possibly foreshadowing <a href="http://businesscommercetrade.blogspot.com/2013/03/the-redskins-mark-should-not-be.html" target="_blank">the inevitable demise of the Washington Redskins' trademark</a>, the <a href="http://www.washingtonpost.com/local/pork-rinds-cant-be-sold-under-trademark-redskins-hog-rinds-agency-rules/2014/01/06/954feea4-7726-11e3-b1c5-739e63e9c9a7_story.html" target="_blank">patent office denied registration for a trademark on "Redskins Hog Rinds," saying the term is disparaging to Native Americans</a>. This is not the first time the USPTO denied registration to a mark including the name "Redskins." The USPTO's rationale is based on <a href="http://businesscommercetrade.blogspot.com/2013/02/secondary-meaning-in-trademarks.html" target="_blank">secondary meaning</a>. Consumers associate "Washington Redskins" with the football team, but consumers would associate "Redskins Hog Rinds" with the racist term, not hog rinds.Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-16203508567316764362014-01-06T09:19:00.002-06:002014-01-06T09:19:48.671-06:00Copyright infringement of college football helmet designs.For almost 20 years, the University of Oregon's football team has been known for its unique uniform designs. Nike is the outfitter for Oregon, and Nike's founder, Phil Knight, is an Oregon alum. Knight's beneficence is the reason for the plethora of uniform designs, and he has also donated substantial sums of money to the school and football program.<div>
<br /></div>
<div>
<a href="http://www.hydrographicsinc.com/gallery/album/view/id/244" target="_blank">To design the football helmets for Oregon and other college football teams, Nike uses a company named Hydro Graphics</a>. Hydro Graphics uses <a href="http://en.wikipedia.org/wiki/Hydrographics_(printing)" target="_blank">water transfer printing</a> to apply the designs to the football helmets. After creating the helmets, it is unclear whether Hydro Graphics retains ownership of the copyright, or assigns the copyright to Nike. In either case, the copyright covers the stylistic design of the helmets, not the functional part of the helmets themselves.<div>
<br /></div>
<div>
<div>
<div>
<a href="http://www.hydrographicsinc.com/gallery/album/view/id/367" target="_blank">Hydro Graphics developed this series of winged-designs for Oregon</a>, to represent the school's mascot, the Ducks. <a href="http://bleacherreport.com/articles/1907113-rice-owls-liberty-bowl-helmet-takes-style-cues-from-the-oregon-ducks" target="_blank">The Rice University Owls used a substantially similar or identical design on its football helmets for this year's Liberty Bowl</a>. Rice's team outfitter is Adidas, not Nike. <a href="http://www.hydrographicsinc.com/gallery/album/view/id/244" target="_blank">Hydro Graphics does not list Rice as one of its customers in its portfolio</a>. So, the helmet designers or the copyright owners of the Oregon helmets (Hydro Graphics or Nike) appear not to be the same people who designed the Rice helmets.</div>
<div>
<br /></div>
<div>
Unless Rice's designer licensed the copyright from Hydro Graphics or Nike, or Hydro Graphics designed the helmet and did not place it on its portfolio, this is an actionable case of <a href="http://businesscommercetrade.blogspot.com/2013/05/usher-and-justin-bieber-sued-for.html" target="_blank">copyright infringement</a>.</div>
</div>
</div>
</div>
Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-61026442220718646802014-01-02T08:59:00.002-06:002014-01-02T08:59:34.560-06:00On series limited liability companies.A <a href="http://en.wikipedia.org/wiki/Series_LLC" target="_blank">Series LLC</a> (SLLC) is a little-known type of <a href="http://en.wikipedia.org/wiki/Limited_liability_company" target="_blank">limited liability company</a> (LLC) providing <a href="http://businesscommercetrade.blogspot.com/2013/02/the-importance-of-forming-business.html" target="_blank">limited liability</a> to its managers/owners. With a regular LLC, as long as the managers keep their business and personal affairs separate, they are likely to maintain limited liability if involved in a business lawsuit.<br />
<br />
SLLCs are allowed in many jurisdictions. They provide <a href="http://businesscommercetrade.blogspot.com/2013/02/the-importance-of-forming-business.html" target="_blank">limited liability</a> among one or more "series," which are sets of transferable interests, such as tangible or intangible property. The debts and liabilities of one series are not enforceable against the assets of the LLC or any other series. For LLCs with a number of different property interests, SLLCs can provide further protection from liability.<br />
<br />
To properly isolate one series from another or the parent LLC, separate bank accounts must be maintained for all series and the LLC. Everything must be adequately capitalized. If the LLC is dissolved, a series may still operate if the operating agreement permits it to do so. Likewise, termination of a series does not dissolve the parent LLC. Accordingly, in situations involving intangible property interests, SLLCs can be beneficial due to the ease of transfer or disposition.Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-40289139519244158732013-12-31T09:49:00.003-06:002013-12-31T09:49:54.051-06:00Previous posts on contract, business and commercial law.<a href="http://iowaiplitigation.com/contractbusiness.html" target="_blank">Here is a link to some of my previous posts on contract, business and commercial law</a>. Some are on simple topics of general interest. Others are more esoteric.Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-23598551480705824982013-12-31T09:47:00.000-06:002013-12-31T09:47:47.692-06:00Previous posts on IP litigation and IP generally.<a href="http://iowaiplitigation.com/iplitigation.html" target="_blank">Here is a link to an index of some of my previous posts on intellectual property litigation</a>. There should be more added to the list in 2014.Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-707204326718425202013-12-23T10:37:00.004-06:002013-12-23T10:40:13.071-06:00On copyright ownership.If you create a work that you can otherwise copyright, you would not be able to copyright it if you assigned your rights in the work to someone else, created it for hire, or created it <a href="http://businesscommercetrade.blogspot.com/2013/06/ea-sports-madden-nfl-video-games-breach.html" target="_blank">within the scope of your employment</a>. Unless you are well-versed in copyright law, you may not know if you did this.<br />
<br />
If you do not own the work, you can seek a license from the owner. If you own the work, you can license it to others.Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-60432852961172795042013-12-19T08:55:00.005-06:002013-12-19T08:55:43.249-06:00Choosing the right business entity when starting a company.<a href="http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Business-Structures" target="_blank">Choosing an organizational structure is one of the more important decisions you will make in starting a business</a>. <a href="http://businesscommercetrade.blogspot.com/2013/11/if-you-are-in-general-partnership-make.html" target="_blank">You only want a partnership if it is a limited liability partnership</a> (LLP) or <a href="http://businesscommercetrade.blogspot.com/2013/12/limited-partners-have-limited-liability.html" target="_blank">limited liability limited partnership</a>. You may want a limited liability company (LLC), which has characteristics of both LLPs and corporations. In fact, <a href="http://www.irs.gov/Businesses/Small-Businesses-%26-Self-Employed/Limited-Liability-Company-(LLC)" target="_blank">LLCs are not recognized by the IRS</a>. If you are a one-person LLC, the business entity will be disregarded for federal tax purposes. <a href="http://www.irs.gov/Businesses/Small-Businesses-%26-Self-Employed/Limited-Liability-Company-(LLC)" target="_blank">If you are in a multiple-member LLC, you will be taxed as a partnership by default</a>. If you, your lawyer and accountant determines it is economically advantageous to be taxed as a corporation, <a href="http://www.irs.gov/uac/Form-8832,-Entity-Classification-Election" target="_blank">you can elect to be taxed as such</a>.<br />
<br />
If numerous stakeholders are involved, you might want a corporation. As common sense indicates, corporations are taxed at the federal corporate tax rate. For any business entity, state tax rates may differ, so individual considerations will predominate in deciding what the best organizational structure is for your business.Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-41709867932260282552013-12-18T08:51:00.002-06:002013-12-18T08:51:31.512-06:00Iowa head football coach Kirk Ferentz likely has a defamation claim against a former player.Embattled former University of Iowa wide receiver Derrell Johnson-Koulianos (a/k/a "DJK") <a href="http://network.yardbarker.com/college_football/article_external/derrell_johnson_koulianos_went_on_an_absolute_tirade_about_iowa_coach_kirk_ferentz_on_twitter/15337333?linksrc=story_home_module_head_15337333" target="_blank">went on a recent Twitter rant leveling defamatory allegations against his old coach and current Iowa head football coach, Kirk Ferentz</a>. DJK got in plenty of trouble at Iowa, and <a href="http://hawkcentral.com/2010/12/07/iowa-football-djk-arrested-on-drug-charges/" target="_blank">was kicked off the team in 2010 after a drug arrest</a>. He never played again for the school, did not play in the NFL, and was unsuccessful in tryouts with the Arena Football and Canadian Football Leagues.<br />
<br />
DJK alleges that <a href="https://twitter.com/coachkoul/status/413072949101752321" target="_blank">Ferentz once required DJK to wear a trash can on his head during a practice,</a> and was <a href="https://twitter.com/coachkoul/status/413048468043624448" target="_blank">responsible for arranging the drug arrest that resulted in DJK's removal from the football team</a>. <a href="https://twitter.com/coachkoul/status/413034301018501120" target="_blank">DJK claims that all of this will be included in a book to be released in Iowa and Ohio in 2014, but no book deal has been arranged</a>.<br />
<br />
For a public figure to have a viable claim for defamation, the defendant must have said or written a false and defamatory statement of fact about a third person, with recklessness or malice, and no First Amendment privilege to do so. DJK's assertions are statements of fact that are likely false. If they are true, Ferentz has no claim, but DJK's veracity has been shown to be less than reliable in the past.<br />
<br />
The statements were published via Twitter, and <a href="https://twitter.com/coachkoul/status/413046408858447872" target="_blank">appear to have been published for the sole purpose of damaging Ferentz's reputation</a>. If Ferentz can show he suffered damages because of the statements, which will not be easy, he has a viable defamation claim against DJK.Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-6783022358355071732013-12-17T08:49:00.002-06:002013-12-17T08:49:41.372-06:00Employees vs. Independent Contractors vs. Franchisees.When starting a business, you must decide whether you will work with <a href="http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Employee-(Common-Law-Employee)" target="_blank">employees</a>, <a href="http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Defined" target="_blank">independent contractors</a>, or franchisees. All are different and each has a different relationship with the principal of a business. Principals or bosses have the most potential liability with <a href="http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Employee-(Common-Law-Employee)" target="_blank">employees</a>; they have the least potential liability with <a href="http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Defined" target="_blank">independent contractors</a>.<br />
<br />
If you have a business, it does not really matter whether you call your workers <a href="http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Employee-(Common-Law-Employee)" target="_blank">employees</a> or <a href="http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Defined" target="_blank">independent contractors</a>. The specifics of the relationships matter, most importantly the amount of control you exercise over the workers and how they conduct their daily tasks. The more control you exercise over them, the more likely you have <a href="http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Employee-(Common-Law-Employee)" target="_blank">employees</a>. If the workers control their hours and how they do their job, and pay for their own supplies, you are more likely to have <a href="http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Defined" target="_blank">independent contractors</a>.<br />
<br />
<a href="http://www.irs.gov/Businesses/Small-Businesses-%26-Self-Employed/Independent-Contractor-Self-Employed-or-Employee" target="_blank">The IRS provides guidance on the distinction between employees and independent contractors</a>. As you would expect, <a href="http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Understanding-Employment-Taxes" target="_blank">there are more tax requirements with employees</a> <a href="http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Forms-and-Associated-Taxes-for-Independent-Contractors" target="_blank">than with independent contractors</a>. An attorney can help if you are unsure whether you have employees or independent contractors, or <a href="http://www.irs.gov/pub/irs-pdf/fss8.pdf" target="_blank">you can file a Form SS-8 with the IRS, which is a request for a formal determination</a>. There is risk in filing a Form SS-8 if you have been calling your workers independent contractors, because you may be required to pay past <a href="http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Understanding-Employment-Taxes" target="_blank">employment taxes</a> if the IRS determines that you have employees. But it does provide certainty for your business going forward.<br />
<br />
If you want to franchise your business, the requirements are much different. Federal law requires a business owner to provide the prospective franchisee with a <a href="http://en.wikipedia.org/wiki/Franchise_Disclosure_Document" target="_blank">Franchise Disclosure Document</a> at least two weeks before the <a href="http://en.wikipedia.org/wiki/Franchise_agreement" target="_blank">Franchise Agreement</a> is signed. The <a href="http://en.wikipedia.org/wiki/Franchise_Disclosure_Document" target="_blank">Franchise Disclosure Document</a> has many requirements, but all are designed to protect the franchisee's investment, by providing transparency before the franchisee invests money in the franchise.<br />
<br />
Additionally, each state's laws differ on what other disclosures may be necessary. The formalities and specific requirements are strict in franchise law. If you get one wrong, your entire <a href="http://en.wikipedia.org/wiki/Franchise_agreement" target="_blank">Franchise Agreement</a> may be <a href="http://en.wikipedia.org/wiki/Void_(law)" target="_blank">void</a>.Anonymousnoreply@blogger.com0tag:blogger.com,1999:blog-7979991253655375806.post-26763947619297056502013-12-16T12:52:00.001-06:002013-12-16T12:52:22.646-06:00Common misconceptions about trademark registrations.<a href="http://news.cincinnati.com/article/20131215/BIZ/312150022/" target="_blank">This article addresses some misconceptions about federal trademark registrations</a>. Several have already been discussed, such as <a href="http://businesscommercetrade.blogspot.com/2013/11/placing-tm-next-to-your-company-name-or.html" target="_blank">the juxtaposition of "TM" with your unregistered mark</a>, and <a href="http://businesscommercetrade.blogspot.com/2013/02/the-importance-of-conducting-trademark.html" target="_blank">the conduct of a proper trademark search</a>. The article focuses on start-ups, but even if you are an established business, it may not be too late to do these things with your company.Anonymousnoreply@blogger.com0