June 11, 2010 in Business, Business, Legal Articles, Legal News by jferris

Keyword Infringement Common in Cyberspace

Internet law is a bit like a Wild West frontier town without a sheriff in sight. Trademark infringement is common online.

“Trademark infringement online is not that well understood, nor do people comprehend that what they are using from someone else’s site without express permission, amounts to stealing,” Los Angeles Internet law attorney David Alden Erikson outlined.

“When it comes right down to it, trademark infringement on the Internet is out of control. Quite regularly you will see third parties using established trademarks and domain names, etc. with the trademark holder’s permission. Furthermore, the usage of third party trademarks as keywords in ads on MSN, Yahoo, Google and other ad networks is very controversial, as is using those marks in the text of ads triggered by keywords,” added Erikson.

This brings up the need to know about keyword trademark infringement. “Basically it works like this,” outlined Erikson. “Trademark law prevents third parties using established trademarks when using them would confuse consumers about the origin, sponsorship, source or affiliation between the rightful trademark holder and the third party using the mark,” he explained. Of note is that fact that keyword infringement lawsuits have been launched against companies using a trademark and companies like Google who offer the software that people use to advertise.

In a nutshell, bidding on trademarks as keywords will trigger an infringement threat letter from the holder of the trademark; which makes eminent sense, because bidding on their trademarks as a keyword for advertising competition acts to divert their consumers to the competition by taking advantage of the trademark holder’s good will.

On the other side of the fence, the person bidding for the trademark sees using it as a bonus to give consumers even more choices. In other words, the issue is whether or not keyword advertising is an illusory business or valuable marketing. The courts haven’t really delved into this issue a whole lot. Those that have agree that none of the general rules apply.
“What it all comes back down to is whether or not – the ultimate test – is whether the use of the keywords by others (than the original holder) would confuse buyers. This also brings up the concept of ‘initial interest confusion.’ This means most buyers wouldn’t be confused once they got to the competing website, but allows for a trademark infringement claim if the buyer would ‘reasonably’ have been deceived before clicking on the ad,” said David Erikson, a Los Angeles Internet law attorney.

“When push comes to shove, if you go ahead and use trademarks as keyword triggers and also use them in ad text for keyword ad programs, watch your step to avoid being sued. If in doubt, give me a call and we’ll figure it out,” offered Erikson.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

June 11, 2010 in Business, Legal Articles by jferris

Zippo Sues over Chinese Knockoff Lighters

Knockoffs don’t just happen in the fashion industry, as this case demonstrates. Here a lighter is the leading light in a lawsuit.

Most people tend to think of knockoffs in terms of the fashion industry: a knockoff of a famous designer’s dress, shoes, handbag or jacket, etc. “Think McQueen vs. Madden, a rather famous shoe knockoff lawsuit. While clothing seems to have been the major source of the latest knockoff lawsuits, it looks like other companies are getting fed up with people copying their designs and trying to pass them off as their own. Witness this latest case of lighter-making giant Zippo Manufacturing Company who is suing four Chinese companies,” suggested David Alden Erikson, a Los Angeles fashion law attorney.

It’s not just the lawsuit that is making headlines in this case; it’s the fact that Zippo is going to be laying off about 15% of their production line workers, in part because of the knockoffs of their lighters. The country really doesn’t need any more layoffs in these tough economic times, but that appears to be what will happen soon. The company has filed a complaint with the U.S. International Trade Commission to stop the manufacturing and sale of the knockoffs from the biggest source of knockoffs in China.

Along with a downsizing in their workforce, Zippo also cites a 30% drop in their business, due to the knockoffs. If they can stop the flood of fake lighters and business picks up, the out-of-work employees will be called back. “While a lighter is hardly an item of clothing, the principal behind it being ripped off is quite similar to a fashion designer seeing their creations sold at cheap prices to anyone who wants a look alike,” added Los Angeles fashion law attorney Erikson.

Sick of being knocked off, fashion designers have started to fight back and are working with the Council of Fashion Designers of America to get their fashions copyrighted. Those who can’t afford the big ticket original designs appreciate getting the almost originals for less money, but fashion designers have had it with the rip-off artists cutting into their bottom line profit.

If designers are able to register their designs with the U.S. Copyright Office, they would then be protected for three years, and it would be illegal for anybody to make anything even remotely similar. “Would this solution, should it come to pass, work for knocked off lighters? It may, but only time will tell who will win the war of the similar looking product with a similar (but misspelled) name at the cheaper price,” speculated Erikson.

The whole question here is the rights of designers and original makers of various items (purses, jewelry, watches, etc.) to have their product protected from someone else who would steal it and profit from it. This problem isn’t really new, but the time has come when the original makers are fighting back and taking action.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com

June 11, 2010 in Business, Legal Articles by jferris

GINA Has Something to Say in the Workplace About Discrimination in Employment

Just recently the Genetic Information Nondiscrimination Act (2008) went into effect. There is the potential to use genetic information to discriminate in employment.

The Genetic Information Nondiscrimination Act (GINA) gives the nod to the fact that advances in genetics is crucial, indeed critical, to medical progress. Unfortunately, these advances held the potential to have the information misused against employees. In order to avoid this possibility, Congress passed GINA to ostensibly protect genetic information of workers and ban employment discrimination that may be based on genetic information.

What does genetic information include? Typically, it is a sign of the possible manifestation of a disease or disorder that may run in an employee’s family. Genetic testing usually takes place in clinical research or other areas that examine human RNA, DNA, proteins, chromosomes and/or metabolites which detect chromosomal changes, mutations or genotypes.

Just to avoid some confusion here, according to the Act, it is against the law for employers to fire, not hire or discriminate in other ways against a worker. This would apply to circumstances dealing with pay and the conditions and terms or privileges of their employment based on genetic information. It is also against the law for employers to refuse workers opportunities or use genetic information against them to affect their employment status.

It would seem logical that GINA would also make it illegal for an employer to ask or demand genetic information from an employee or their families. There are, however, some exceptions to the rules, and this is certainly an area you will want to speak to an experienced attorney about if you find yourself in the position of having been requested to provide genetic information.

The exception to the rules come into play when an employer – by accident – asks or requires a family medical history; when a company offers health or genetic services as a component of a wellness program and worker’s provide their written consent; when an employer asks for or requires a family medical history from workers under the FMLA; where the company buys material publically available that includes a worker’s family medical records; and where the genetic information is used for monitoring biological effects of toxic substances in the workplace.

It may seem like there are just too many exceptions that an employer could use to get the prohibited information and if that is the case, then what was the point of the Act in the first place? Fair question and a valid one too. This Act does address this by saying that even if the employer gets genetic information under an exception, they are still prohibited from using it against a worker for any reason.

While there are other safeguards built into this Act that are intended to protect workers whose employers to happen to get their genetic information, it still raises questions about violation of secrecy and privacy. If the employee happens to be dead set against that kind of information being at the hands of their employer and they say so, the company may not retaliate against them.

As you can see, this is a new area and largely untried and untested in the legal arena. It will be interesting to see how the rules are interpreted, if a case that’s filed under a breach of the provisions of this Act makes it to court.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

June 11, 2010 in Business, Legal Articles by jferris

Only Three Years of Protection for New Designs – Maybe

Young entrepreneurs in the fashion design industry often want to know if they are able to copyright their latest creation. Unfortunately, they can’t.

Copyrighting a fashion design is not possible because it does not provide the creator of that design with the kind of protection they really want – protection from knockoffs. In fact, the converse is true when a fashion designer gets ready to launch a new design; they expect they will be copied. Often, they get knocked off before their product even hits the market; such is the cutthroat competition within the industry.

Until recently, this dire state of affairs has caused a great deal of angst among designers who want to go places but want their creations to remain their own and not show up under someone else’s label as a “less than perfect copy” of the original. There may be good news on the horizon in the form of the Design Piracy Prohibition Act – if it actually passes into law. This bill would offer copyright protection for fashion designs widely defined as eyeglass frames, duffel and tote bags, handbags, purses and clothing. Admittedly, clothing is a tad vague, but chances are that would be sorted out in the courts when push came to shove and a lawsuit was filed.

This Act actually amends Chapter 13 of the Copyright Act, which you may find rather interesting since that chapter provides protection to one category of useful articles, boat hull designs. Wondering what boat hull designs have to do with clothing, et cetera? The key here is the term “useful article.” Currently, fashion designs are classified as “useful articles” and have what is referred to as an intrinsic utilitarian function. There is more to that definition, but you have the key element.

Right now, designs of useful articles may be protected under copyright law “only if such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” In addition, there is very limited protection to be had under trade dress (trademark) and design patents (patent) law. The problem with those two “protections” is that they’re not practical for the fashion industry.

The proposed Act suggests a three year protection for fashion designs. Why? It’s limited because typically fashion trends are rather short-lived at the best of times. You’ll also find out that applications for protection may be filed at the U.S. Copyright Office, where it would be put on a database of protected designs and images of that design.

The Act also aims to narrow the definition of innocent infringement so that the courts are able to impose liability on those who had reasonable grounds to believe a design was protected. It would also boost damages for infringement, something the fashion industry would be enormously happy to see.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

June 7, 2010 in Business, Legal Articles by jferris

Qui Tam Fraud

Not many people know what Qui Tam is or what it means. It’s a branch of law that protects the government.

Qui Tam refers to a set of rules that lets people blow the whistle (a.k.a. Whistleblower legislation) on those who try to defraud the government. The fraud committed would violate the False Claims Act and those who do step forward and speak up about the illegal doings of others are often called relators. The plaintiff/relator may then bring a lawsuit on behalf of the US government. It’s important to note that none of this takes place unless the defendant has “knowingly” committed fraudulent acts against the government.

You’d be right if you guessed that cases like this are tough to prove, tough to pursue in the courts and tough on which to collect. However, having said that, for those that choose to stay the course, the rewards are often fairly lucrative, since in the event of a case win, the plaintiff gets to collect a relatively large amount of cash based on the total judgment.

The main benefits of Qui Tam law are that it protects the government when someone has been ripping them off, allows recovery of the ill gotten funds on behalf of the government, and pays quite well in the long run. If people didn’t come forward to report on other individuals who were cheating the government out of millions of dollars, there would be a whole lot of tax money washing away down the drain.

While you might think that the whistleblower would be in a tough spot for ratting someone out, the Qui Tam law protects the relator and makes it illegal to harass, fire, demote or otherwise create problems for the individual. They are also accorded some level of privacy relating to their identity. This law is applicable in all states and in various different forms, and if you are in a situation where you have evidence of fraud against the government, speak to an experienced attorney to find out what the whistleblower legislation says in your state.

Generally speaking, there is a fairly broad range of areas in which Qui Tam actions are filed, and they include Medicare fraud (billing for services not rendered); postal service fraud (faking the weight of parcels to not pay the full amount to the post office for services rendered); student loan fraud (lying to get more federal funds); and customs fraud (lying about the value of items being shipped).

If you have questions about Qui Tam law and how it may affect you if you do file a lawsuit, speak to a skilled attorney who will be able to answer your questions and outline what happens at every stage of the process.

June 7, 2010 in Business, Legal Articles by jferris

When a Life Is Devastated Forever

Life altering injuries are referred to as catastrophic. It means a person’s whole life has been turned upside down.

Most injuries happen out of the blue; the result of a car accident, a slip and fall, a sports injury or being involved in an 18-wheeler accident. “The injuries sustained in instances like those may, in some cases, be classified as catastrophic or life altering when they totally disrupt an individual’s ability to earn a living or shake up their life in a horrendously painful and injurious manner. Injuries like these are the kind that need exquisitely balanced management in order for the victim and/or patient to be able to get home,” detailed Seth Wilburn, who writes for the Gomez Law Group in Dallas.

These types of injuries are often highly complex and involve one or more of a person’s body systems. It takes many people and many hundreds of hours to assist a person this badly hurt. Most often their goal is to go home and be as independent as possible; sometimes that just isn’t possible.

The other catastrophic consequence of an accident so bad that it debilitates the victim is the loss of earning power, and quite often, the loss of a job. The victim is suddenly left in the awkward position of having nothing to live on, nothing to pay bills with and no hope of being able to secure financial resources to allow them to live and get treatment.

In instances like this, you will need the services of a highly skilled Dallas personal injury attorney; an attorney with a track record in handling cases like this – one who is ready and willing to work with vocational and economic specialists, life care planning specialists and experts in rehabilitative medicine.

“Claims like this are complex and complicated and require special knowledge on how to economically evaluate the injuries. The economics of catastrophic injuries are such that the client or plaintiff needs to secure enough money to live and pay medical bills for the rest of their life,” Wilburn explained. The goal? The goal is to get the client the best possible future out of the ashes of what was once a normal, happy and active life.

There are so many types of catastrophic injuries that a book could be written about them, but suffice it to say that the most common ones tend to be paralysis, amputation and burns. “If you have been in an accident and your whole life just went down the tubes, you need to seek legal help to secure your future. There are no ifs, ands or buts about that,” suggested Wilburn.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

June 7, 2010 in Business, Legal Articles by jferris

Blowing the Whistle Loudly for Unsafe Working Conditions

Those who speak out about unsafe conditions in a workplace or other things are called whistleblowers.

Most often people associate the term whistleblower with someone who “rats” out someone else for not doing the right thing. While in general that is about what it amounts to, it is far more important than that and whistleblowers serve a very important function in today’s society. They are bellwethers of a company’s actions, an indicator that all is not well in corporate land.

Thanks to whistleblowers and whistleblower legislation, workers may report inappropriate or unsafe work conditions to authorities – and may “not” be punished for doing so. This takes a whole lot of guts to pull off, and at one time there wasn’t much protection for people who were brave enough to stand up for what is right. Over the years, the federal government realized they needed legislation to protect the rights of those who spoke up and out about wrongdoing.

What are some of the more common reasons an employee would take their employer to the authorities? There are a fairly wide variety of reasons, but most commonly, attorneys who do this type of work tend to see employees blowing the whistle on unhealthy or unsafe work conditions, illegally using federal funding or illegal activity, and negligent behavior.

When someone takes the chance to stand up and speak out against wrongdoing, the federal government would be remiss if they didn’t offer those individuals some protection. Those who do speak up are going to ultimately benefit the federal government by usually recovering a significant amount of money for them – or rather on their behalf.

If you happen to be in a sticky situation at work and want to do something about it, but aren’t sure what kinds of protections may apply to you, check out the Occupational Safety and Health Act, the Federal False Claims Act, the Whistleblowers Act applicable to your state, and the Sarbanes-Oxley Act. If you do proceed to report and get fired or are the target of retaliation, you have the right to sue your employer. To do that you will need to contact a Dallas employment lawyer.

If you are in a situation like this, you will want to talk to an experienced Dallas employment lawyer to find out precisely what your options are and what your rights are under the various acts. You will need someone in your corner to fight this action for you, as it is the law that any actions taken under the Whistleblowers Act must be handled by an attorney.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

June 7, 2010 in Business, Legal Articles by jferris

Shhhhh It’s a (Trade) Secret

Just about every business or industry has its secrets. They also want to keep those secrets from getting out.

When you stop to think about it, it makes sense that most businesses and enterprises have secrets; secrets that protect how they do business, how they make their product, what methods are used and not used, and what inventions they may have. These are the things that they want to hold close to their chest, because if the information got out, they’d be competing against themselves with another company who acquired their information.

Rather than lose their competitive edge, companies with trade secrets make every effort to keep them and have been known to sue people who knowingly sell or accidentally give away critical information about how they do business. This deliberate subterfuge or accidental gaff is a form of unfair competition and those that are doing business in the marketplace are expected to do so fairly – meaning not resort to stealing another’s secrets. If you don’t understand how this works, talk to a seasoned Dallas business lawyer and find out. Better safe than sorry later.

Thankfully there is an Act in place that provides protection against those who get product formulas, techniques, devices, methods and secrets by less than honest means; means which include theft, spying via some form of electronic wizardry, spying by other means (perhaps the old-fashioned way), breach of duty, convincing someone else to breach their duty, misrepresentation, and forking over pots of money to bribe someone for the secret(s). This is where the Uniform Trade Secrets Act comes into play.

The basic kernel of the Act is that if someone profits from ill-gotten information, then unfair competition may exist. Keep in mind that this Act will also mete out punishment if the economic benefit is potential or real; and furthermore, this applies even if the person who stole the secret(s) doesn’t attempt to take advantage of that knowledge.

This is another area of the law that will allow punitive damages, much like some cases in the area of personal injury. For personal injury, punitive damages are awarded for really gross negligence; when dealing with stolen trade secrets, punitive damages may include financial damages, royalties and shared profits. In other words, stealing someone’s secrets is a serious matter and the law doesn’t mess around to make its point when it comes time to own up.

Courts may even grant injunctions to force a company to stop selling an item or service that came about as the result of a stolen secret. These are the things you need to know before you breach an agreement, either on purpose or unwittingly, and any Dallas business lawyer will tell you that right up front on consultation.

Another way that companies work to keep their secrets secret is to ask that workers and contractors sign a confidentiality agreement and spell out in that contract what will happen (including punitive measures) if those secrets are stolen. If a worker breaches the agreement, the company may be able to launch a lawsuit against the person to stop their information from getting out.

When in doubt about what is and what is not a trade secret, or what your agreement says and means, take the time to talk to highly qualified Dallas business lawyer and get the real scoop on what you need to know.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

June 7, 2010 in Business, Legal Articles by jferris

When Product Liability Affects Your Knees

Knee replacements are supposed to mean a person can walk again. In this case, the replacements are failing.

Product liability law is designed to give consumers protection against defective products that harm them. While most people tend to think of defective cars, baby cribs, toys, grills, blinds and other items, not many people think about the possibility of a knee replacement implant failing. Unfortunately, this is what is happening with the Zimmer NexGen knee replacement implants.

It looks like a fair number of people across the US are getting ready to file lawsuits against the company citing product liability, failure to warn and negligence, thanks to knee replacement patients and their surgeons discovering the implants are defective. Being sued won’t be a first for this company, as they are also being taken to task for defective hip replacements – the Zimmer Durom Cups. Despite people insisting the knee implants be recalled, they are still on the market. However many surgeons are not recommending they be used for knee replacement surgery.

While the synthetic knee implant is a good idea, it apparently does not hold up under actual field conditions – meaning that once it is implanted it tends to become loose and cause excruciating pain, not to mention the possibility of another surgery to fix it. You might be able to see how this could possibly cause a whole slew of personal injury lawsuits, based on a defective product.

The technology is porous fiber metal with a cobalt-chromium-molybdenum alloy that caps the thigh bone where it connects to the tibia. No cement is used in this process. Since the implant’s introduction to the medical device market in 2003, it has consistently racked up high failure rates – up to 36% of the implants are loose after only two years. Over 150,000 of these devices have been sold in the US, making Zimmer a tidy profit of approximately $1.75 billion for 2009. The 36% failure rate means at least 54,000 people may have trouble with their “new” knees.

If this has happened to you, you may be entitled to compensation for your personal injuries. To find out if you do qualify, speak to an attorney with experience in handling products liability cases; a Sacramento personal injury attorney.

Deborah Barron is a Sacramento business lawyer, Sacramento employment lawyer, and Sacramento personal injury lawyer in California. To learn more, visit www.lawbarron.com.

June 7, 2010 in Business, Legal Articles by jferris

Underpaid, Overworked Nursing Home Staff Cause for Worry

The actual cost of care for those in a nursing home is astronomical. Unfortunately, the care received doesn’t always reflect the price charged.

It’s a well-known fact that more and more seniors will eventually need the services offered by a nursing home. The sad part is that the prices charged to care for seniors do not, in many cases, reflect the kind and quality of care residents actually get.

“The average cost of nursing care for one year in the US is $71,000, and for that kind of money, the family and the resident would expect a good level of care. What is happening instead is their family members are being abused and every day face substandard care because the nursing home is understaffed and overwhelmed,” outlined Barron, a Sacramento personal injury lawyer of the Barron Law Office in California.

In homes where the staffing is pushed to the straining point and people are hard pressed to keep up, there are often incidents of abuse and neglect. “Whether or not it is as a direct result of being understaffed, having inadequately trained staff or the abuse is isolated, it should not be happening. Aside from this being a human rights issue, where the elderly deserve to be cared for with respect and dignity, no one deserves to be abused in ‘any’ fashion,” added Barron.

Most of the nursing homes in the US are profit oriented and in many cases, just don’t have enough staff to handle their patient load. In fact, roughly 90% of nursing homes can’t keep up with the care demands of their patients. Not only are many employees overworked, but they are underpaid for the work performed, leading many of them to quit. There are actually some homes that see a complete staffing turn over every year. This is a recipe for disaster when it comes to caring for the elderly.

“Currently, there is a focused effort in Washington to try and make changes coming in the form of the Elder Justice Act. It sets aside hundreds of millions of ‘federal’ dollars to battle elder abuse. Its companion act is the Patient Safety and Abuse Prevention Act, and it’s aimed at those in long-term care,” indicated Barron. There is a great deal of hope with the passage of these two Acts that elder abuse will be put to a stop.

In the meantime, if anyone suspects their relative is being abused or neglected, take those suspicions to a Sacramento personal injury attorney with experience in this area. “If you want to protect your family member and others from being harmed, we can help,” said Barron.

To learn more, visit http://www.lawbarron.com.