New York Says #MeToo: New State and City Laws Broaden Worker Protections

Following nationwide attention on sexual harassment in the workplace, both New York State and New York City have taken significant steps towards strengthening protections against sexual harassment on the job. 

New York State:

One new law requires all New York employers to conduct mandatory, annual sexual harassment training, beginning October 9, 2018.

At a minimum, the training program must be interactive, explain what constitutes sexual harassment, provide examples of conduct constituting unlawful sexual harassment, provide information on remedies available to victims under federal and state laws concerning sexual harassment, and provide information on employees’ rights and all available forums for adjudicating sexual harassment complaints.  Employers must also implement a policy on sexual harassment, which must meet certain minimum requirements outlined in the new law. 

The law also contains several other measures to combat sexual harassment, including:

• Effective immediately, expanding the New York State Human Rights Law (“NYSHRL”) to provide for employer liability for sexual harassment of non-employees, such as contractors, subcontractors, vendors, consultants or other individuals providing services under a contract in the workplace.  This is a significant expansion of the NYSHRL, which previously protected only employees.
• Effective July 11, 2018, prohibiting nondisclosure or confidentiality provisions in agreements that seek to settle claims relating to sexual harassment, unless it is the complaining party who seeks confidentiality and provided that the complaining party has 21 days to consider the nondisclosure provision and 7 days to revoke his/her acceptance of the nondisclosure provision.
• Effective July 11, 2018, prohibiting mandatory arbitration for sexual harassment claims, unless such arbitration clauses are contained in collective bargaining agreements.

New York City:

Employers who operate in New York City are also expected to comply with the Stop Sexual Harassment in New York City Act, which was signed into effect by Mayor de Blasio on May 9, 2018.  The law contains its own training requirements aimed at sexual harassment prevention and applies to NYC employers with at least 15 employees.

Specifically, starting April 1, 2019, NYC employers must conduct annual interactive training on sexual harassment for all employees and interns who work more than 80 hours a year.  Among other things, this training must define and provide examples of sexual harassment, explain federal, state and local anti-harassment laws, describe the employer’s internal complaint process as well as the complaint process available through various administrative agencies such as the New York City Commission on Human Rights (Commission), and define and provide examples of prohibited retaliation. 

Starting September 6, 2018, NYC employers will also be required to post and display anti-sexual harassment rights and responsibilities posters. The poster will be made available by the Commission.

Starting immediately, the New York City Human Rights Law has been amended to expand coverage of sexual harassment claims to employers with fewer than four employees.  Previously, only employers with four or more employees were covered by the law.  In addition, starting immediately, the period of time to file sexual harassment claims with the Commission is extended from one year to three years.

Please don’t hesitate to reach out to the firm to assist in modifying your company's internal procedures to comply with these directives.

Client Alert: DMCA Safe Harbor Protection. Action Required by December 31, 2017.

The Digital Millennium Copyright Act (the “DMCA”) provided a “safe harbor” to shield online service providers from certain copyright infringement claims based on user generated content (“UGC”). To be entitled to the safe harbor for UGC, you have always had to register your DMCA agent information with the Copyright Office, listing your website, contact information and the name of an individual agent so that copyright owners could notify you of infringing UGC on your website. This was previously accomplished by sending in a printed form to the Copyright Office.  In order to continue to receive the DMCA safe harbor protections, you must now register (or-register) using the Copyright Office’s new online DMCA registration system by December 31, 2017.  The cost is just $6 per registration, and the registration can be filed at https://www.copyright.gov/dmca-directory/.  Note that all registrations must be renewed every three years.

Please contact us if you have any questions or need additional assistance.

Brian Igel was quoted in Nylon Magazine

Brian Igel was quoted in an article about so-called "fast fashion" brands, copyright infringment and the power of social media shaming.  You can read the article here: How Indie Artist Tuesday Bassen Is Fighting Back Against Zara

Brian Igel was quoted in the Business of Fashion

Brian Igel was quoted in an article about digital influencers, brands, and adherence (or lack thereof) to the FTC disclosure guidelines on social media.   You can read the article here: https://www.businessoffashion.com/articles/intelligence/the-art-of-disclosure-fashions-influence-economy-and-the-ftc

New European Trademark Regulations start March 23, 2016

 

The two primary changes are:

1. The need to specify the goods and services related to a trademark, since all Community Trademarks (CTMs) which claim entire class headings run the risk of seeing their protection reduced (because protection will now be limited to the "literal meaning" alone).  We highly recommend to rights holders that they reach out to us immediately to evaluate their CTM registrations in time to possibly file a request to limit the goods or services claimed.

2. Fee changes for CTMs.  Generally speaking, the cost of filing new CTMs will increase, whereas renewal fees will decrease.  If you intend to file new CTMs soon, you should consider doing so before the new, higher rates take effect on March 23, 2016.

Applying for Trademarks in Europe is about to Get Easier

Applying for trademarks in the European Union is about to get a little bit easier and less expensive.  On January 15, 2016, Directive 2015/2436 will begin to take effect.  The new rules aim to make registration of trademarks cheaper, quicker and more reliable, through streamlining national and EU trademark procedures. They will also make it possible to impound the transit of counterfeit goods through EU territory.

Changes we can expect to see under the new Directive include:

-          Implementation of the ‘one class, one fee’ principle, meaning that an EU trademark can be registered in just one class at a reduced fee.

-          Renaming the Office for Harmonisation in the Internal Market (OHIM) to the EU Intellectual Property Office, and renaming the Community Trademark to EU trademark (EUTM).

-          Removal of the requirement for graphic representation in the registration process.

-          Reduction in renewal fees.

Reform of the Community TradeMarks Regulation (207/2009/EC) has received the approval of the Parliament and Council. This Regulation governs EU-wide trademarks, and will come into force 90 days after its publication in the Official Journal. Changes are likely to be seen from early 2016.

The new Directive and Regulation will govern trademarks across the EU, and businesses should therefore review their existing trademark portfolio and consider the best way to protect and enhance the portfolio through new applications or renewals of registration.

Daniel selected as panelist on the NYSBA's upcoming panel entitled, " Identity Crisis! Legal and PR Aspects of Managing Brand Image in Celebrity Endorsements and Licensing Agreements"

From the New York State Bar Assosiation's website...

Date: Wednesday, April 29, 2015, 5:30 PM - 8:30 PM ET

Fashion Institute of Technology 
Katie Murphy Amphitheatre 
7th Ave at W. 21st Street 
New York, NY 10001

5:30 p.m. - 6:00 p.m. - Welcoming Reception 
6:00 p.m. - 8:05 p.m. - Panel/Q&A
8:05 p.m. - 8:30 p.m. - Networking

Moderator: 
Kathryne E. Badura, Esq., International Trademark Association (INTA)

Speakers:
Marc Beckman, Founder & CEO of Designers Management Agency
Daniel Bellizio, Bellizio & Igel PLLC
Kristin G. Garris, Esq., Associate, Kilpatrick Townsend & Stockton LLP
Guillermo Jimenez, Esq., Professor-International Trade and Fashion Law at the Fashion Institute of Technology of the State University of New York. 
Robin Sackin, Chairperson of the Jay and Patty Baker School of Business and Technology's Fashion Merchandise Management Program at the Fashion Institute of Technology of the State University of New York.

This program qualifies for 2.5 MCLE credits in Professional Practice

As you wait in the checkout line at your local supermarket, you are so bored that you grab a gossip mag from the display above the mints. (OK, so it's really because you secretly love the sleaze... but we won't tell.) Flipping through the pages, you are consumed by the latest celebrity news: love, heartbreak and... uh oh... scandal. The top news story recounts a young celebutant's night of partying that ended in her arrest. In the wake of this incident, said starlet has been dropped by the trendy clothing line for which she served as brand ambassador. "How can they do that!?" you think to yourself. "Isn't there a contract they have to honor?" "And what about free speech?" 

Recently, such situations have become quite common, resulting in an increased importance placed on contract terms designed to protect a fashion brand's reputation. This need for image control does not stop at celebrity endorsements. A brand's reputation can be at risk if the brand is associated with manufacturers or factories alleged to be in violation of health, safety and labor laws. 

NYSBA's Fashion Law Committee, in partnership with the Fashion Institute of Technology's Jay and Patty Baker School of Business and Technology, invites you to attend its annual CLE event for a lively discussion of these issues. Industry attorneys and PR professionals will discuss the ins-and-outs of image protection from a legal and public relations perspective. Hear as they relay best practices in negotiating celebrity endorsement deals, discuss the importance and effectiveness of morality clauses and advise on avoiding reputational damage in the event of a "rogue" brand representative. Panelists will also discuss these issues as they apply to labor and safety standards.

EASL Members: $25.00 
NYSBA Members: $50.00 
Non-NYSBA Members: $85.00

To register over the phone please call our State Bar Service Center at 1-800-582-2452

Brian Igel Quoted in Racked about the Rise of Fashion Law

Fashion law is an amalgamation of a number of different practice areas that touch upon the fashion industry: intellectual property, contracts, m&a, corporate finance, employment, media and entertainment, marketing and advertising, international trade and government regulation… you name it.

Brian was asked about his niche and why this area of legal practice has gained so much popularity in recent years.  You can read the full article on Racked here.

For the second year in a row, both Brian Igel and Daniel Bellizio selected as "Rising Stars" by Super Lawyers

 

We're pleased to announce that both of the named partners of the firm have again been selected by Super Lawyers as Rising Stars in "Business/Corporate Law" and "Entertainment Law"

No more than 2.5% of the lawyers in any state are named to the Rising Stars list. Lawyers are asked to nominate their peers and an attorney-led research team at Super Lawyers reviews the credentials of the candidates for acceptance.

The Washington Redskins Trademark Rights Remain Alive and Well

As a lifelong New York Giants fan, I wish it were true that that the Washington Redskins had “lost their trademark” as several sports commentators -- who should know better -- have publically stated.  In addition to being mortal enemies to my beloved Giants, another perfectly legitimate reason to loathe the team from Washington is because of their refusal to change their derogatory team name.  Frankly, I think the owner of the team should be ashamed of himself.  That said, the decision issued by the Trademark Trial and Appeal Board (“TTAB”) which cancelled certain of the team’s federal trademark registrations does NOT prevent the team from: (1) using REDSKINS as the team name or (2) enforcing the team’s common law trademark rights against would-be infringers.  This is because a federal registration is not the only method by which a brand name and/or logo can acquire rights and protections by law.

So what’s the difference between a federally registered trademark (which an owner registers with the United States Patent and Trademark Office (“USPTO”)) and a common law trademark (which arises simply by an owner’s use of a mark in commerce)?  There are significant benefits to a federal trademark registration, including:

·         exclusive, national scope and protection to the mark (regardless of the actual geographic use)

·         notice and the legal presumption of ownership

·         The right to sue for infringement in federal courts; and

·         The ability to recover profits, damages and costs for infringement, including the possibility of receiving treble damages in certain circumstances;

·         The ability to recover attorneys fees in infringement actions;

·         aiding in obtaining foreign registrations

·         the ability to record with US Customs to prevent importation of counterfeit goods

“Common law” rights, on the other hand, are developed through use.  These rights are governed by state law rather than statute.  Common law trademark rights are technically limited to the geographic area in which the mark is used. Thus, if a coffee blend is sold under the name BLASTER in California only, the trademark rights to that name exist only in California. If another coffee retailer begins to market a different blend in New York under the same name (assuming they had no knowledge of the California company), then there would be no trademark infringement. However, if the New York company attempted to sell their coffee blend nation-wide, they would discover that the California company's common law rights to the mark would prevent them from entering the California market.  In the internet age, query whether this old-fashion notion of separate markets is still applicable.  The REDSKINS, for instance, have been using that name in commerce since at least 1932.  The mark has generated billions of dollars in sales worldwide.  Their trademark rights are pretty darn strong.

This case is interesting because it proves that brand owners that have built goodwill in their marks over time are still entitled to certain protections by law -- even without a federally registered trademark.  It is crucial that any new business venture conducts a comprehensive search of not only the USPTO but also each state’s trademark databases and online sources, such as Google.  B+I subscribes to a proprietary database that allows us to perform deep searches that the average consumer cannot otherwise perform.  Please don’t hesitate to contact us if you would like a comprehensive search conducted.  We conduct the search, provide you with a written opinion letter, and follow up the letter with a conversation to discuss the results and how best to proceed.  Don’t take shortcuts when it comes to the trademark process.