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Bellizio & Igel, PLLC is a New York City law firm which advises entrepreneurs and businesses of all sizes in a variety of industries such as technology, media, entertainment and the arts.

News & Articles

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

Brian Igel

 

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

Brian Igel

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.

Does your privacy policy comply with the California Attorney General's recently released guidance?

Brian Igel

 

On May 21, 2014, the California attorney general released updated guidance regarding privacy expectations and complying with the recently amended California Online Privacy Protection Act (“CalOPPA”).  While the law only applies to companies collecting personally identifiable information ("PII") of California residents, the state's economic importance and the borderless world of online commerce extend the impact of this law nationwide.

It is safe to assume that the attorney general’s recommendations delineate the minimum requirements necessary for a valid privacy policy under CalOPPA. If you haven't already, now would be a good time to review your privacy policy and practices to ensure that they comply with best practices and the law.  A downloadable PDF of the guidance is available here.  

Summary: Earned Sick Time Act

Brian Igel

Summary

Effective as of April 1, 2014, private sector employers with five or more employees must provide paid sick leave to eligible full-time and part-time employees who work in New York City for more than 80 hours in a calendar year.  Employers with less than five such employees must provide unpaid leave.

 

Determining Employer Size

Where the number of employees fluctuates, size may be determined by reference to the average number of employees who worked for compensation per week during the preceding calendar year. Special aggregation rules apply to chain businesses.

 

What is a  calendar year?

The calendar year is a bit of a misnomer.  It can either be a set fiscal year of the employer’s choice (e.g., January 1 to December 31), or it can vary from employee to employee, based on an employee’s particular start date.  Regardless of which is chosen, meticulous record keeping regarding accrual and carry over is necessary. 

 

Who is exempt?

1.       Public sector employers are generally exempt.

2.       Private sector employers that provide the requisite paid time off (e.g., vacation and/or personal days) – not just to full time employees but part-time employees also.

3.       Private sector employees that are participants in work experience programs, participants in federal work-study programs, employees compensated via qualified scholarships, certain hourly professionals licensed by the NYS DOE and certain employees subject to a collective bargaining agreement (CBA).

4.       Private sector employees who are telecommuters not telecommuting from NYC.

5.       Independent contractors and anyone who is 1099’d.

6.       Employees covered by a Collective Bargaining Agreement (CBA) on April 1, 2014 (until such agreement terminates). In addition, the new leave provisions will not apply thereafter if the new CBA expressly waives the provisions and provides a comparable benefit.

7.       Construction or grocery industry employees covered by a CBA (regardless of whether the agreement provides a comparable benefit).

 

Accrual

Accrual of sick time begins the later of (i) commencement of employment or (ii) April 1, 2014.  Employers need not allow employees to utilize accrued time until 120 days after employee has been hired (or August 1, 2014, whichever is later).  The accrual rate is 1 hour of sick leave per 30 hours worked.  The annual employer year accrual cap is 40 hours of sick leave.

 

Use

1.       Accrued sick time may be used for one’s own or a family member’s mental or physical  condition or preventive medical care.  A “family member” is an employee’s child, grandchild, spouse, domestic partner, parent, grandparent, sibling, or the child or parent of an employee’s spouse or domestic partner. Employees may also use accrued sick time for reasons relating either to the closure of their place of business or child’s school or day care due to a public health emergency.

2.       Employers may set a minimum increment of sick time use, not to exceed four hours per day.

3.       Employers may require employees to provide up to 7 days advance notice of the need for leave if employee’s need is foreseeable, or as much notice as practicable when employee’s need is not foreseeable. Employers may also require reasonable documentation from a licensed health care provider establishing the need for leave lasting more than three consecutive work days. Note that employers may not require disclosure of the nature of the need for leave as part of such documentation.

 

Carryover

1.       Any and all accrued sick time must be allowed to carry over to the following employer year (unless the employer pays the employee for that time).  However, the employer may cap sick time in any employer year at 40 hours...

2.       Employers are not required to pay employees for accrued but unused sick time upon retirement or separation from employment. Employers are, however, required to reinstate previously accrued but unused sick time if an employee is rehired within six months after separation.

 

Notice/Recordkeeping Requirements

1.       Employers must provide written notice of (i) employees' right to sick time, (ii) rules regrarding accrual and use, (iii) the employer’s "calendar year", and (iv) their right to file a complaint and to be free of retaliation. Notice must be given to new hires employed on or after April 1, 2014 on their first day of employment and to current employees by May 1, 2014. Notice must be given in English and in the primary language spoken by the employee, provided the DCA has made a translation available in downloadable format on its website. The DCA has posted a notice template in English, Spanish, Chinese, French-Creole, Italian, Korean, and Russian on its website.  Posting the notice, by itself, does not satisfy the notice requirement.

2.       Employers must retain records of hours worked by employees for 3 years, as well as the amount of sick time accrued and used. Confidentiality of records must be maintained.

 

Anti-retaliation

An employer is prohibited from threatening, firing, disciplining, reducing hours, or taking other adverse employment actions against employees who request or use sick time.

 

Enforcement/Penalties

1.       Any employee who claims to have been denied sick leave must seek relief only through the DCA. Employees have two years from the date they knew or should have known of a violation to file a complaint with the DCA. Available remedies include lost wage and benefits, and equitable relief such as reinstatement, as appropriate. In addition, employers who violate the Act will be liable for civil penalties ranging from $500 for the first violation up to $1,000 for subsequent violations. A penalty of up to $50 may be imposed for each employee who was not given the employee rights notice.

2.       Employers with fewer than 20 employees (and certain employers in the manufacturing sector) will have a six-month grace period (until October 1, 2014) to achieve full compliance. During that period, those employers will not be subject to penalties, and a first violation will not be counted against them. However, a second violation that occurs before October 1 will count toward penalties if a subsequent violation for the same offense occurs after October 1.

 

FTC Flexes Muscles: Misleading Endorsements Settlement

Brian Igel

Last week, the Federal Trade Commission (FTC) entered into a settlement agreement with ADT regarding allegations that ADT deceived consumers by misrepresenting paid endorsements from safety and technology experts as independent reviews.  

Specifically, the FTC alleged that ADT and its agents booked certain experts on press junkets, such experts demonstrated, reviewed and endorsed ADT products for pay, and that ADT misrepresented the reviews as independently conducted by impartial experts.

As it turns out, these experts appeared in 40+ media outlets and posted blogs and other material online about ADT's product.  Under the settlement, ADT is (i) prohibited from misrepresenting in any way, express or implied, that any product discussion or demonstration is an independent review provided by an impartial expert and (ii) required to promptly remove reviews that were not independently provided by an impartial expert or which otherwise fail to disclose material connections between ADT and such experts.  Finally, like any other brand, ADT must clearly and prominently disclose any existing material connection between the company and paid experts.

Brand owners: Disclose all of your material connections clearly and honestly.  Not only will your customers appreciate your honesty, but you will also steer clear of FTC scrutiny.

Daniel is quoted in the New York Times today

Brian Igel

Check out the front page article about the Hells Angels.  The Hells Angels have been -- shall we say -- active in the federal court system, alleging trademark infringement of a panoply of Hells Angels products, which range from women's yoga pants to yoyos.

B+I is outside general counsel to Company 81, a casual young men's lifestyle brand.  Hells Angels sued Company 81, alleging that use of the number "81" was an infringement.  Daniel was quoted in the article about his dealing with Hells Angels.  You can read the whole article, including about how the matter was ultimately disposed of, here: http://www.nytimes.com/2013/11/29/us/despite-outlaw-image-hells-angels-sue-often.html.

 

IFB and Crossroads presents "From Closet to Career"

Brian Igel

Last night, Independent Independent Fashion Bloggers and  Crossroads   hosted an event called, “From Closet to Career.”  The idea was to help emerging bloggers better understand blogging as a business.  The event opened with a panel about monetizing blogs, featuring me, Jessie Artigue (from the blog, Style & Pepper), Hilary Sloan (from Shopstyle) and moderated by IFB founder, Jennine Jacob.  It was an intimate setting, which was very conducive to Q&A, so, in addition to the non-legal stuff, I received a number of questions from the audience about negotiating contracts, trademark searches and forming entities.  It was great to get to know Hilary and Jessie, and to share some insights and experiences with them.  It was equally great to be able to speak to so many members of the IFB community individually, which I was able to do during the cocktail hour that followed an enlightening (and entertaining) conversation with  Garance Doré   about her blogging career.  In addition Garance’s obvious talent, you can just tell she is a cool chick.  Some people just have a certain aura about them.  I really enjoined listening to her speak about her humble beginnings and all the steps she took along the way to get to where she is today.  It was a great experience, and I can see why IFB is such a valuable resource to so many bloggers.  It’s just a great community to be a part of and I’m honored that they invited me to speak.

 

Blogger Garance Dore with Erin Wallace of Crossroads Trading (photo courtesy of Kat Harris)

Blogger Garance Dore with Erin Wallace of Crossroads Trading (photo courtesy of Kat Harris)

The panelists (photo courtesy of Kat Harris)

The panelists (photo courtesy of Kat Harris)

Both Brian Igel and Daniel Bellizio selected as "Rising Stars" for 2013 by Super Lawyers

Brian Igel

We're pleased to announce that both of the named partners of Bellizio + Igel PLLC have been selected by Super Lawyers as Rising Stars for 2013.

No more than 2.5% of the lawyers in any state are named to the Rising Stars list. Lawyers are asked to nominate the best attorneys whom they have personally observed, who are 40 or under, or who have been practicing for 10 years or less. In addition, an attorney-led research team reviews the credentials of the candidates.

We're authors!

Brian Igel

We were honored when Daniel was approached by the The American Bar Association (ABA) to pen a chapter on manufacturing for the ABA's Legal Guide to Fashion Design, the first fashion law book specifically authored by lawyers for a non-lawyer audience.  The book came out right before fashion week and, thanks to the CFDA, which purchased a copy for each of its 500 members, is now on back order.  The second printing is in process and you can place your order here.

 

Here's what others in the industry are saying about the book: 

 

"What a great book for everyone in our industry, especially young designers who are just starting out. These pages contain an enormous amount of valuable information, which is presented in very concise and easy to understand language. For those of us who are in the fashion design business, this book deserves a permanent spot on your desktop."
-- Nanette Lepore, designer 

"This book provides a detailed and practical understanding of the legal issues that apply to running a successful fashion company. The American Bar Association's Legal Guide to Fashion Design is a must-read for designers and executives of both big and small brands. It offers real expertise needed to compete in the global market." 
-Steven Kolb, CEO, Council of Fashion Designers of America

"The American Bar Association's Legal Guide to Fashion Design is marvelous. It's an essential resource for anyone looking to be or already in the fashion industry. " 
-Simon Collins, Dean, School of Fashion, Parsons The New School for Design

"A must read resource that joins the creative process with the ever complicated business/financial one. The book gives designers a rare opportunity to stay ahead of the curve while building their business. It should make its way into many industry hands." 
-Daniella Vitale, Chief Operating Officer and Senior Executive Vice President, Barneys New York

"We didn't create a field of fashion law for lawyers, we created it for designers and this ABA volume resonates with that spirit of helping designers to reap what they sew. The Fashion Financing chapter alone is an invaluable interdisciplinary resource." -Professor Susan Scafidi, Founder and Academic Director, Fashion Law Institute

New B+I Law Firm Website

Brian Igel

Photo by Steve

A couple of weeks ago we attended the rewardStyle Bloggers Conference in Dallas.  In additon to meeting Amber and Baxter and the entire rewardStyle team, we met some terrific bloggers and brand representatives.  Mary Vallarta from Fab Counsel asked us to cover the conference for her site, Fab Counsel, which we did.  You can read about the conference here.  Enjoy.

More cool stuff here.