Brian Igel was quoted in 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
News & Articles
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 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
Kathryne E. Badura, Esq., International Trademark Association (INTA)
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
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.
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.
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.
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 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.
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.
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.
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.
An employer is prohibited from threatening, firing, disciplining, reducing hours, or taking other adverse employment actions against employees who request or use sick time.
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.
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.