Thursday, March 27, 2014

The Benefits of Federal Trademark Registration

Registering your business’s trademark with the United States Patent & Trademark Office (USPTO) is not a requirement for protecting your mark. However, any “common law” rights based on the use of your mark are far more limited than the federal protections. For example, although you can file for trademark protection in Ohio, the state’s trademark statutes do not prevent someone from using the same mark in Indiana. A business which later discovers an existing trademark (like this North Carolina taco restaurant chain) could be forced to rebrand itself in order to avoid claims of infringement. 

Although you may still be able to establish rights based on your legitimate use of the mark, there are significant advantages to federal trademark registration.  The USPTO lists at least five important benefits of registration:
  1. Constructive notice nationwide of the trademark owner's claim. Any potential users of the same mark are presumed to know that your claim is federally protected, even if the infringer does not have actual notice. For example, even if a soft drink maker had never heard of Coca-Cola and acted in good faith, his attempt to trademark the new drink name Koca-Cola would likely be denied because he is assumed to know that he is infringing.

  2. Evidence of ownership of the trademark. Federal registration proves that you have the exclusive right to own and use the mark nationwide, barring others from trademarking the same mark or claiming ownership.

  3. Jurisdiction of federal courts may be invoked. If your mark is federally protected, you can seek to have a trademark infringement case heard in federal, rather than in state, court.

  4. Registration can be used as a basis for obtaining registration in foreign countries.  Marks can also be protected in foreign countries; however, in order to register your mark in a foreign country, you must first have a U.S. registration.

  5. Registration may be filed with the U.S. Customs Service to prevent importation of infringing foreign goods. Once your mark is federally registered, it can be filed with U.S. Customs and Border Protection to stop imitation foreign goods from infringing on your protected mark. This can prevent infringing goods from being imported, as in recent cases involving counterfeit Hermes handbags or Levi’s jeans.
Other important advantages of federal trademark registration include the right to use the ® trademark symbol and the potential of receiving higher damages in a lawsuit.

As a result, in order to fully protect your business's trademark, federal protection is a must.

Monday, March 24, 2014

iPhones and Overtime

According to a recent Pew Research study, 55% of American adults have a smartphone and 63% of cell phone users use their phone to go online. The growth of smartphone usage has made it easier – and more acceptable – for employees to perform job responsibilities before or after the regular working day.

For employers, however, these technological advances can be dangerous. The Fair Labor Standards Act (FLSA) requires non-exempt employees to receive overtime pay for working more than 40 hours in a week. If non-exempt employees use their phones to work after-hours, the employer could owe them overtime pay.

A pending case in Illinois federal court, Allen v. City of Chicago, has brought this issue to light. In the lawsuit, a Chicago police officer alleged that he was required to regularly check his employer-issued Blackberry device and respond to e-mails, voice mails, and text messages while off duty but not paid overtime. While it is important to note that a final decision in the case has not been reached, the court has allowed the suit to proceed, finding that Allen made plausible allegations that the City violated the FLSA.

Whether or not Allen is ultimately successful, the case can already teach employers a few lessons:
  1. As much as possible, only provide smartphones to exempt employees who are not subject to overtime pay requirements. 
  2. If non-exempt employees need smartphones, establish clear written policies to detail who should be issued a phone and what type of after-hours use is permissible. 
  3. Require the non-exempt employee to carefully track any after-hours work, and review the employee’s records for accuracy. 
  4. Provide training to managers, supervisors, and employees, to ensure knowledge and compliance. 
For a more detailed look at these issues, visit For the Defense, the Legal Intelligencer, or Parker McCay.

Thursday, March 20, 2014

Managing the Madness for Employers

As the NCAA Men’s Basketball Tournament tips off during the middle of the workday today with Ohio State’s opening game against Dayton, employers have a dilemma.

ThinkHR's Laura Kerekes put it this way:

So let’s face it: productivity is reduced somewhat during March Madness. But also consider that office morale and camaraderie can also be impacted favorably by this event, too. So what should an employer do? Embrace March Madness, ignore it, or manage it? 
Recent calculations by global outplacement firm Challenger, Gray & Christmas, Inc. estimated that office pools and online streaming of basketball games could cost America’s employers as much as $1.2 billion for every unproductive work hour during the first week of the tournament. In addition, office pools often violate state or federal anti-gambling laws.

Despite these dangers, employers gradually seem to be embracing, or at least tolerating the tournament. HR executives point to the positives of team building and employee engagement. At least one recent study says March Madness may even boost employee morale. In addition, employers likely realize that the ubiquity of smartphones allows avid fans to follow the games regardless of where they are.

So what should employers do to manage the madness? Recommendations include a free-to-enter company-wide office pool; televisions in break rooms; a relaxed dress code to allow employees to wear their team’s colors; or even flexible hours to catch the big game. And as always, well-defined and clearly communicated office procedures are a must.

Tuesday, March 18, 2014

Landlords Must Keep Premises Safe for Guests

The Ohio Supreme Court has ruled that landlords have the same duty to the guests of tenants as they do to tenants to keep their common areas safe. 
The case in question, Mann v. Northgate Investors, L.L.C., grew out of a 2007 incident in which a woman visited her friend's Columbus apartment.  When leaving at night, she fell down a stairwell that lacked adequate lighting and was severely injured.
In the February 12 decision, the court unanimously agreed that a landlord's duty under Ohio law to “[k]eep all common areas of the premises in a safe and sanitary condition” also extends to guests of tenants. Violation of this duty is negligence per se.

For more, read the full opinion or the Columbus Dispatch report on the case.

Friday, March 14, 2014

Facebook After Death: What Happens to Your Digital Assets?

From bank accounts to social media, more and more of our personal information is stored and accessed online. But after someone dies, both these digital accounts and the “digital assets” (from e-mails to stored files) contained in the accounts can become difficult for the deceased’s representative to access.

Typically, access to a deceased’s online accounts or assets is governed by each site’s policies. For example, Twitter requires a death certificate and a signed statement from the deceased’s representative before closing an account. Shutterfly will provide access to an account with proof of a death certificate and power of attorney document. Yahoo allows a deceased’s account to be closed by the personal representative but not accessed. Requests to close Instagram accounts can be made entirely online by someone other than the representative. Gmail warns that its 2-step process may take several months and require, among other things, an e-mail from the deceased and a court order.

In an effort to streamline family member’s access to online information, some states have proposed or enacted legislation to allow family members or representatives to access digital assets or accounts. For example, Idaho’s law specifically gives the power to an estate’s personal representative to “take control of, conduct, continue, or terminate any accounts of the decedent” on social networking, microblogging, or e-mail websites. Ohio has not yet enacted such a law.

It is unclear how this patchwork of new law will affect existing probate, criminal, or other statutes. As a result, the Uniform Law Commission is currently drafting model legislation governing Fiduciary Access to Digital Assets to give guidance to the states.

Until this new area of law is settled, both clients and attorneys should include digital asset consideration in the estate planning process. We are now recommending that our clients incorporate language into their estate plans to specifically grant personal representatives the power to access digital assets after death.

Tuesday, March 11, 2014

DeWine: Counties Can't Charge for Online Access to Public Records

Earlier this month, Attorney General Mike DeWine issued an advisory opinion that counties may not charge fees to access online copies of public records.

In the opinion, DeWine’s office noted that Ohio’s public records law requires that public records be made available for inspection and that, when requested, copies of the records must be made available at cost.

The Attorney General’s office determined that providing access to online documents is equivalent to allowing the documents to be inspected. Therefore, since the records were only being made available for inspection and were not copies, the county was not permitted to charge a fee.

The opinion was prompted by the Monroe County Auditor’s Office, which had contracted with a private company to provide online access to public records. The county charged users a monthly $15 subscription fee to access the records.

For more, read the full opinion or a report from the Columbus Dispatch.