Friday, January 30, 2015

Trademarks and "The Big Game"

Sunday's football game between the Seattle Seahawks and the New England Patriots will bring many references to "The Big Game", "The Professional Football Championship Game", "The Be All End All of Football Games", and even "The Superb Owl". But why?

From the CommLawBlog:

As we have reported every January for years now, the term “Super Bowl”® – and a surprising number of other “super” terms (think “Super Sunday”®, “Super Bowl Concert Series”®, “Super Bowl of Golf”® – oops, that last one is registered to the National Football League Alumni, Inc.) – have been registered as trademarks by the NFL. That means that, while those terms can be used in certain limited contexts, as a general rule they may not be used in any commercial promotions. No advertising of your own events, no advertising of client-conducted events, sales, promotions, no contests, no nothing. Nada. Zip. Zilch. 

As a result of the NFL's aggressive steps to protect its trademarks, businesses have had to talk about Sunday's big event in other ways.

From the Associated Press:

It is the game that must not be named--at least not without permission. 

For most people, the game Sunday between the New England Patriots and Seattle Seahawks is the Super Bowl. But for many business owners, it's simply the "big game" or "game day." 

Radio hosts are tripping over their tongues and airport signs are carefully worded to keep from referring to it as the Super Bowl, a trademarked name the NFL strictly polices. Mom-and-pop shops and large companies hoping to cash in on the game--but also don't want to run afoul of league lawyers--have found ways to color inside the lines. 

The bottom line to remember? Don't imply that you have any official connection to, endorsement by, or license to use the National Football League's trademark for "Super Bowl."

Tuesday, January 27, 2015

"Springing" Powers of Attorney: Three Questions

Sometimes a client may want to grant a power of attorney to allow another person to manage her affairs but delay the effective date of such power to a time in the future. These are often called “springing” power of attorneys, because the power “springs” to life at a later date. Springing powers can be a helpful estate planning tool, particularly when an individual is currently in good health and in full command of his or her faculties.

Any springing power of attorney must answer at least three questions: 1) When does it become effective? 2) How long is it effective? 3) Is it still effective if the grantor regains capacity?

Effective Date: The first consideration is when the power springs to life – or its effective date. In some cases, the power of attorney is immediately effective by default (although as a result, it is not a true springing power):  

This power of attorney is effective immediately unless I have stated otherwise in the Special Instructions. 

The simplest springing power has language to specifically list when it becomes effective, such as in this example:

This Springing Power of Attorney shall become effective on January 1, 2025 or on the occurrence of my husband's death or on my disability, incapacity or adjudged incompetency. 

In some cases, individuals may want to require some proof of such disability, such as a physician’s letter, before the power is granted:

This Power of Attorney shall become effective when a letter written by my attending physician is attached to it stating that my attending physician has determined that it is in my best interest to have the assistance of an agent in handling my affairs (either for the foreseeable future or for a specified time period). 

Effective Term: Once the power of attorney becomes effective, the second question is when it expires. In most cases, there are two options. The power could be open-ended, with no expiration date; or it could remain in effect only until the incapacity has been terminated.

Recurring Disability: If the power of attorney has an end date, a final question must be answered. What happens if the disability ends but later reoccurs – such as, for example, a second stroke?

Our office recommends allowing the springing power of attorney to be revived – rather than revoked altogether – if the individual is disabled again at a later time:

Upon my regaining capacity, this Durable General Power of Attorney shall not be revoked but shall become effective again upon my subsequent disability, or incompetency as set forth above.

Tuesday, January 20, 2015

Arkansas Law of Damages Released

One of our attorneys, Christian H. Brill, and his father, Prof. Howard W. Brill recently published the 6th edition of Law of Damages, a comprehensive treatise on damages law in Arkansas. The volume is now available for purchase from Thomson Reuters.

Completely rewritten for the first time in more than a decade, the 6th edition of Law of Damages covers both the general principles of damages law in Arkansas and the damages relating to substantive principles of the law.

Part one treats damages generally, discussing damages in their many forms. Part two puts these varieties into perspective, relating them to substantive areas of the law.

The text also:
  • Provides in-depth discussions of different types of damages, including punitive damages, compensatory damages, attorneys fees, interest, and costs
  • Includes instruction on procedural and evidentiary aspects of proving and calculating damages
  • Discusses application of statutes and case law regarding damages to specific fields of law
With over 4000 judicial decisions and numerous statutory and secondary references, the new edition comprehensively covers Arkansas law. It includes expanded sections on compensatory damages, apportionment of damages, attorney fees, contracts, real property, restitution and wrongful death.

Previous editions have been cited over 200 times by Arkansas state and federal courts. As it has for 30 years, the volume will continue to be an essential text for every Arkansas attorney’s book shelf, and will serve as a tool for bench and bar.

Brill, an Arkansas and Ohio attorney, has been practicing with Mallory Law Office, LLC since 2013.

Wednesday, January 14, 2015

Wealthy Giving Less to Charity; Poor Giving More

A recent report by the Chronicle of Philantrophy studied charitable giving in America, and the results were perhaps surprising. The study found that, as the country struggled out of a recession, wealthier Americans are giving away a smaller percentage of their income, while poorer Americans are giving more.

According to Forbes, Americans who earned at least $200,000 gave nearly 5% less to charity in 2012 than in 2006. In contrast, Americans who earned less than $25,000 increased their charitable giving by almost 17%.

The trend was similar in Central Ohio. The Columbus Dispatch reported that donors in the Columbus area gave about 2.6 percent of their income to charity in 2012, a 6.5 percent decline since 2006. This places Columbus 39th among America’s 50 largest metropolitan areas in giving, behind both Cleveland and Cincinnati. Area residents making less than $25,000 gave away 7.19% of their income; those making over $200,000 gave away only 2.43%.

Charitable giving should be carefully considered for both short- and long-term tax and estate planning purposes. Contact our attorneys for assistance.