Foreign-Domiciled Applicants; Why the Change at the Trademark Office?

By Alex Rainville

In a long anticipated decision, starting on August 3, 2019, foreign domiciled trademark applicants, registrants, and parties must be represented by a US licensed attorney in front of the United States Patent and Trademark Office (“USPTO”). This means that any foreign-domiciled person or business wishing to seek trademark registration with the USPTO must appoint a US licensed attorney to file and prosecute the trademark registration application. This may appear like an unnecessary burden, but it is part of fixing overarching administrative problems.

The USPTO is actively trying to modernize and streamline the trademark registration application process, to ensure timely review of applications and increase efficiency to final outcomes. One of the challenges to this process has been a large number of foreign-domiciled applicants submitting inaccurate, and often times fraudulent, materials. By way of example, a common problem with these applications is the specimens are either failing to meet the required standards or are outright fraudulent. This increases the time required for the USPTO to examine and process applications, resulting in an inefficient registration process for all applicants. By using a US licensed attorney, the USPTO expects that the applications will be more accurate and eliminate much of fraud, ultimately increasing efficiency.

For businesses wishing to protect its intellectual property, even those based in the US, it is a good idea to hire a trademark attorney. For example, the attorney will be able to guide you on what can be protected under the Lanham Act and the common law, and the best avenue to obtain registration or, more generally, protection for your intellectual property. They will also ensure you and your business are not defrauded by the multitude of USPTO imposters, and will know how to file complaints regarding these imposters with the Federal Trade Commission, for the Department of Justice to prosecute. Although this change of policy at the USPTO may seem unfair to foreign-domiciled applicants, the change may ultimately benefit all the businesses relying on the USPTO to protect its brand and intellectual property.

© 2019 Vandenack Weaver LLC
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Will the United States Enact a Federal Law on Privacy?

By Alex Rainville

With corporate giants like Amazon, IBM, Citigroup, and 48 others pushing for federal legislation on privacy, will the United States Congress act? In a letter to Congress, dated September 10, 2019, these corporate giants are pushing for a “comprehensive consumer data privacy law” that will stabilize the myriad of state rules.

In the absence of federal legislation, individual states have taken the responsibility for legislating consumer privacy and data security standards. In fact, Alabama was the last to enact such a law, and that law has been in effect since June 1, 2018. However, most individuals are unaware of their rights and, importantly, most businesses are unsure of how, or are simply unable, to comply with many of the state laws. Even the much-publicized California Consumer Privacy Act (“CCPA”) remains a challenge for businesses to comply with, and many businesses remain unaware that they are subject to this rules even though they reside outside of California.

This push for federal privacy legislation comes on the heels of the European Union enacting and implementing the General Data Protection Regulation, which ushered in an unprecedented level of privacy measures for European Union Data Subjects and regulatory burdens for data controllers and processors. Will the US Congress follow suit and implement a federal data privacy law? Only time will tell, but businesses should be prepared to comply with each state rule, as enforcement and fines for failure to comply have started to hit US companies of all size.

© 2019 Vandeanck Weaver LLC
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Why Consider a Wrap Plan related to your Employee Benefits?

A Wrap Plan is a single welfare benefit plan that combines employee health and welfare benefit plans into one plan. A Wrap Plan can save employers time, filing costs, and ease compliance with reporting and disclosure rules.

The Employee Retirement Income Security Act (ERISA) provides an employer with the option to offer different types of welfare benefit to its employees:

  • Medical, surgical, or hospital care or benefits, or
  • Benefits in the event of sickness, accident, disability, death or unemployment, or
  • Vacation benefits, or
  • Apprenticeship or other training programs, or
  • Day care centers, or
  • Scholarship funds, or
  • Prepaid legal services

ERISA requires welfare benefit plan to be codified in a written plan document, to include the following content:

  • Benefits and eligibility, and
  • Funding of benefits, and
  • Procedures for allocating and delegating plan responsibilities, and
  • Plan amendment and termination procedures, and
  • Designation of named fiduciary, and
  • Required provisions for group health plans, such as HIPPA compliance.

Employers must also provide employees with a Summary Plan Description (SPD) alerting them about their eligibility to participate in the plan.  Many employee welfare benefit plans are provided through insurance, and the companies providing coverage will have documents relating to the plans.  However, those documents are typically drafted to comply only with applicable insurance laws without being ERISA-compliant.

A Wrap Plan bundles the ERISA health and welfare benefits and includes all required disclosures. Rather than amending multiple documents after a new law is passed that affects a plan, an employer can make a single change to the Wrap Plan. Additionally, if an employer has plans that have 100 or more participants or are otherwise subject to the filing requirements to file Form 5500, a Wrap Plan also makes this administrative filing easier too. Rather than filing a separate Form 5500 for each health and welfare pan, a Wrap Plan allows the employer to file a single Form 5500 for all benefits covered by the Wrap Plan.

A Wrap Plan is an effective ERISA compliance strategy that allows employers to reduce the amount of time and cost involved in administering various health and welfare benefit plans.

© 2019 Vandenack Weaver LLC

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Circuit Split on Data Breach Litigation

On March 25th, 2019, the Supreme Court denied review of a case involving individuals whose personal information held in a database was breached by hackers. Specifically, the issue was whether the parties requesting review had Article III “standing” to sue due to the database breach.

Standing is the authority of a court to hear a case. For the court to exercise such authority, the court will only hear cases based on events that cause actual injuries or create real threats of imminent harm to individuals who brought the case. The D.C. Circuit Court in its ruling of June 21st, 2019 deepened the split among contradicting circuit rulings. The D.C. Circuit Court ruled the petitioning party had standing to bring the case due to the breach of 21.5 million social security numbers, birth dates, and residency details of former, current, and prospective employees. The court held that, the plaintiff’s fear of facing a substantial risk of future identity theft met the burden to establish standing.

While the Sixth, Seventh, and Ninth circuits have similarly concluded that a heightened risk of identity theft is sufficient for individuals to possess standing to sue; the Second, Third, Fourth, and Eighth Circuits have ruled in the opposite direction. Distinct facts from this  latest data breach case include the nature of the defendant being a federal government agency and the alleged identity of the hacker being a foreign government entity where the breach was executed for purposes other than identity theft. Nonetheless, the D.C. Circuit Court found the federal government agency liable as well as Office of Personnel Management’s (OPMs) third-party vendor, despite the contract between the two parties. The Supreme Court may need to review and rule on this crucial issue in the near future given the current split of authority.

© 2019 Vandenack Weaver LLC

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Administrative Remedies in Discrimination Claims

By Matthew Dunning

Earlier this week the United States Supreme Court issued its unanimous opinion in Fort Bend County, Texas v. Davis, holding that a plaintiff’s failure to exhaust administrative remedies does not necessarily prevent the person from pursuing employment discrimination claims in court. In a charge filed with the federal Equal Employment Opportunity Commission (“EEOC”), the plaintiff in the case alleged that she was subjected to sexual harassment and retaliation for complaining about that harassment. She was subsequently fired for missing work to attend church services, and claimed that the termination was based on religious discrimination. However, she did not formally amend her EEOC charge to allege religious discrimination, opening the possibility that she had failed to exhaust her administrative remedies.

The plaintiff then filed a lawsuit in federal court, and claimed that she was subject to wrongful discharge based on unlawful harassment, retaliation and religious discrimination. The defendant initially defended the case without raising the failure to exhaust defense, and it was not until years later that the defendant filed a motion to dismiss.  The Court affirmed the finding of the lower appeals court that the motion to dismiss was untimely and should have been raised earlier in the case. This case has now been in litigation for 7 years, and is being sent back to the trial court for further proceedings.

In Nebraska, there is a statute that allows an aggrieved employee to go directly to court without filing a charge of discrimination with the Nebraska Equal Opportunity Commission (“NEOC”). Plaintiffs lawyers do not typically utilize this statute because remedies available under state law do not include punitive damages, which are available under federal law.  In addition, the lawyers appreciate the NEOC/EEOC process because it can lead to the discovery of information regarding an employer’s defenses, which the attorney can then utilize to develop the case in court.

When facing claims of discrimination, whether the employee is currently employed, or has already been terminated, employers should carefully consider the status and details of the allegations at each stage of the process, and identify the procedural requirements that may apply. For instance, if the person complaining is still an employee, the employer must consistently apply the applicable policies, typically included in an employee handbook. Failure to properly investigate and, if necessary, remediate a complaint of discrimination may, in and of itself, be considered evidence of unlawful discrimination.

Once an employee files a formal charge with the NEOC or EOC, or files litigation, the employer should carefully review all the applicable facts, particularly the timing of the allegations, and work with legal counsel to determine if there are any procedural or other irregularities to raise as defenses.

Observations on LB400

LB400 was introduced in the Nebraska Unicameral, in January of this year to raise the minimum wage of tip earners.  The current minimum wage in Nebraska for tip earners is $2.13 an hour with restaurants ensuring tipped staff obtain at least $9.00 per hour combined standard wage and tips.  The bill was to raise the minimum wage to $4.50 an hour, without indexing the wage to the regular minimum wage.

The bill includes raises the following questions to assure compliance with wage laws:

  1. Are the restaurants actually ensuring that the employees receive the $9.00 an hour combined standard wage plus tips or are they “gaming” the system to ensure more profits for the company?
  2. Can the employees genuinely rely on the tips of the patrons?
  3. Can “standard tips” accurately be reflected in the $9.00 per hour combined minimum standard wage plus tip?

As business owners, employers should consider reviewing current pay policies, including the often-used practice of tip pooling and/or tip splitting, in order to remain in compliance. Another compliance approach to consider would be the modification and reclassification of employees to non-tipped personnel.

 

https://trackbill.com/bill/nebraska-legislative-bill-400-change-the-minimum-wage-for-persons-compensated-by-way-of-gratuities/1636386/

 

The legislation is not finalized so there will be updates on the status of this bill.

FCRA Disclosure Requirements

Two federal court decisions out of California should serve as reminders to employers that the requirements of the Fair Credit Reporting Act will be strictly interpreted and applied. In a class action against Walmart, and also in a Ninth Circuit Court of Appeals decision, FCRA disclosure requirements were at issue; the Ninth Circuit’s holding reaffirms the FCRA’s requirement that disclosures be in a standalone document, without including additional state-mandated disclosures. The Walmart case allowed claims that its disclosures were similarly faulty to move forward as a class action. To avoid potential liability, employers would do well to closely adhere to the disclosure requirements, as required by the explicit language of the Act; guidance on the issue can be found at the FTC’s website: https://lnkd.in/gtVY2Jq