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Class Action For 1.5 Million Wal-Mart Employees Affirmed By Ninth Circuit

Insight June 08, 2010

In the recently decided case of Dukes v. Wal-Mart Stores, the Ninth Circuit upheld a 2004 district court's decision to certify a class that could potentially consist of 1.5 million women employed by Wal-Mart since 1997. Through this gender discrimination class action, the employees seek back pay, declaratory relief, and injunctive relief.

The plaintiffs allege that Wal-Mart engaged in discriminatory pay and promotion practices in violation of Title VII by paying female employees less than their male counterparts and giving fewer promotions to women than to men.

In 2005, after the district court held that class certification was appropriate under Federal Rule of Civil Procedure 23, Wal-Mart appealed that decision claiming that the class did not satisfy Rule 23(a)'s class requirements and that the potential size and cost of the claim violated Rule 23(b)(2). While the Ninth Circuit did not comment on the merits of the case, it held that there was no violation of Rule 23 that would prevent the class action. Wal-Mart plans to appeal the case to the Supreme Court.

The Ninth Circuit also held that when a district court is determining class status under Rule 23, it must apply a "rigorous analysis." It will be interesting to see whether this standard benefits parties opposing or advocating class certification in the future.

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FINRA Regulatory Notice Regarding Regulation D Offerings

Insight June 07, 2010

The Financial Industry Regulatory Authority (FINRA) issued Regulatory Notice 10-22 on April 20, 2010. The notice, which came in light of recent abuses in Regulation D offerings, was intended to be a reminder to broker-dealers of their obligation to conduct a reasonable investigation of the issuer and the securities they recommend in offerings made under the Security and Exchange Commission's Regulation D under the Securities Act of 1933 (also known as private placements).

This obligation arises from the broker-dealer's "special relationship" to the customer and the representation, in recommending the security, that the broker-dealer has conducted a reasonable investigation and is basing the recommendation on conclusions drawn from the investigation.

If such a reasonable investigation is lacking, the broker-dealer must make that fact and the risks that arise from the lack of information known when making a recommendation.

Additionally, broker-dealers recommending securities offered under Regulation D must meet its suitability requirement under NASD Rule 2310, and must comply with the advertising and supervisory rules of FINRA and the SEC. That is, a broker-dealer must conduct a suitability analysis when recommending securities to both accredited and non-accredited investors that will take into account the investor's knowledge and experience.

While the notice admits that no list of reasonable investigation practices would suffice since each investigation must be tailored to the specific facts of the Regulation D offering in question, it does provide a list of sample investigative practices. A few of those include:

  • Examining the issuer's governing documents, noting particularly the amount of its authorized stock and any restriction on its activities.
  • Looking for any trends indicated by the financial statements.
  • Inquiring about internal audit controls of the issuer.
  • Contacting customers and suppliers regarding their dealing with the issuer.

The full notice is available at FINRA.org.

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Ninth Circuit Broadens Definition of “Copyright Registration” for Litigation Purposes

Insight June 02, 2010

In order to initiate an infringement action in federal court, the Copyright Act requires the litigating party to hold a copyright registration. While the circuits are split on what constitutes a copyright registration, the Ninth Circuit recently joined the Fifth and Seventh Circuits in Cosmetic Ideas v. IAC in holding that anapplication for copyright registration suffices for a registration for litigation purposes.

In this case, Cosmetic Ideas developed, manufactured, and sold a unique piece of costume jewelry starting in 1999. Sometime thereafter, another company, HSN, started manufacturing and distributing a "virtually identical" piece of jewelry. Cosmetic applied for copyright registration of its jewelry on March 6, 2008 and received confirmation from the Copyright Office of receipt of the application on March 12. Cosmetic filed its infringement action on March 27, before the Copyright Office had issued a registration certificate for the jewelry (which it subsequently did). Despite that fact, the Ninth Circuit held that the application sufficed for the purposes of initiating an action in court.

This decision by the Ninth Circuit is beneficial to plaintiffs who can now proceed with infringement actions without worrying about their cases being dismissed or impeded for lack of subject-matter jurisdiction if they have not yet been granted a copyright registration from the Copyright Office.

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New Employee Rights Poster Issued Under National Labor Relations Act

Insight May 27, 2010

The Department of Labor recently published a poster listing employees'; rights under the National Relations Labor Act (NRLA). The notice, which Federal contractors and subcontractors are required to display in a conspicuous location, informs employees that under the NRLA they are guaranteed:

  • the right to organize and bargain collectively with their employers;
  • the right to engage in other protected concerted activity; and
  • protection from certain types of employer and union misconduct.

The notice is required to be posted all places where notices to employees are normally displayed, whether physical or electronic. It is available in both a one-page 11 x 17 in. format and a two-page 8.5 x 11 in. format. There is a fact sheet provided which lists, among other things, exceptions to the posting requirements and information on posting the notices and acquiring translated posters. More information is available at the Office of Labor-Management Standards website.

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Protecting Children Online–Where we are and where we’re heading under Children’s Online Privacy Act

Insight May 23, 2010

Originally posted on: The Internet Law Advisor Blog

The Children’s Online Privacy Protection Act of 1998 (COPPA) with its implementing regulations, the Children’s Online Privacy Protection Rule (COPPA Rule) (in effect since April 21, 2000), have served as the primary law in the U.S. for protecting personal information about children online. It’s a gross understatement to state that the Internet is a different world than what it was when COPPA and the COPPA Rule were implemented. Suffice it to say that the world of social networks combined with mobile computing has, for better or for worse, become the fabric of our children’s world – and in 1998 social networks were not even in Congress’s imagination. The Federal Trade Commission (FTC), charged with enforcement of COPPA has scheduled a COPPA Rule Review Roundtable on June 2, 2010 and is collecting comments through June with the objective of seeing whether changes to the COPPA Rule should be considered. On April 29th, Senate Commerce Chairman John (Jay) Rockefeller, D-W.Va., said that Congress may also need to consider making changes to COPPA itself. So, it’s a good time to review what COPPA requires and what might be changed.

 

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Is It a Barbie World?

Insight April 20, 2010

We all can agree that Barbie is a famous brand, regardless of what we may think of her or the thin values she espouses. Barbie dolls have been around since May 9, 1958. The first Barbie trademark registration (Reg. No. 0,689,055) for a “doll” was issued on December 1, 1959.

This is interesting because “doll” in the singular form is no longer allowed to be used in the listing of goods and services in trademark applications. Rather, applicants must state “dolls” in the plural because using a mark in only one transaction is not enough for trademark rights to attach. In other words, you must sell multiple items (even if the items are identical dolls) for trademark rights to attach.

OK, back to Barbie.

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The Skinny (Cow) on Weight Watchers v. Nestle

Insight April 13, 2010

This posting is about the recently filed trademark case Weight Watchers International Inc. v. Nestle U.S.A. Inc., 09-07964, U.S. District Court, Southern District of New York (Manhattan).

MY DISCLAIMER — I have not read the complaint.

Instead, I saw Joel Rosenblatt’s article in the news section on the e INTA LinkedIn Group.

Joel’s article states that Weight Watchers sued Nestle because it’s Dryer’s ice cream sub-brand, SKINNY COW, improperly displays the Weight Watchers POINTS mark on the SKINNY COW packaging. So, next I looked at a package of SKINNY COW ice cream sandwhiches.

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Open Brands?!?

Insight April 13, 2010

A few weeks ago, I attended the Social Media for Sustainability conference hosted by Justmeans. I met Joey and Stacie Shepp there and Joey told me about their project, Open Brands. Open Brands uses Twitter to follow and measure the real life conversations that consumers are having about brands. Open Brands is able to do this through the use of “brand tags” on Twitter. Brand tags are hashtags about brands. Hashtags consistof use of the # hash symbol — #love — & a word. Simply put, brand tags are hashtags used with brands — #Patagonia.

Brands symbolize the relationships consumers have with companies and their products and services. Now, Open Brands is providing a way to watch and track that relationship. By monitoring these Brand Channels, as Open Brands calls them, Savvy brand owners will work with this information to maintain and improve the relationship they have with their customers in real time. Pretty cool!

 

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PTO Shortens Time of First OA

Insight April 06, 2010

On Thursday, June 4, 2009 the USPTO reduced its goal for “trademark pendency” to two months. “TM Pendency” determines how large of an inventory of unprocessed applications the USPTO should keep at any given time. The time frame discussed in relation to pendency is the time that it takes the PTO to issue a First Office Action (“OA”) from the application filing date.

The PTO TM Public Advisory Committee (“TPAC”) stated that the previous goal had been 2.5-3.5 months (for issuance of the initial OA). However, as a practicing trademark attorney, I’d say that OAs most commonly issue 3-4 months after the filing date.

I presume that most clients will be pleased with a shortened examination period, as most clients want their applications to issue as quickly as possible. The clients who will be negatively impacted by hastened examination are Intent to Use clients who sometimes have trouble brining their products and services to fruition as quickly as they initially hoped.

It will be interesting to see if the PTO meets its new goals and if so, how this effects the speed of the registration process overall.

 

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2009 LOHAS Forum

Insight March 30, 2010

On Thursday, June 4, 2009 the USPTO reduced its goal for “trademark pendency” to two months. “TM Pendency” determines how large of an inventory of unprocessed applications the USPTO should keep at any given time. The time frame discussed in relation to pendency is the time that it takes the PTO to issue a First Office Action (“OA”) from the application filing date.

The PTO TM Public Advisory Committee (“TPAC”) stated that the previous goal had been 2.5-3.5 months (for issuance of the initial OA). However, as a practicing trademark attorney, I’d say that OAs most commonly issue 3-4 months after the filing date.

I presume that most clients will be pleased with a shortened examination period, as most clients want their applications to issue as quickly as possible. The clients who will be negatively impacted by hastened examination are Intent to Use clients who sometimes have trouble brining their products and services to fruition as quickly as they initially hoped.

It will be interesting to see if the PTO meets its new goals and if so, how this effects the speed of the registration process overall.

 

 

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