Monthly Archives: September 2010

The Americans with Disability Act-Drug and Alcohol Addiction!

Many employers may not realize that drug or alcohol addiction can qualify as a disability under the Americans with Disabilities Act (ADA).  If there is an employee that is in a rehabilitation program with an addiction that substantially impairs his or her life activities, then he or she may be protected under the ADA.  The employee’s participations in the rehabilitation program generally, qualifies as a disability or a perceived disability.  42 U.S.C. section 12114 (b). 

However, depending on whether or not the employee’s ongoing use of illegal drugs, the notices provided to the employee, and the violations of employment rules, the employer may still be able to discipline or terminate the employee.  42 U.S.C. 12114 (a)  and Conley v. Village of Bedford Park,  215 F.3d 703 (7th Cir. 200o).  It should be noted that addiction to alcohol or alcoholism may constitute a disability just like addiction to any other drug addiction.  Despears v. Milwaukee County, 63 F.3d 635 (7th Cir. 1995).  

Employers should take heart that typically, recreational alcohol or drug use is not protected under the ADA.  Moreover violations of an employer’s drug and alcohol policy are often sufficient to justify their adverse employment actions.  Even though, alcoholism is a disability, driving under the influence and reports of alcohol odor are sufficient to justify dismissal of an employee.  Bekker v. Humana Health Plan, Inc., 229 F.3d 662 (7th Cir. 2000).

If you have any questions or concerns about whether or not your drug and alcohol policy complies with the ADA, then please feel free to contact us.  If you are reading this at any other site, then it is likely to be an infringing copy of the article or post provided at the Intellectual Property and Employment Law Blog.

Copyright Protection for Semiconductor Chips?

Copyright protection of semiconductor chips or more appropriately mask works is available under section 901.  The owner of a mask work typically gets the exclusive copyrights to reproduce the mask work, and import or distribute a semiconductor chip product embodying the mask work.

 The Owner is generally the person that first created the mask work.  However, the Owner can also be the employer or the person to whom the initial creator assigned or transferred his or her rights.   Generally, a mask work is protected from the date of commercial exploitation throughout the world or the date of registration of the mask work under section 908. 

Providing a mask work notice to others of your rights can help in protecting your rights.  The mask work is generally protected for ten (10) years, but is subject to certain limitations for reverse engineering, first sale, and innocent infringer defense.  However, this may be a more cost effective alternative for protecting or developing intellectual property rights for semiconductor manufacturers.  

These rights can be enforced through the courts, similar to other intellectual property infringement claims.   If you have any other concerns or questions relating to mask work rights, then please feel free to contact us. 

If you are reading this anywhere, but the Intellectual Property and Employment Law Blog, then you are reading an unauthorized or infringing copy.

What is the TTAB? Can I file an Opposition or Cancel a mark?

The TTAB is not some form of disease, but a part of the United States Patent and Trademark Office. The TTAB is more commonly known as the Trademark Trials and Appeals Board. The TTAB is an agency that utilizes a quasi-judicial process to render decisions about whether or not an application for trademark protections is entitled to registration on the Federal Register. The TTAB is responsible for determining the rights of a trademark application vis a vis other trademark owners or third parties.

The TTAB has its own set of rules and applies the Trademark Manual of Examining Procedures (TMEP) in rendering its decisions. However, the TTAB also utilizes and applies the federal rules of civil procedure and evidence. Thus, understanding the TTAB rules, trademark prosecution and federal litigation procedures is vital to properly representing clients with the TTAB.

An opposition is a proceeding in which a third party or trademark owner can protect its common law or federal mark from being harmed by the registration of an other’s mark on the Federal Register. A petition to cancel is a process by which a third party or a competitor can move to cancel a trademark registration for fraud, genericness or other defects.

However, there are strict time lines and procedures to TTAB proceedings. The failure to act in a timely manner can have a profound impact on the scope of trademark protection you can obtain for your business or trade name.

Please feel free to contacts us, if you have any concerns or questions about the following: 1) incorporating trademark opposition or cancellation proceedings into your business practices; 2) protecting or enlarging the scope of protection for your service or trademarks; 3) preventing a competitor from encroaching on your mark, business or service names, licensing streams, product or service channels; or 4) responding to oppositions or cancellations filed against you.