Tag Archives: business attorney

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Leveraging Long Term Supply Agreements to Finance additional R&D and Expansion!

One often, overlooked method of financing growth is long term supply agreements with specific unit and pricing requirements.  Once, these long term supply agreements are finalized the supplier can rely on them for planning future growth.  The supplier gets a … Continue reading

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Gender discrimination in Silicon Valley and the Startup and VC Industry!

Gender discrimination may be more prevalent in Silicon Valley, the Startup and VC culture than most realize.  The reality is that most partners, VCs and Startup CEOs are men.  The Ellen Pao trial has brought these issues to light, but … Continue reading

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The Use of Disclaimers in the Context of Trademark Infringement Online!

The value of trademarks and trademark portfolios is in the ability to develop an online brand, increase your SEO ranking, and developing a good key word optimization site that allows you to acquire more online visitors than your competitors.  This is not the easiest thing to do, in light of, how often Google changes the webmaster policies or rules.  Moreover, the nature of organic search results is such that it does not stay constant, but is fluid–these organic searches that are performed by consumers are not going to be the same each month, quarter or year.

In addition, the use of disclaimers for trademark infringement you must be careful to ensure that your competitor is not able to diminish the effectiveness of the disclaimer by placing it in less visible area of the website.  If you are not careful the fees and expenses incurred or spent on a preliminary injunction will be wasted.  It is difficult to judge the effectiveness of a disclaimer, but the more prominent the disclaimer and the less likely it will be easily avoided by a consumer by clicking through a link or special portal the better off you will be as an online business operator.

If you take the time to develop a content rich website and develop a good SEO optimization strategy, then you want to ensure that it is adequately protected.   More importantly, if you expend the funds in acquiring a disclaimer to remedy consumer confusion, then you must make sure that at least the following is done:

1) the disclaimer is prominent in relation to the remaining content on the website;

2) the disclaimer is bolded, italicized, font and color are actually large and vibrant enough to ensure that it is easy for a consumer to find;

3) moreover, the disclaimer must be from a click through portal that requires the consumer to acknowledge that each has read and viewed the disclaimer;

4) also, the disclaimer must be such that it is only, avoidable after the issue of initial interest confusion has be resolved; and

5) the disclaimer is not subject to alteration or modification by online search robots.

This is a common concern in most trademark infringement matters or opinions in recent cases.  Often times, lawyers do their clients a disservice by winning the preliminary judgment hearing and failing to take the time to craft an appropriate disclaimer or include the appropriate language in the Judge’s Order.  See the following:  International Kennel Club, Inc. v. Mighty Star, Inc and Std. Process, Inc. v. Banks, 554 F. Supp Std. Process, Inc. v. Banks

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Attorneys’ Fees and Business, Civil and Commercial Litigation: What can be released and what cannot?

In an interesting Ruling from the IL First District Appellate Court, a panel found that it was not possible for the parties to a divorce proceeding to contractually waive the attorneys’ right to legal fees or file a fee petition. … Continue reading

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Managing International Transactions for Corporate Clients!

There are variety of challenges and obstacles to assisting clients in making sure that they are able to transfer distribution channels, facilities, and operations overseas.  Clients need to understand the layout of the land, the local customs and regulations on … Continue reading

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The Illinois Right of Publicity Act and the Commercial use of Another’s Identity!

There are many forms of intangible rights that protect individuals from those that may be looking to trade of your identity.   In Illinois,  your identity, such as your name, likeness,  image, voice, alias and other features that serve to identify who you are protected from rip-off artists and scammers.  A nice feature for artists, entertainers, actors, musicians, authors, designers, film producers, videographers, photographers, speakers, professors,  doctors, attorneys,  judges and politicians.

The statute provides for 1000 in statutory damages per violation, plus allows for the recovery of legal fees and costs for the prevailing party.  It is a codification of one of the oldest forms of intellectual property rights, your Likeness.   This was recognized at common law long before the existence of copyrights, patents, and trademarks. Other than trade secrets, it may be the oldest form of intangible right or asset a person can own.

The Act requires strict compliance and a written authorization from the person before any aspects of his or her identity can be used by another.   Working with an attorney that understands how your Identity is related to your business and personal affairs is vital to making sure you protect against all rip off artists.   If someone is misusing your photographs, image, voice, alias or other intangible features of your identity, then please contact us at http://www.vrplawgroup.com

TTAB Cancellation Proceedings, Timing of Motions for Summary Judgment, and Motions for Reconsideration!

It is surprising how often clients will not realize that the TTAB Opposition and Cancellation Proceedings are litigation proceedings.  They are administrative in nature, but the Federal Rules of Civil Procedure and Federal Rules of Evidence still apply.  Thus, filing a summary judgment can often be an effective method of resolving cancellation and opposition proceedings with the TTAB.   The TTAB’s rules do have some nuisances, such as the requirement that the parties exchange 26 (a) (1) disclosures before filing a summary judgment motion.

However, even in most Court proceedings the parties will not file a summary judgment motion, until after both sides have had an opportunity to complete discovery.  Unfortunately, the TTAB and its attorneys are not necessarily used to making rulings on evidentiary issues, motions in limine, and a variety of other areas of trial practice.  Thus, often times the TTAB does make mistakes on key evidentiary issues, standards of law and application of trial standards to TTAB cancellation and opposition practice.

Moreover, over often times, many TTAB Attorneys do not realize the need for a summary judgment to be decided based on admissible evidence.  The same standard applies to summary judgment motions in front of TTAB.  Thus, it is not unusual for the TTAB to make an error of law and require a party to file a motion for reconsideration.  In fact, many times this can be good opportunity to create your record for an appeal to a federal court that may be more comfortable with ruling upon evidentiary issues and deciding summary judgment motions based on Federal Rule of Civil Procedure 56.

Parties are allowed to appeal final decisions from the TTAB to their local Federal Courts, D.C. Circuits or the Federal Circuit and the Supreme Court.  Moreover, the parties may even be allowed to offer new or evidence that was excluded from the TTAB proceedings.  However, the TTAB does offer an Accelerated Case Resolution Process that can be used to have summary judgment motions be used for trial purposes. This can often be a cost saving and effective strategy for dispositions of the TTAB proceeding for both parties.

Thus, working with a Trademark Attorney that has Federal Court Litigation and Trial experience is vital to the success of a TTAB cancellation or opposition proceeding.  If you have any concerns or questions, then please feel free to contact us at http://www.vrplawgroup.,com

Business Owners, Small Franchisees, and Franchise Operators and breach of contract and fraud claims!

It is common place for there to be disputes between Franchisees and Franchisors. Often times, the dispute involves continued use of trademark licenses without paying royalties, claims of fraud involving financial information, and breach of contract or the franchise agreement.  However, there is some measure of protection from the unhappy or disappointed with their purchase of a franchise or a franchise store.  The franchisee often claims that the financial ;projections of the past performances of the franchise stores or operators.

There is often disagreement about what financial information was provided by the Franchisor and how much of it is mere puffery, opinion or an accurate reflection of the historical performance of different franchise stores.   However, in a recent Ruling the Illinois Appellate Court for the First District provided a finding that allowed Ace Hardware to defeat the claims asserted by Avon Hardware.  Avon Hardware asserted that Ace Hardware was liable for providing fraudulent or misleading sales and financial information to Avon Hardware.

Ace Hardware was found to have provided a variety of opinions and financial information to Avon Hardware, but was found to be not liable to Avon Hardware.  The primary reason for the First District Court’s dismissal of the common law or statutory fraud was the inability to overcome the language in the parties’ Franchise Agreement cautioning about the financial and sales data and the opinions contained therein.  The First District Court dismissal of the fraud claims were based on the Franchisees failure to plead and prove materiality and reasonable reliance on the Financial Sales and Data.

Thus, it is crucial for Franchisees to make sure that they verify sales projections and ensure that the Franchisor is required to provide audited financial and sales data.  This will help curtail the risk of being provided unnecessarily inflated financial information and sales data.  Moreover, it will help ensure that you do not have Buyer’s remorse.   Of course, if you have any concerns or questions, then please contact us at http://www.vrplaw.com