Blogs

Customs and International Trade Law Blog

Export Penalties Already Total $184 MILLION in 2014 – Want to Learn Who, What, Why & How to Stay Compliant?

04/23/2014 Jennifer Diaz
 
Within just the first nine weeks of 2014, almost $182 million dollars in penalties have been assessed against companies for OFAC and ITAR export violations.  Within those same nine weeks alone, companies have been ordered to pay the Department of Treasury almost $25 million dollars more than was ordered in all of 2013. Simply put, compliance is critical, and non-compliance is costly!
 
Don’t miss this update on export enforcement actions stemming from a busy 2013 and start of 2014. 
The webinar, hosted by the National Customs Brokers and Forwarders Association of America, Inc. (NCBFAA), will take place tomorrow, April 24, 2014, from 12:00 – 1:30 p.m. (EST).   
 
During this webinar, my colleague Perry Sofferman and I will discuss: 
  • What do you have to do (or not do) to get a $20 million dollar ITAR penalty from the DDTC? A review and explanation of the Esterline case.
  • OFAC has already issued $161,898,750 in total penalty amounts through March 6, 2014.  This amount significantly surpasses the total amount of penalties issued in 2013, only $137,075,560!
  • Learn why Ubiquiti Networks, Inc. agreed to a $504,225 settlement with OFAC for apparent violations of the Iranian Transactions and Sanctions Regulations.
  • Learn why Weatherford agreed to a $91,026,450 settlement with OFAC in 2013.
  • We will explore DDTC and OFAC cases to help you determine what preventive actions you must take to help avoid having to write those checks, or perhaps even suffer worse consequences.
  • This webinar is geared towards exporters and forwarders who want to assure they learn the elements of an effective compliance program and stay ahead of the curve.

Last chance to register!  Need another reason to join?  You’ll receive 1.5 CES Credits! NCBFAA members can participate for $50, non-members for $75.

Export Penalties - Webianr Notice - JPG

FDA Released Draft Guidance on Prior Notice of Imported Foods

04/07/2014 Jennifer Diaz

For those of you keeping up with the FDA Food Safety Modernization Act (FSMA), big changes are coming for those in the food industry.  We have been keeping you up to date with blogs on updates to FSMA. We have even created an updated website on FDA to help you understand the vast requirements under the FSMA, as well as complying with FDA generally. If you are a foreign manufacturer, processor, packer, storer or holder of food products, you need a U.S. agent, and must register with the FDA – for more information, review www.FDA-USA.com.

The latest news is that the FDA has released the third Edition of the U.S. Food & Drug Administration (FDA) draft guidance titled “Guidance for Industry: Prior Notice of Imported Food Questions and Answers”.  Prior notice is just what it sounds like, “notification to the FDA that an article of food, including food for animals, is being imported or offered for import into the United States in advance of the arrival of the article of food at the U.S. border.”

FDA is seeking comments on the draft guidance and addresses questions received since the publication of the second edition of the guidance in May 2004.  The guidance also includes information related to the FSMA, which requires additional information to be provided in a prior notice of imported food submitted to the FDA.  The FSMA included a new Prior Notice element, now the FDA requires a person submitting prior notice of imported food, including food for animals, to report the name of any country to which the article has been refused entry.

Although pursuant to 21 CFR 10.115(g)(5), comments can be made on the guidance at any time, in order to ensure that the FDA considers your comments on this draft guidance before it begins to work on the final version of the guidance, your comments must be submitted either electronically or in writing within sixty (60) days from the date in which the notice announcing the availability of the draft guidance is published in the Federal Register, or March 31, 2014.  If you have questions on FDA’s FSMA or on submitting a comment, please feel free to contact me at (305) 260-1053 or via email at JDiaz@bplegal.com.

Florida Construction Law Authority

Public Contracting: When Can I Be Heard?

03/17/2014 William J. Cea

461991811Bidders may have an opportunity to be heard during evaluation committee meetings or in conjunction with other proceedings during a competitive solicitation process.  Members of the public also have the right to a reasonable opportunity to be heard in accordance with a recently enacted Florida Statute, Section 286.0114.

Section 286.0114 went into effect on October 1, 2013, and provides that members of the public have a right to be heard on a proposition before a Florida “board or commission” takes official action.  The opportunity to be heard does not need to occur at the same meeting that the official action takes place, so long as it occurs during the decision making process and is within reasonable proximity in time before the official action is taken.  The board or commission may, however, adopt rules or policies, including limitations on the amount of time that an individual may speak and the number of persons who may speak on behalf of the same group.

As bidders are also members of the public, if the need arises to speak for or against a contract award, the new law provides another avenue to voice your concerns before a final decision is made.  Prior to stepping up to the microphone, however, you should confirm with the agency’s clerk as to whether there are any rules or procedures that have been adopted.  For example, there may be a form that you will need to fill out prior to speaking.

The Anatomy of a Water Leak

03/13/2014 Ryan Carpernter

For those of us who live or work in a condominium, it is easy to lose sight of all of the infrastructure that operates behind the scenes to make a condominium a home.  When that infrastructure fails, it can be inconvenient, or it can easily be disastrous in the case of a water leak.  While the damage from a water leak can be immense, there are ways to avoid or at least reduce the impact from them, if you are proactive before and after they occur, and know your rights and responsibilities.  

Taking steps like establishing inspection, maintenance and replacement schedules, and installing water leak detection systems, air conditioner pan alarms and remote sensors wired to master valve shut-offs can prevent problems from becoming a disaster.  In the event of a water leak, condominium associations should take advantage of their right to access units to protect common elements and other units, and prevent mold from forming.  Both the association and all affected unit owners should notify their respective insurance companies immediately, in writing, so their carriers’ adjusters can inspect the damage and advance cleanup, dry-out and repair costs.

While there might be a dispute over which insurance company should pay for what damage, as long as the required maintenance and replacements were performed and the damage was not the result of intentional conduct or negligence, some insurance coverage should apply to defray the financial impact of the leak.  Alternatively, taking the appropriate steps before and after a leak will enable the impacted parties to hold accountable those entities truly responsible for the leak, like contractors, suppliers and service providers.

The foregoing issues and others will be addressed during a continuing education course presented by Becker & Poliakoff, P.A. attorneys Lisa Magill and Ryan Carpenter on April 24, 2014 from 9:00am to 11:00am at 1 East Broward Boulevard in Fort Lauderdale, Florida (CAM credit available).  If you would like to attend, please register online by clicking here: http://callbp.com/event_registration.php?event_id=321.

Business Litigation Perspectives

Pregnancy Discrimination is Protected under Florida Law

04/23/2014 Kristie A. Scott
Posted by Kristie A. Scott

Recently, in Delva v. Continental Group, Inc., No. SC12-2315 (Fla. 2014), the Florida Supreme Court found that pregnancy discrimination is prohibited under the Florida Civil Rights Act of 1992 (“FCRA”).  The question was whether the FCRA prohibited discrimination on the basis of pregnancy even though it does not specifically include the word “pregnancy” and only refers to discrimination based on an individual’s sex.  The FCRA states, in part:

“It is an unlawful employment practice for an employer… [t]o discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.”

§ 760.10, Fla. Stat. (2013).  

In a 6 to 1 decision, the Supreme Court reasoned that pregnancy is a natural condition and primary characteristic unique to the female sex.  The court also considered the actual language and plain meaning of the statute.  They found that the general purpose of the FCRA was to secure “for all individuals within the state freedom from discrimination.”  This decision follows the lead from other states such as Massachusetts, which has decided that distinctions based on pregnancy are sex-linked classifications, and Minnesota, which prohibits employment discrimination on the basis of sex, even though their statute does not mention pregnancy and childbirth, because pregnancy discrimination is subsumed within sex discrimination.

One Justice dissented; arguing that the plain meaning of the FCRA does not encompass pregnancy discrimination because the term “sex” refers to gender, i.e., male and female, and that Floridians have recourse under federal law for employment discrimination.  Nevertheless, the majority stated that this decision, prohibiting pregnancy discrimination under the Florida Civil Rights Act of 1992, “ensure[s] that the women of this state are free from discrimination based on their sex” and to conclude otherwise “would undermine the very protection provided in the FCRA to prevent an employer from discriminating against women because of their sex.”

Congress moving closer to extending Title VII protections to sexual orientation

07/15/2013 Mark Trank
Posted by Mark Trank

iStock_000010379401Small.jpgA Senate committee has approved the Employment Non-Discrimination Act (ENDA) by a 15-7 vote, an action that could lead to an extension of federal law protections against workplace discrimination based on sexual orientation or gender identity. The legislation would prohibit employers from firing or refusing to hire people based on their sexual orientation or gender identity -- extending workplace protections that already apply to race, religion, gender, national origin, age and disability.

According to published reports, nearly 90 percent of Fortune 500 companies have non-discrimination policies that cover sexual orientation and 57 percent of these large corporations also ban discrimination based on gender identity. However, neither sexual orientation nor gender identity is protected under federal law, or under the laws of the majority of states.

Under the legislation, religious organizations and businesses with fewer than 15 employees are exempt from the bill. Interestingly, more than 100 businesses endorsed the legislation, and most business groups that usually resist new workplace laws and regulations have remained silent on ENDA.

Even if the bill passes the Senate, it will face a tough time in the House.

Florida Condo & HOA Law Blog

HOAs and Condo Associations Might Consider Workers’ Compensation Policy

04/21/2014 Joseph Adams
Question: I read your blog of April 3, 2014 Volunteers Can Cause Involuntary Liability For Condos and HOAs. Having a background in insurance, I agree with you about the types of jobs that volunteers should never perform. However, I would point out that one layer of protection associations might...

This is a summary only. Visit http://www.floridacondohoalawblog.com or click the post title for the full entry.

Upcoming Events — CALL Alert for April 18, 2014

04/18/2014 Yeline Goin
The House and Senate are not meeting this week because of the Passover and Easter holidays, so there is not much to report on the pending legislation.  Therefore, I wanted to take the opportunity let you know about some upcoming events that will be of interest. CALL Town Hall Meeting and...

This is a summary only. Visit http://www.floridacondohoalawblog.com or click the post title for the full entry.

Social Media Law and Practice

Court Rejects Lawsuit against Facebook Claiming Misuse of Minors’ Photos

04/01/2014
A U.S. District Court Judge has dismissed a proposed class action lawsuit against Facebook. The suit claimed that the social media company is impermissibly using the names and likenesses of minors in its advertising.

Judge Richard Seeborg, of the U.S. District Court for the Northern District of California, rejected the plaintiff’s assertion that, even if permission for such use was acquired via the plaintiffs’ acceptance of Facebook’s Statement of Rights and Responsibilities (“SRRs”,) since the plaintiff class is made up solely of minors the SRRs are unenforceable against them under Californialaw.  Judge Seeborg writes, “Plaintiffs’ arguments largely flow from an opposite and incorrect presumption, that minors generally do not have the power to contract.”  Under California’s Family Code §6710, “Except as otherwise provided by statute, a contract of a minor may be disaffirmed by the minor before majority or within a reasonable time afterwards or, in case of the minor’s death within that period, by the minor’s heirs or personal representative.”  “Although this section almost certainly would allow [p]laintiffs to disaffirm the SRRs, they have never plainly expressed an intent to do so, and they do not dispute that they continued to use their Facebook accounts long after this action was filed.  While Plaintiffs argue that a minor may disaffirm a contract without restoring any of the benefits he or she has received, they have offered no explanation as to how the principle would somehow retroactively vitiate the consent they had given through the SRRs at the time their names and profile pictures were used,” writes Judge Seeborg. 

According to Facebook it only republishes information users have already voluntarily shared with certain Facebook friends with those very same friends and “sometimes alongside a related advertisement.”

The order dismissing the complaint is available here.

James Dean Rumbles With Twitter Over Alleged Trademark Infringement

02/19/2014
A complaint, originally filed in an Indiana state court, was moved to federal court last week alleging that Twitter’s failure to terminate the @JamesDean handle and site violates various laws including, among other laws, right of publicity, trademark infringement and false endorsement under the Lanham Act.


Indiana, which is home to one of the most expansive right of publicity laws, is also home to CMG Worldwide, which manages the commercial estates and licensing rights of many deceased celebrities, including James Dean.  The complaint was brought by James Dean, Inc. against both Twitter and certain John Doe defendants who are the currently unidentified owners of the James Dean Twitter site.  According to the complaint, “On numerous occasions since October 11, 2012, CMG, by and on behalf of its client, JDI, has contacted TI [Twitter, Inc.] in an attempt to have the Unauthorized Use’…’ceased.” 

The complaint notes that JDI holds federally registered trademarks to the James Dean name and that both Twitter’s and Does’ conduct “is likely to cause confusion, to cause mistake, or to deceive as to source, sponsorship, connection, association or affiliation between CMG, JDI, and TI and Does.”  The JDI complaint also asserts both Indiana state statutory and common law right of publicity violations.  Among other remedies, the complaint seeks an injunction requiring Twitter to turn over the names of the site’s owners, which Twitter has so far refused to do.  Interestingly, in correspondence attached to the complaint, CMG in early correspondence with Twitter asserts that the @JamesDean site is in violation of Twitter’s own trademark policy and guidelines for “Fan Accounts,” writing “First, you state that ‘the username should not be the trademarked name of the subject of the news feed, commentary, or fan account. Here, the subject of the Twitter feed is James Dean, and the username @JamesDean consists solely of the trademarked name.  Second, you state that ‘[t]he profile name should not be the trademarked name of the company or include the trademarked name in a misleading manner.  The profile name for the account in question is listed as ‘James Dean.”  “Your third guideline states, “The bio should include a statement to distinguish it from the real company, such as ‘Unofficial Account,’ ‘Fan Account’ or ‘Not affiliated with…”.  The @JamesDean account’s bio contains none of these distinguishing statements.” 

A piece in the Hollywood Reporter notes, “Over the years there have been many disputes over Twitter handles, but not quite like this one.  The social media site has an “impersonation policy” that forbids accounts portraying another person in a confusing or deceptive manner as well as a trademark policy,” but apparently the service has drawn a line in the sand when it comes to dead celebrities.”

Koz on Gaming

Fate of New Jersey Sports Betting Case Likely to be Decided by the Supreme Court at Either June 12 or June 19 Conference

04/22/2014
The Supreme Court is likely to decide the fate of New Jersey's petition for writ of certiorari at either the June 12, 2014 or June 19, 2014 conference. I feel relatively safe in making this prediction following my review of the Supreme Court's "Case Distribution Schedule." Apparently, the Court is pretty regimented about the process of deciding petitions. With the responses to the petition now due on May 14, 2014 (as a result of the recent agreed extension), I expect the petition, briefs in opposition, any reply brief and the amicus briefs to be distributed to the Justices on either May 27, 2014 or June 3, 2014, in accordance with Supreme Court Rule 15(5). A distribution date of May 27, 2014 corresponds to the June 12, 2014 Conference, and a June 3, 2014 distribution date corresponds to the June 19, 2014 Conference. The Court decides the fate of the petitions at these conferences and publishes the Orders on its website the following Monday. However, it is quite possible in this case -- given the three separate petitions for writ of certiorari, two groups of respondents (the sports leagues and the Department of Justice) and the fact that there are three amicus briefs -- this may very well make it into the Court's summer recess with no action being taken. The Court's last conference before the summer recess is June 26, 2014. If no action is taken on the petition by that date, then the earliest that the Court could conceivably act on the petition is September 29, 2014, which is the date of the Court's first conference following the summer recess.

So, we either have to wait approximately six more weeks or five more months to learn the fate of New Jerseys petition. But let me clarify something -- the Court is not ruling on the merits of the petition -- at this juncture, it is only deciding whether to "review" the case in the first instance. That is a big hurdle to clear, as less than 5% of all paid petitions are granted. If the Court decides to review the case, then an entire new round of briefing would begin, and the Court would likely schedule oral argument for sometime in 2015.

SCOTUS Blog Features Daniel Wallach on N.J. Sports Betting Case

04/18/2014
In today's daily "round-up," the award-winning SCOTUS Blog mentioned Daniel Wallach's article on the New Jersey sports betting case, which is the subject of three pending petitions to the United States Supreme Court. Entitled "New Jersey's Double-Barreled Federalism Challenge to Sports Betting Ban," Dan's article was recently published in The Appellate Quarterly, a publication of the Appellate Advocacy Committee of the ABA's Tort and Trial Insurance Practice Section. Dan is the Chair-Elect of that Committee, and takes over as Chair beginning with this August's ABA Annual Meeting in Boston.

Eminent Domain Law in Florida

Pasco County Found To Have Acted Unconstitutionally Regarding Property Rights... Again

02/11/2014

It hasn’t been long since Pasco County was found to have acted unconstitutionally regarding property rights.  Last year, in Hillcrest v. Pasco County, Pasco County’s ‘Right of Way Preservation Ordinance’ was found to be unconstitutional and was therefore invalid.  Yet, only months later, a different landowner, F.A.K. Enterprises Inc., is suing Pasco County to establish a taking by arguing that Pasco County made unreasonable and unconstitutional conditions on the development of their property.  Sound familiar?  In the current case, Pasco County allegedly asked the landowner to connect two roads and complete intersection improvements; this developmental change cost an estimated one million dollars.

The suit against Pasco County was brought because the plaintiff, F.A.K. Enterprises Inc., contends that the County can’t make them build off-site improvements, not related to their project.  Further, as the property owner began to market the property, the County told prospective buyers that their development of the road and improvements was going to be a condition of their purchase.  F.A.K. Enterprises Inc. argues that this is a violation of due process and equal treatment under the constitution. Pasco County’s position is that the land was rezoned in 1998 for the previous owner; at that time, Pasco County placed a condition on the property that required the landowner to connect the roads and complete the intersection.

F.A.K. Enterprises Inc. recently filed a complaint seeking a declaratory decree that Pasco County’s Zoning requirements are unlawful. The complaint also seeks compensation from Pasco County for interference with owner's property rights.  Since it is too early to tell how the court will rule, we will keep you posted on the court’s decision.

Pasco County Sued For Having Acted Unconstitutionally Regarding Property Rights … Again

02/11/2014

It hasn’t been long since Pasco County was found to have acted unconstitutionally regarding property rights.  Last year, in Hillcrest v. Pasco County, Pasco County’s ‘Right of Way Preservation Ordinance’ was found to be unconstitutional and was therefore invalid.  Yet, only months later, a different landowner, F.A.K. Enterprises Inc., is suing Pasco County to establish a taking by arguing that Pasco County made unreasonable and unconstitutional conditions on the development of their property.  Sound familiar?  In the current case, Pasco County allegedly asked the landowner to connect two roads and complete intersection improvements; this developmental change cost an estimated one million dollars.

The suit against Pasco County was brought because the plaintiff, F.A.K. Enterprises Inc., contends that the County can’t make them build off-site improvements, not related to their project.  Further, as the property owner began to market the property, the County told prospective buyers that their development of the road and improvements was going to be a condition of their purchase.  F.A.K. Enterprises Inc. argues that this is a violation of due process and equal treatment under the constitution. Pasco County’s position is that the land was rezoned in 1998 for the previous owner; at that time, Pasco County placed a condition on the property that required the landowner to connect the roads and complete the intersection.

F.A.K. Enterprises Inc. recently filed a complaint seeking a declaratory decree that Pasco County’s Zoning requirements are unlawful. The complaint also seeks compensation from Pasco County for interference with owner's property rights.  Since it is too early to tell how the court will rule, we will keep you posted on the court’s decision.

Public Private Partnership Exchange

Becker & Poliakoff COO George Burgess Named to Florida P3 Task Force

08/06/2013 Becker Poliakoff
FT. LAUDERDALE, FL, August 6, 2013 – Becker & Poliakoff is proud to announce that George Burgess, COO of the firm and co-vice chairman of its Public Private Partnership (P3) Practice Team, has been appointed to serve on the task force created by the state’s new P3 legislation.

Appointed by Governor Scott, the Partnership for Public Facilities and Infrastructure Act Guidelines Task Force will recommend guidelines for creating a uniform process for establishing public-private partnerships as directed by Florida’s new P3 law which took effect in July.
Chaired by Craig J. Nichols, the Secretary of Florida’s Department of Management Services, the seven member task force will serve a term beginning this month and ending December 31, 2014. Members also include:
  • Frank C. Attkisson, County Commissioner in Osceola County
  • Sonya C. Little, Chief Financial Officer for the City of Tampa.
  • Andy Tuck, a school board member for Highlands County.
  • Michael H. Olenick, vice president of corporate affairs and chief compliance officer of The Morganti Group.
  • John “Jay” Smith, vice president at Ajax Building Corporation.
Mr. Burgess said, “Florida’s new P3 law expands the realm of possibilities for businesses to work together with counties, municipalities and special districts on projects that serve a public purpose, including airport or seaport structures, pipelines, mass transit infrastructure, nursing homes, educational buildings, and cultural centers or sports stadiums.”

Mr. Burgess joined Becker & Poliakoff in 2011 after a 28-year career in Miami-Dade County government. As County Manager for eight years, he held the highest executive position in one of the largest and most complex metropolitan regional governments in the United States.

P3 and other major infrastructure projects with which Mr. Burgess had direct involvement include the Port of Miami tunnel, Miami Marlins stadium, Miami International Airport terminal expansion project, Metrorail and automated people mover connections from downtown Miami to Miami International Airport, and numerous capital projects developed through the voter-approved $2.9 billion Building Better Communities Bond Program.

Becker & Poliakoff’s P3 practice team provides legal and consulting services to public entities and private businesses that are pursuing public purpose projects with private funding in order to handle the pent up demand for improvements to roads, sewers, schools and other public assets as a result of shrinking government funding. 

About Becker & Poliakoff
Becker & Poliakoff is a diverse commercial law firm with more than 155 attorneys, lobbyists and other professionals in 18 domestic and international offices. Celebrating its fortieth (40th) year of serving clients, the firm has eight primary areas of practice: Real Estate, Construction Law & Litigation, Community Association, Customs & International Trade, Business Litigation, Corporate & Securities, Government Law & Lobbying, and the Intellectual Property & Emerging Technologies practice. For more about the firm, visit: www.becker-poliakoff.com or http://www.becker-poliakoff.com/blogs.aspx to access forums on the latest ideas and opinions on legal matters hosted by Becker & Poliakoff attorneys.

Becker & Poliakoff's Public Private Partnership team joined Governor Rick Scott for the signing of HB 85

07/23/2013 Becker Poliakoff
Becker & Poliakoff’s Public Private Partnership team joined Governor Rick Scott for the signing of HB 85, the new Public Private Partnership law in Florida. Bill sponsors Senator Miguel Diaz de la Portilla and Rep. Greg Steube were joined by other elected officials, and industry and community leaders for the bill signing and reception hosted by Becker & Poliakoff at Miami Dade College. Sen. Diaz de la Portilla and Rep. Steube thanked Lee Weintraub, Chair of the firm’s P3 team for all of his hard work assisting with the bill’s drafting and ultimate passage.





IP and Information Law Monitor

Exercising Function Over Form: The Second Circuit Corrects the Christian Louboutin Ruling while Avoiding the Doctrine of Aesthetic Functionality

02/22/2013 Michael N. De Biase, Esq.

About a year ago, I wrote an article discussing the Christian Louboutin v. Yves St. Laurent decision, Christian Louboutin S.A. v. Yves Saint Laurent America, Inc., 778 F. Supp.2d 445 (S.D.N.Y.2011) (the “Mistaken Case”), and how it exposed the lack of communication between Customs and Border Protection (“CBP”) and the United States Patent and Trademark Office (“USPTO”).  A link to that article can be found here.  What I left out of my article was my confusion and disagreement with the court’s decision to purportedly cancel Christian Louboutin’s (“CL”) trademark (trade dress) for the red lacquered sole adorning its high heeled shoes (“Mark”). 

In the Mistaken Case, the lower court made an overreaching and overbroad ruling that prohibited single color trademarks (trade dress) from being protected in the fashion industry.  A couple of months ago, the U.S. District Court of Appeals for the Second Circuit overturned the lower court’s holding, which was based on, as Judge Cabranes put it, an “[i]n correct understanding of the doctrine of aesthetic functionality”.  See Christian Louboutin S.A. v. Yves Saint Laurent America Holding, Inc., 696 F.3d 206 (2012) (the “New Case”). 

It wasn’t until I was at a Christmas party explaining the case to some friends, one of which was rocking the long heels and red bottoms (CL shoes), that I decided to revisit the case.    I was pleasantly surprised to have one of those “it’s not me, it’s you” moments, when I realized that it was the lower court that misunderstood the application of the aesthetic functionality doctrine, not me.  The New Case, although punting on a decision regarding the aesthetic functionality doctrine, holds that a single color is worthy of trademark protection, even in the fashion industry, if it has acquired distinctiveness by establishing secondary meaning in the public’s eye.  In other words, the mark or symbol has come to be known as a brand or source identifier.

The courts in the Mistaken Case and the New Case both made quick work of determining that the Mark had acquired distinctiveness by establishing secondary meaning.  However, in the Mistaken Case, the court used the doctrine of aesthetic functionality to terminate the Mark.  A mark is aesthetically functional when an ornamental feature of the mark effectively limits competition within the relevant market.  I can understand the argument that by allowing CL a monopoly over the lacquered red sole, the Mark could limit competition.  However, as the Mistaken Case failed to appreciate, and the New Case deftly articulated, it is the contrast; the arbitrary presence of the lacquered red sole that makes the Mark distinctive.  With this in mind, the court directed the USPTO to amend the Mark so that it only applies in situations where the upper shoe contrasts with the lacquered red sole.

This decision was a win-win for everybody involved, including all the consumers out there who spent the premium for the long heels and red bottoms.

Patent Attorney, Richard Litman and Six Other IP Attorneys Join Becker & Poliakoff

10/03/2012 Perry F. Sofferman, Esq.
Becker & Poliakoff announced that Richard C. Litman, a patent attorney and founding shareholder of the Litman Law firm based in Manassas, Virginia has joined Becker & Poliakoff. With more than thirty years in legal practice, Mr. Litman joins Becker & Poliakoff along with five other registered patent attorneys, six registered patent agents, a trademark attorney and a staff of twenty. He will chair the firm’s Intellectual Property & Emerging Technologies Practice Group, and serve as the Managing Shareholder of the firm’s new office in Northern Virginia. Based near the U.S. Patent and Trademark Office (USPTO) in Virginia, the new Becker & Poliakoff practice also includes former USPTO Director Richard J. Apley who leads the team of patent practitioners, and patent searchers, patent illustrators, technical specialists and client service managers. The new practice group represents universities, research centers, government programs, inventors, and emerging companies around the world and domestically which are developing and protecting inventions of all types, including energy, water and environmental technology, information and communications technology, and life sciences, medical and biotechnology.
Gary Rosen, the firm's Managing Shareholder and an IP litigation attorney noted that the addition of the Litman firm further expands the firm's capacity to handle complex IP litigation.  

"Richard's practice complements our existing practices and accelerates our efforts to grow and diversify our service offerings to clients," said Gary C. Rosen, Managing Shareholder of the firm. "Richard and his team have already begun working with attorneys in our New York and Florida offices on the formation and structuring of technology business entities, licensing and commercial contracting matters, mergers and acquisitions, international IP protection, and technology development and commercialization.
Litman, a 1979 cum laude graduate of the University Of Miami School Of Law, holds two advanced law degrees, a Masters in Forensic Sciences and a LL.M. in Patent and Trade Regulation Law obtained while serving as the Food and Drug Law Institute Fellow. He is a Registered Patent & Trademark Attorney and a member of the Florida, Virginia, D.C., Maryland and Pennsylvania bars. He also serves as chairman of a commercial bank in Northern Virginia