April 11, 2014

Google's "GLASS" Trademark Application Bogged Down at the USPTO

When a company develops an innovative new product, it's natural for them to protect it. Protecting it might involve applying for a patent that covers the design or production method. It can also involve applying to register a name or slogan in connection with the invention.

Google%20Glass%2054871532-001.jpgThat was exactly Google's intention when they filed an application to register the trademark "GLASS" in 2013. GLASS refers to Google's groundbreaking wearable computer. The device, which features an optical display that is mounted on the user's head, is able to display data much like a smartphone does. However, the Google Glass is a hands free device. The device is operated entirely by voice commands.

The company has already registered the GOOGLE GLASS mark in connection with the device, but the second application for a stylized version of the single word GLASS has been stalled in the U.S. Patent and Trademark Office.

When a trademark examiner reviewed the application, it was rejected on two grounds. The first is that the mark is merely descriptive. Namely, the mark is GLASS and the goods that it will be used on are glasses. Secondly, the trademark examiner argues that the applied for mark is too similar to other marks that are already registered for similar goods.

Counsel for Google responded to the Office action with an almost 2,000 page answer. The vast majority of the response was made up of approximately 1,900 articles that have been written about Google Glass. Essentially, submission of these articles is meant to demonstrate that Google Glass is already so well known that consumers will not confuse it with other products. In the response, the attorneys also argued that the product contains no actual glass and is composed mainly of plastic and titanium.

The USPTO has yet to respond to Google's most recent filing. Time will tell if the answer filed by Google's lawyers will convince the trademark examiner of the distinctiveness of the GLASS mark. Since it is a foregone conclusion that competitors will try to mimic Google's innovations, the company is wise to vigorously pursue intellectual property rights.

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April 4, 2014

California Parent Seeks Restraining Order Against Nine Year-Old

The media has turned a lot of attention toward bullying in recent years. Campaigns online and in school seek to educate kids about bullying and how to handle it. Schools have adopted "zero tolerance" policies and instituted stiff penalties for kids who engage in bullying. However, what happens when the parent of a bullied child believes the school isn't reacting appropriately to accusations of bullying?

Bully%20Stop%20Violence%2053127538-001.jpgFor parent Stephan Feuder in Fairfield, California, the answer is to file a temporary restraining order. His son is a 9 year-old fourth grader at Rolling Hill Elementary School. For the last few months, Feuder has been suffering bullying attacks from another student. The son asserts that the bully has stalked him and used verbal intimidation, including racial slurs. Things came to a head on March 13 when the bully allegedly physically attacked Feuder.

Feuder says the bully was attacking another student when he intervened. The bully pushed Feuder, who pushed him back. The bully retaliated by punching Feuder in the face. Feuder retreated to a school bathroom where he called his father. However, when Stephan Feuder reported the incident to the school, they refused to treat it as a case of bullying, calling it an "isolated incident" instead.

Stephan's next contact was with the Solano County Family Court where he asked for and received a temporary restraining order that is meant to keep the bully two yards away from his son at all times. The restraining order is effective immediately, but cannot be permanently enforced without the last name and full address of the bully, information that the school district refuses to supply.

School officials argue that they do not tolerate bullying, but must follow procedure before meting out discipline. Kris Corey, district superintendent, states: "We just can't expel somebody … there are certain laws we have to follow."

In the meantime, Stephan Feuder is seeking name and address information on the bully so that the restraining order can be served and take full effect. He feels his actions are protecting his son and other students who may have been bullied by the same child.

March 28, 2014

Michigan Teacher Files Suit After Order for Psychological Exam

Whether or not a public school district can require a teacher to submit to psychological examination is at the heart of a lawsuit recently filed in Michigan. The math teacher from Huron High School, who remains anonymous in the filing, states in her complaint that she was placed on leave from her job back in December 2013. At the time, district officials had already scheduled a psychological exam to happen in January 2014 before the teacher would be allowed back in the classroom.

Psych%20Head%20Puzzle%2060439674-001.jpgThe instructor balked at the requirement, despite the fact that the district is within its rights to request such an evaluation based on its current agreement with the teachers' union. In her complaint, she alleges that the examination is essentially a violation of her 4th Amendment rights, and that it constitutes an illegal search.

Details regarding the circumstances that led up to the teacher being put on leave are scant. She was assigned to a new class at the beginning of the school year called Math Analysis. Another teacher was also assigned to teach a different division of the course, and both teachers used the same syllabus. However, just a few months into the school year, the school began receiving complaints from parents about the teacher who was subsequently put on leave and filed a lawsuit. Among the complaints was an allegation that the teacher had spoken out in the classroom against gay marriage.

Nonetheless, the math teacher maintains that she has not verbally or physically abused any students, parents or co-workers, and that she did not deserve to be put on leave and should not be required to submit to a psychological examination. The school district differs without mentioning many specifics. However, statements suggest that the teacher has in fact violated district policies and has somehow engaged in discriminatory acts.

While the district cancelled the psychological examination at the teacher's request, they are still requiring completion of the evaluation before she returns to the classroom. In the meantime, the lawsuit is still pending, with the plaintiff seeking damages for lost wages and physical and emotional distress.

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March 14, 2014

United States Supreme Court Case May Decide if Employees Should Be Compensated for Daily Security Screening

People are accustomed to waiting in security lines at the airport. It's considered an annoying, although important, part of travel. However, employees in some businesses are required to pass through security on their way to and from work, and employees at an Amazon warehouse in Nevada feel they should be compensated for this time.

crowd%20in%20line%2028865636-001.jpgThe employees worked for Integrity Staffing Solutions, and provided temporary help at an Amazon.com warehouse. Jesse Busk and Laurie Castro, both of Nevada, say they were required to submit to a lengthy security check upon entering and before leaving the warehouse every day. They were not on the clock while waiting at security. Allegedly, the check could take as long as half an hour as employees waited their turn in line.

Amazon had good reason for instituting the security checks. In the past, employees had been arrested at various warehouse sites for pilfering thousands of dollars in desirable merchandise. Thus, instituting a thorough security check every day simply made good business sense.

Plaintiffs in the current lawsuit, which is now before the U.S. Supreme Court, argue that they should be compensated for the time they spent standing in line for security checks. They are relying upon the Fair Labor Standards Act, or FLSA, as the basis for their argument, but their employer does not agree that they are entitled to compensation.

Instead, Integrity believes that time spent in security checkpoints is akin to waiting in line for a paycheck or the time spent walking from a car to the office, and is not covered under FLSA. It's not the first time that such cases have been brought to court. Both employees of airports and nuclear power plants have sued for and failed to win compensation for time spent in security. Because those checks were a requirement instituted by the TSA, courts did not side with the plaintiffs.

However, this case is different. An employer is being sued as the party that required the security checks while in the previous cases an outside entity mandated the security procedures. Whichever way this case goes, it will certainly set a precedent for other similar cases.

March 7, 2014

ACLU Intervenes to Save Student from Discipline Over Tweet

A Massachusetts high school student who landed in hot water after posting a profane tweet has successfully enlisted the ACLU to intervene on his behalf. The student, Nick Barbieri, is a senior at North Attleboro High School. His school sent a tweet in early February that informed students of a class cancellation because of inclement weather. The tweet ended with a "See you in June," which Barbieri seems to have interpreted as a sarcastic tagline referring to the makeup day that would be required in June.

Social%20Media%20Compass%2054107999-001.jpg
Barbieri responded with a tweet of his own that read, "F--- off." It wasn't long before school officials were calling his home and demanding that the tweet be deleted. The student complied, and assumed that the situation was at an end.

However, when school resumed, Barbieri found himself being pulled out of class multiple times to discuss the situation and the punishment that the school was contemplating. Barbieri faced a minimum six hours of detention, and may have been subject to suspension.

He took to Twitter once again, sending messages about the school's response and the pending punishment. North Attleboro High responded by asking him to delete these tweets as well. Frustrated, Barbieri finally sent a tweet directed to the ACLU, asking that they help him to protect his right to free speech as it is guaranteed by the First Amendment.

Stepping in quickly, an ACLU lawyer drafted a letter (available HERE) to school officials that asked them to reconsider their approach to the situation. The letter pointed out that the school did not have the right to punish a student for his remarks while off school property, even if those remarks related to the school. Moreover, the letter suggested that the school actually owed Barbieri an apology for seeking to punish him for speaking his mind.

The letter worked. North Attleboro High reversed its decision to punish Barbieri for the tweet, and his record has been cleared. Barbieri remains philosophical, noting that social media is unexplored territory for many, and that schools will have to deal with the fact that tweeting invites comments from others.

March 1, 2014

We are Always Looking for One or Two More Good Clients . . . Even When Business is Great

One of the questions I hear frequently is about whether we are accepting new clients.

While the short answer is “Yes”, here is some additional information which many people find interesting.

Great%20Fit%20Gears%2039896521-001.jpgOur law firm, Sylvester Oppenheim & Linde is committed to client service and quality legal representation for each and every client. That means that we only accept clients who we feel are a good match for our expertise, experience and areas of practice.

I learned a long time ago that we can’t be all things to all clients, but we can be all things to some clients: and those are the ones we accept and serve in an exemplary manner.

The purpose of this blog is to provide helpful information to anyone who reads it. On our website, you will find another example of our “Be of Service” attitude by reading our Home Page Article “Eleven Questions to ask BEFORE Hiring a Business Attorney”. You will also find a list of our practice areas on that page.

Our clients tell us that they appreciate our honesty, accessibility and guidance. And we appreciate our clients.

Back to the question. The answer is: “Yes, we are always looking for one or two new good clients.” If you have a legal issue, I invite you to call and let’s find out whether we are a great fit for each other. I can be reached at 818-461-8500 or via the Contact form on this page.

Richard Oppenheim

February 28, 2014

Peanut Butter Pretzels at the Heart of Trader Joe's Lawsuit

Snack foods are big business in America. Just ask Trader Joe's, a grocery store chain with a reputation for offering difficult-to-find foods. Among their most innovative and desirable products is the peanut butter pretzel, a salty-and-sweet confection involving a pretzel shell filled with peanut butter. It's a delectable snack, and it can mean big money for whomever supplies Trader Joe's with the product.

snacks%2053061838-001.jpgSince the early 1980s, Trader Joe's supplier has been Maxim Marketing. This southern California business essentially acted as a middleman between the factories that were making peanut butter pretzels and the retailer. It was a lucrative setup, with Maxim selling approximately nine million dollars worth of pretzels to Trader Joe's on an annual basis.

It seemed to be a win-win situation until food giant ConAgra starting buying up the factories that produce peanut butter pretzels. Suddenly, Trader Joe's began to see the value in contracting with ConAgra directly for its salty sweet fix.

That left Maxim Marketing out in the cold. With Trader Joe's bypassing them to go directly to the source – something they have a reputation for doing in numerous situations as a cost saving strategy – Maxim's bottom line was suffering. Things became dire for the marketing firm, and they filed a lawsuit against Trader Joe's and ConAgra.

The complaint alleges that Trader Joe's committed a breach of contract with their supplier, Maxim. Moreover, Maxim says that ConAgra has a monopoly on the peanut butter pretzel market because they own so many of the factories that make the snack. Maxim's arguments amount to saying that the monopoly makes it impossible for them to conduct business.

Trader Joe's has yet to comment publicly on the lawsuit, and has not yet filed an answer. A ConAgra spokesman calls the claims "baseless and built on false accusations." While this may seem like a lot of unnecessary brouhaha over an inconsequential snack food, the reality is that a great deal of money is at stake. While the defendants have not officially responded to the litigation, it seems clear that the case will be aggressively defended before a decision is reached.

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February 21, 2014

Gates Foundation's Grant to Public School District in Jeopardy ?

A grant of $40 million seems like it would be sufficient incentive for a public school district and a teachers' union to get along, but a situation in Pennsylvania is proving otherwise.

Funding%2061101867-001.jpgFour years ago, the Bill and Melinda Gates Foundation pledged $40 million to Pittsburgh Public Schools. The foundation hoped that the money would be used to turn the school district into a model of what can be achieved when quality teachers are found in every classroom.

Pittsburgh Public Schools was given the grant after its political and educational leaders committed themselves to working together. The union and the school district were significant parts of that commitment. Unfortunately, those two parties remain unable to reach an agreement on how teachers will be evaluated under the guidelines of the grant.

The grant's main purpose was to "reward exceptional teachers and retrain those who don't make the grade." Accordingly, teacher evaluations would be based half on in-class observation while the other half would be made up by other criteria like student performance on standardized tests and student surveys.

It is a complex evaluation structure, and teachers do not seem to feel that it is one that promises equity. In fact, a union official notes that the standard for teachers in Pittsburgh is tougher than that in other districts in Pennsylvania and across the country. A teacher who does not receive a satisfactory evaluation two years in a row may be subject to firing. Moreover, while the district wants to rely less on seniority when it comes to layoffs, the union argues in favor of the state law that makes seniority a prime concern when layoffs are being considered.

For now, the Bill and Melinda Gates Foundation is not withdrawing grant funds. However, it has been said that they continue to monitor the situation and have expressed frustration with the impasse between the district and the union. It seems clear that unless district and union officials can reach some sort of agreement on teacher evaluations, the grant funds may be put in jeopardy, and the overall losers in the situation will be Pittsburgh Public School students.

February 11, 2014

Is MeetMe.com a Platform for Sexual Predators?

In some cases, social networking websites represent wonderful opportunities for users to connect with old friends and family or to make new acquaintances. However, that isn't always the case with MeetMe.com. This Pennsylvania based service features an app that allows users to locate other users within convenient physical proximity. Essentially, the app uses GPS signals from the users' cell phones to alert them when other users are near.

Online%20Risks%2057598610-001.jpgThe trouble is that MeetMe.com appears to have put few safeguards in place. People as young as 13 may sign up for the service, and it's very easy for older users to represent themselves as much younger people. The result has been a number of sexual assaults occurring between MeetMe.com users who are over the age of 18, and other users who are as young as 12.

San Francisco City Attorney Dennis Herrera recently filed a lawsuit against the networking website. He believes that MeetMe.com's lack of safety regulations provides sexual predators with a convenient means of finding victims. In Herrera's complaint, he notes that anyone can sign up for an account at the website, and that it's remarkably easy to enter any desired birth date. The site has about 40 million registered users. Estimates suggest that teens between 13 and 17 make up about a quarter of that number.

Teens may sign up for the website without obtaining the approval of their parents or legal guardians. This had led to several frightening incidents in California and in other places across the country. Incidents include a 29 year-old man who used MeetMe.com to send explicit messages to teen girls, a 23 year-old man who sexually assaulted a minor he met via the website and a 21 year-old man who represented himself as a 16 year-old in order to have sex with two minors, one just 12 years-old.

MeetMe's representatives have not made substantive comments on the suit, but say they have a dedicated security team that routinely scouts the website for sexual predators. It seems likely that MeetMe will be forced to review some of its policies in light of this litigation.

January 31, 2014

California Lawsuit May Change Regulations that Govern Teacher Tenure, Dismissal Practices

A trial that may prove to involve a landmark decision began this week in Los Angeles County Superior Court. At issue is regulations that govern teacher tenure and dismissal practices.

school%20bus%20%26%20child%2044980077-001.jpgThe complaint was filed in 2012 on behalf of nine California public school students who live in economically disadvantaged regions. With the backing of a nonprofit organization called StudentsMatter that advocates for equal educational opportunities, the lawsuit aims to change the way teachers keep their jobs and how they can be dismissed.

Currently, public school teachers receive tenure after 18 months. The tenure regulation, which essentially guarantees that a teacher will have permanent employment, applies to all teachers regardless of their performance. Another issue is the state's last in, first out policy. When layoffs loom, it is the teachers with the shortest service record who are the first to go, again without regard to their performance. The lawsuit also takes issue with a particularly inefficient and expensive dismissal process that makes it unduly burdensome for schools to get rid of teachers who are not effective or who have had serious complaints made against them.

The lawsuit claims that these regulations are particularly detrimental to the quality of the education received by disadvantaged California students. It alleges that teachers with poor performance records are frequently sent to low income areas that are seen as less desirable in terms of employment. The result is an inferior education for students in these areas.

Two teachers unions, the California Federation of Teachers and the California Teachers Association have both declared vehement disapproval of the litigation, stating that it demonizes teachers and is not aimed at actually correcting any of the problems that are faced by California schools. Should the lawsuit succeed, the unions say that the state may have problems attracting and retaining well qualified teachers.

Defendants have tried on three occasions to have the lawsuit dismissed. These efforts have failed, and with the case now in the hands of a judge, it will be some time before it is known whether or not this lawsuit will have implications for teachers in California and elsewhere.

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January 24, 2014

Memphis Teacher Locks Five Year Old Student in Closet

A Memphis, Tennessee kindergarten teacher is in hot water after locking a student in the classroom closet, and then forgetting about her.

Grades%20on%20a%20chalkboard%2033883975-001.jpgThe five year old, who says she was put in the closet because she "was playing too much" was left in the closet for more than an hour after the teacher, Kristin Ohsfeldt, went home sick. The substitute teacher who filled in for Ohsfeldt discovered the scared, shivering Akeelah Joseph, and then informed the elementary school principal of the incident.

The principal contacted police and the student's mother. Although police have looked in to the incident, they have yet to file any charges. Wanda Joseph, Akeelah's mother, arrived at the school shortly after being informed of what had occurred. Apparently, Akeelah has asthma, and the possibility that she could have suffered an attack while alone in the closet added to the mother's outrage.

The district has suspended the teacher while the incident is being investigated. According to other students in the class, Ohsfeldt was generally considered to be a "nice" teacher, but this was not the first time a student had been placed in the locked closet. A grandmother whose grandchild is in the same kindergarten class as Joseph says that the closet is meant to be a time out place. Ohsfeldt typically provided children with a reading book or beads to count while they are in the closet. However, parents do not seem to have been made generally aware of the practice.

For now, the principal will be conducting an interview with Ohsfeldt to gain her perspective on the incident. The results of this interview will be forwarded to the Board of Education, which will likely have final say as to whether or not Ohsfeldt will be terminated. The police investigation is still pending, and the state's Department of Child Services is also looking into the matter. While no lawsuit has yet been filed by Joseph's mother, it seems almost inevitable that at least the teacher and the school district will eventually become embroiled in related court proceedings.

January 16, 2014

Colorado Charter School Principal Fired After Hand Stamping Protest

The principal of a Colorado charter school has been terminated after her protest against a cafeteria hand stamping policy. Noelle Roni spent eight years as the principal of Peak to Peak Elementary School before being fired on November 1, 2013.

School%20lunch%2033495353-001.jpgIn September of 2013, Roni learned that cafeteria workers were stamping the hands of children whose lunch accounts did not have sufficient funds to purchase a meal. The children were offered a cheese sandwich, but most were humiliated and embarrassed by the hand stamp. Roni was outraged, thinking that the practice made it seem as if "they had done something wrong," and immediately tried to dismantle the practice.

Roni asked the school's food services manager to discontinue the hand stamping. When this didn't work, she arranged a meeting with the food services manager and school leaders to discuss the situation. It was agreed that the hand stamping would stop, but the food services manager promptly resigned.

Despite the agreement to end the practice, Roni was soon receiving complaints from grandparents and staff members who said that students' hands were still being stamped. Meanwhile, Kelly Reeser, the school's executive director of education, was demanding that Roni take responsibility for the exit of the food services manager. Roni refused, prompting Reeser to write a disciplinary letter that referenced Roni's "unprofessional conduct."

Roni was fired shortly afterward, a move she feels is retaliatory for her stance against the hand stamping practice. Moreover, Roni's attorney asserts that her ouster was not completed in line with the school's bylaws. These require that the principal be replaced after a public vote by the school board rather than by an administrator taking sole action.

In fact, two school board members are now facing dismissal in the wake of the firing. Parents and concerned citizens have formed an advocacy group that outspokenly disagrees with Roni's termination, and the way it was handled. The resultant media frenzy and distraction from the primary work of the school shows that no employer can afford to terminate an employee without due process and observing the bylaws and agreements that govern such matters.

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