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When an individual or a company obtains a trademark registration in the U.S., they are granted certain rights and protections. If they discover that another party is using a mark that is the same as or confusingly similar to their registered trademark, then they have a right to bring legal action against the alleged infringer. This concept is at the heart of a lawsuit against well-known outdoor outfitter company L.L. Bean.

Trademarks-47837347-001A good trademark acts as a source indicator for the products it covers. However, what happens when two companies in the same industry decide to adopt similar marks? Consumers may have difficulty differentiating the offerings of one company from those of its competitor. The result can mean lost sales and a tarnished reputation if the products are not as good as those of the competition.

Utah-based outdoor and mountaineering gear manufacturer Alfwear, which uses the KÜHL trademark as their brand name for outdoor clothing, brought the lawsuit against L.L. Bean based on their registration of “The Outsider” mark. The mark is registered for “rugged outdoor clothing, namely, belts, bottoms, hats, jackets, pants, shirts, shorts, T-shirts, tops,” and has been in use since June 2015.

Recently, L.L. Bean launched a marketing campaign with the tagline “Be an Outsider.” The company even filed a trademark application to register the mark “Be an Outsider” in June 2017. The phrase is being used in various advertisements across the country.

The lawsuit from Alfwear argues that these marks are too confusingly similar. Moreover, Alfwear believes that L.L. Bean deliberately choose their “Be an Outsider” phrase in an attempt to mislead, confuse or deceive consumers.

Among other relief, Alfwear is asking that L.L. Bean be ordered to stop using the phrase “Be an Outsider” altogether. The company is seeking damages for lost profits as a result of consumer confusion.

L.L. Bean has not publicly commented on the lawsuit, but it is natural to assume that they will be fighting against Alfwear’s claims. Intellectual property is one of a company’s most valuable assets, and protecting it with the help of a California business attorney is imperative.

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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 welcome 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

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Most companies have websites today. In fact, there are few business owners who would consider operating without one. That is because consumers are placing increasing reliance as websites to serve as proxies for brick-and-mortar locations. They may expect to shop, procure coupons, order photographic prints or even refill prescriptions from a website that is connected to a retail location.

ADA-138029727-001Everyone appreciates the convenience of being able to take care of a few errands online. However, not every company has fully considered whether or not their website is equally accessible to all users. That problem is at the heart of a recent lawsuit in Florida in which a legally blind man prevailed over well-known grocery chain Winn-Dixie.

Juan Carlos Gill liked shopping at Winn-Dixie because of its affordable pricing and convenient locations. An ad on television alerted him to the fact that Winn-Dixie’s website provided the ability to get digital coupons and refill prescriptions. When he tried to take advantage of these conveniences using the enhanced online software that allows a sight-challenged person to use the Internet with ease, Gil discovered that the Winn-Dixie website was incompatible. Try as he might, he could not avail himself of the useful services on the website that were readily available to consumers who were not sight impaired.

Gil sued Winn-Dixie for violations of the Americans with Disabilities Act, or ADA. Eventually, a two-day bench trial was held with Judge Robert N. Scola, Jr. presiding. Judge Scola ultimately sided with the plaintiff based on what he says is the company’s violation of Title III of the ADA. A witness for Winn-Dixie had testified that the company was in the midst of establishing its website’s ADA policy, and that they had set aside $250,000 for the task. An expert witness for Gil argued that his firm could have made the conversions for as little as $37,000. What’s more, relatively little time would be necessary to make the website accessible to the vision impaired.

Winn-Dixie might appeal this decision, but it is a timely reminder that all company websites should be reviewed for ADA compliance.

One more note of interest: Late last month Gil filed another similar lawsuit. In his lawsuit Gil is asking a federal court to force the owners of Germain Arena in Florida, Gale Force Sports and Entertainment, to make its website accessible to blind internet users.

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How well are anti-bullying policies being implemented in America’s schools? That question is at the heart of a case against Nevada’s Clark County School District. The parents who brought the case say that not only were they not informed about the bullying their sons suffered, but also that school officials did little to investigate or correct the situation.

schoolbullyingMothers Mary Bryan and Aimee Hairr had the assistance of the ACLU when they brought their lawsuit against the district. Their complaint detailed a horrific six months in 2011 during which both of their sons were relentlessly bullied by other students at Greenspun Junior High. According to the plaintiffs, the boys were “physically assaulted, sexually assaulted, harassed, bullied, [and] sexually discriminated against.”

Hairr says that she had no idea what was happening to her son. She knew that he was becoming increasingly withdrawn, wanting to spend time alone in his room rather than with his family. Bryan’s son began being bullied when he stood up for his friend. It was Bryan who eventually overheard the two boys talking about the abuse; neither child told the parents what had been happening to them.

The school also did not disclose the ongoing problem. “We all were in the blind,” said Hairr. Bryan said she would have been satisfied if administrators had been willing to talk to them about the situation before it turned into a lawsuit.

Now, a judge has ruled that the school district must pay $200,000 to each of the families affected by the bullying. Judge Nancy Allf argued in her decision that the school district had failed to protect the boys’ right to due process under the 14th Amendment.

The district may appeal, but it seems as though this case is already changing things. The district’s bullying policy is undergoing changes to make it more effective. However, Bryan and Hairr say that the changes will make little difference unless the district ensures that staff members comply with the policy.

Any anti-bullying policy is only good as far as it is implemented. Proper training and documentation can help districts to avoid lawsuits.

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Most company executives are aware of the FMLA benefits due to expectant mothers who work at their firm. Perhaps they even provide those mothers with extra benefits, like a few weeks of paid leave just before or after the birth. While mothers certainly appreciate these benefits, it pays to be aware that new fathers may want and even be entitled to similar benefits. Failing to provide gender-neutral parental leave benefits may provide employees with the basis for a lawsuit.

EEOC_cooltext396845518This is the situation in which cosmetics company Estée Lauder finds itself. The EEOC recently filed a lawsuit against the company because it does not offer equal parental care leave to male and female employees. A pregnant female worker is eligible for as many as six weeks of paid leave and a flexible back-to-work benefit that may include shortened hours and the ability to work from home. Male employees receive just two weeks of paid leave and have no option to take advantage of the flexible back-to-work benefit.

The EEOC’s complaint says that the policy violates the Equal Pay Act and Title VII of the Civil Rights Act. Under these laws and others, the federal government requires that companies provide equal benefits and pay for the same work. This additionally means that these federal laws are gender neutral. In other words, both men and women are entitled to equal protection.

This is the second such lawsuit to be filed in recent memory. A J.P. Morgan Chase fraud investigator sued his employer because he was not offered the same parental-leave benefits as a female employee would receive. This earlier suit is still pending.

Employers are not legally required to provide paid parental leave for female or male workers. However, they are required to abide by federal laws like the FMLA that protect workers who want to take time to bond with their newborn child. Offering additional, paid-leave benefits for new parents can be a valuable perk that will attract outstanding talent to your firm. Nonetheless, it is critical to ensure that these benefits are offered on a gender-neutral basis to avoid lawsuits.

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Labor Day is upon us. Summer is unofficially over. Many kids have started school and the rest will start shortly.

About Labor Day

Happy%20Labor%20Day%20%2064937021-001.jpgLabor Day is always celebrated on the first Monday of September. Americans have been celebrating Labor Day since the 1880s, and today it is an official federal holiday.

It is the day Americans celebrate their achievements in work, which the US Department of Labor says has contributed to prosperity and well-being of America as a whole.

Some Interesting Labor Day Facts

  • This year, more than 35 million Americans will travel over Labor Day weekend.
  • It is estimated that over 350,000 of them will choose Las Vegas as a destination.
  • President Cleveland made Labor Day and official US holiday in 1894.
  • Labor Day gas prices continue to be low.
  • Labor Day marks the end of hot dog season (it starts on Memorial Day), when Americans consume seven billion hot dogs; 818 per second!

Take this weekend to celebrate the fruits of your labors… wear white, enjoy a bar-b-que, eat some hot dogs and whatever you do, stay safe and have fun.

We are glad to have you as part of the Sylvester, Oppenheim & Linde team!

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Recently, California’s Department of Fair Employment and Housing, or DFEH, issued a revised “Workplace Harassment Guide for California Employers.” This essential publication should form the basis of every organization’s anti-harassment and retaliation policies. With the guidance of a qualified California employment attorney, most companies will be able to protect themselves from violating the guidelines described in the publication.

https://www.californiabusinesslitigation.com/wp-content/uploads/sites/283/2016/05/boy.girl_.-equality.jpgThe Guide is particularly useful to employers because it clearly describes the necessary elements of any anti-harassment program in California. Employers are recommended to develop a written policy that is given to all employees and is discussed at least once a year if not more often at company meetings. The Guide also offers counsel on how crucial it is for members of management to model appropriate behavior and responses to harassment complaints. Training for managers and supervisors similarly is recommended, as well as education for personnel who will be charged with handling complaints.

One of the most important tenets espoused by the publication is the need for a proper reporting system, and a means of ensuring that every report is treated as a high-priority item. This makes it possible for the employer to determine whether or not a full, formal investigation is required. One of the new Guide’s more useful sections educates managers and supervisors about how to investigate a claim. A prompt, thorough and impartial investigation is frequently able to head off more serious problems like harassment and retaliation lawsuits.

DFEH’s revised Guide is essential reading for every employer in California. Its plain language and good coverage of relevant points make it the perfect resource for an anti-harassment and retaliation policy. A skilled California employment lawyer can help any company owner or executive put the finishing polish on the organization’s program. Too many companies make the mistake of not creating a written policy until it is too late.

Executives who want to improve the chances that their company will not become embroiled in costly, time-consuming litigation will want to discuss the Guide and how it can be used to craft an anti-harassment program specifically for their company with a qualified attorney.

The guide is only 9 pages long. If after reading it you have any employment law questions, feel free to contact me, Richard Oppenheim. I may be reached at 818-461-8500 or by using the “Contact Us” box in the right column.

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A robust network can help to open the door to new professional opportunities. Increasingly, professional networks are being created and maintained in a virtual environment. While it is becoming more common for colleagues and former co-workers to connect to each other via social media, it is vital for employers and employees to understand how various employment agreements that they are a party to may affect their interactions.

Scales-of-Justice-Digital-94824052-001This concept is at the heart of a recent case in Illinois. A branch manager for Bankers Life & Casualty Co. named Gelineau left his employment to accept a position with a competitor called American Senior Benefits, LLC. After Gelineau began working with his new employer, he sent LinkedIn invitations to three of his former co-workers at the Warwick, Rhode Island office of Bankers Life. The trouble is that Gelineau had signed a non-solicitation agreement with his former employer. As is common with these agreements, Gelineau had promised not to solicit other Bankers Life employees to seek employment with other companies.

Bankers Life sued American Senior because they believed that Gelineau had violated his non-solicitation agreement. However, the court did not agree. The judge ruled that the LinkedIn emails were “generic” and “did not contain any discussion of Bankers Life.” Moreover, the email did not contain a “solicitation to leave their place of employment.” Instead, the email was merely intended to provide an opportunity for the former co-workers to keep their professional network as robust as possible.

According to the court, if Gelineau had included some kind of hint or suggestion that the Bankers Life employees should leave their current place of employment in favor of American Senior, then the outcome may have been different. Bankers Life was concerned that a listing of open positions at American Senior was included in Gelineau’s LinkedIn home page. Nonetheless, the court did not feel that Gelineau could be held responsible for what visitors to his LinkedIn page did once they were there.

Non-solicitation agreements are standard in many industries. With the changing communication landscape, it’s important to recognize what these agreements do and do not cover.

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The Equal Employment Opportunity Commission (EEOC) has announced a lawsuit against Big 5, which is one of the largest sports retailers in the U.S. A black employee named Robert Sanders is suing his employer over ongoing racial harassment. Sanders charges that upper management in the company failed to act even after he repeatedly reported the abuse. This story is a reminder to all employers about the necessity of investigating every harassment complaint with the utmost speed.

Retaliation-32004699-001Robert Sanders was the only black employee at Big 5’s store on Whidbey Island, Washington. As a part of the management training program, he expected to have an opportunity to learn new skills that would help him to embark on a new career. What he claims to have found instead was a racially charged atmosphere that had his coworkers referring to him with slurs like “King Kong,” “boy” and “spook.” Another trainee allegedly said that Sanders had the “face of a janitor.”

Sanders took his story to Big 5’s upper management, but he says that they did nothing to investigate his claims. Tensions reportedly grew worse in the manager training program. Sanders took multiple leaves as he tried to cope with the stress. An assistant manager allegedly told him, “We will hang you, we will seriously lynch you if you call in again this week.”

Sanders says that the behavior didn’t stop, nor did upper management offer to help in any way even after repeated reports. Eventually, Sanders took his complaint to the EEOC, which offered to act on his behalf. The EEOC pointed out to Big 5 that the behavior Sanders had been subjected to was illegal under Title VII of the Civil Rights Act of 1964. Furthermore, Sanders says that his employer retaliated against him, denying him breaks, unreasonably increasing his workload and disciplining him for things he did not do.

Big 5 and the EEOC failed to come to an agreement at the negotiation stage, which led to the filing of the lawsuit. This example demonstrates once again why employers must take swift and immediate action to investigate all harassment claims.

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Luxury retailer Burberry has agreed to a $2.54 million settlement with employees. The workers include retail store and warehouse employees in New York. Their class action lawsuit claimed that they were forced to put in extra hours without pay. This expensive lesson serves as a reminder to all employers that they need to be aware of wage and hour laws and related practices.

Timeclock-45269690-001Burberry employees filed the lawsuit in December 2015 after they say that they were routinely forced to work off the clock. Sometimes, the duties were performed before or after shifts, with employees filling out necessary paperwork or cleaning the store. On other occasions, employees were told that they would need to work through their lunch hour. Holiday seasons were particularly bad. Sales associates involved in the lawsuit claim that they frequently worked three to six extra hours a day without being paid for their time.

Like many similar cases, legal experts familiar with this lawsuit note that they do not believe that executive management at Burberry was directing lower level management to violate wage and hour laws. Instead, they believe that the lower level managers were simply trying to cover the needs of the organization without fully understanding the consequences of their actions or that they were violating the law.

Burberry has now agreed to a settlement that should put approximately $2,500 into the pockets of the 643 workers who were involved in the lawsuit. The $2,500 per worker is after attorneys’ fees and costs. For a big-name, luxury brand like Burberry, $2.54 million isn’t necessarily a devastating amount of money to have to redirect for a lawsuit settlement. Lawyers for the company likely made a wise decision when they agreed to a settlement that kept them outside of the courtroom where the outcome may have been a great deal more expensive, especially with court costs and attorney fees. Still, it would have been better if the situation had not occurred in the first place.

It is vital for companies to work closely with employment law attorneys who are looking out for their best interests. This is the most reliable method for avoiding wage and hour lawsuits.