Archive for the 'Lawyers' CategoryPage 2 of 48

Trademark Name: Can Anyone Be a Kardashian?

In ridiculous but entertaining trademark news, last month the Kardashians filed documents in court trying to block Blac Chyna (real name Angela Renee) from filing a trademark on “Angela Renee Kardashian” as a brand name for her makeup line Lashed.  Ms. Renee is the significant other of Rob Kardashian–the brother of the trio of sisters–and first child.  The two have been discussing getting married, so she may well simply be trying to protect her future name but jumped the gun.

However, the Kardashian sisters’ filings vehemently opposed Ms. Renee receiving this trademark, alleging that they would suffer irreparable injury to their reputation and goodwill should the mark be allowed to move forward.  They further stated that they own and control the rights to the Kardashian brand and its associated marks–having invested a substantial amount of time and money into the name Kardashian.  What’s more, they argued that the public associates the name Kardashian strongly with the three sisters.  This makes sense, because a trademark is designed to distinguish a brand and is damaged where a similar mark may confuse the public as to the source or sponsorship of goods–a concept usually known as trademark infringement.

Understanding the Kardashian’s Claim

Kardashian Family TrademarkThe Kardashians are also not wrong about their assertions, they own trademarks on their name, are extremely famous and have all made businesses around their names–Khloemoney Inc., 2Die4Kourt, and Kimsaprincess Inc.  However, the initial opposition turned out to be a mistake and the sisters have since said that they will try to privately work out the details of using the Kardashian name with Ms. Renee.  Apparently, the lawyers for their businesses are in the practice of moving quickly to block any marks that may infringe on the Kardashian brand.

This is no surprise, protecting your trademark often necessitates vigilance and swift action.  Filing for a trademark is fairly easy–you simply file with the United States Patent and Trademark Office, pay a fee, and you’ll generally have a ruling on your mark in about half a year.  The majority of applications are approved, especially when the applicant is assisted by a trademark attorney.  Once somebody in the trademark office gives a mark the stamp of approval,  it is published that the mark has been approved there is a short 30-day period to file a notice of opposition to the mark before it takes effect.  An opposition notice is much less formal, and much cheaper, than bringing a suit to cancel a mark once it is already in effect–which you can do within five years of a trademark being granted.  Thus, it is often preferable to hire an attorney to keep an eye on trademarks being filed which might infringe your own mark and quickly respond. Generally, an opposition or cancellation action is brought where the mark is either invalid on its face (something that can happen for quite a number of reasons such as being so generic as to not serve to identify the brand) or where the mark damages the person bringing the action–usually by confusing the public.

Thus, it seems quite reasonable for the Kardashians’ lawyers to act as they did.  The Kardashian name is very well known and almost exclusively associated with the sisters’ family.  They have built up the name as a mark and most of the public think of them and their brands when they hear the word “Kardashian.”  However, the situation becomes a bit more complicated because the trademarks sought are a surname–a situation where special rules apply.  So how can you apply for a trademark on your own name or the names of others?

Name Calling: Trademarking First and Last Names

In order for a person’s name to receive a trademark, it has to have already become so distinctive in the eyes of the public.  So much so that hearing the name makes the average person think of the products or services offered by the person who’s name they’ve heard.  This is often too high of a bar for the average Jane or Joe off the street.  However, it’s simple enough to achieve for celebrities.  Thus, it’s fairly common for celebrities and star athletes to trademark their own names along with their personal brands–just like the Kardashian’s did.  Lebron James, Arnold Schwarzenegger and the King himself–Elvis Presley–have all done so in the past. This means that you may not be able to file a trademark on your own name if you share it with another particularly famous person–a situation most would consider fairly odd–and in fact it may be unlikely that you could receive trademark protection on your own name even if you wanted to.  However, many a businessman has made their name so famous as to receive protection from a trademark.  Some surnames have become such famous trademarks that you barely even consider that they were once the names of an individual–McDonalds probably being the most famous example.

The restriction also makes sense when you think about it.  Trademark law is designed to protect the public from confusion as to the source of a good by providing a protected indicator of the source of a good.  If nobody knows who you are, then your name doesn’t serve as a particularly good indicator for the average member of the public.

Applying for such a mark also carries its own special set of requirements, apart from those described above and those required by any other trademark applications.  When attempting to trademark somebody else’s name–whether first name, last name, or even a well-known nickname–it is required that you receive their written consent so long as they are living.  Even if they are dead, there are a number of issues with using a person’s name if they were famous in life–an issue of state by state right of publicity law which is its own can of worms too complicated to address in this article.  When filing a trademark on your own name, your consent is simply presumed for obvious reasons.

On the flip side of this, just because somebody else is trying to trademark your name you will not necessarily be able to stop them just because it is your name.  Unless your name is well-known enough, as discussed above, and famous enough in the same field as the mark you are challenging you are unlikely to get much traction. 

Even Though It’s Over, This Could Be an Ongoing Problem

So, if Blac Chyna’s trademark were not being resolved in private by the Kardashian sisters and Ms. Renee, would she succeed against the might of the Kardashian mark?  It’s hard to say with so little information before us.  However, while she may have the Kardashian name eventually, she certainly did not have it at the time she applied for her mark.  What’s more, even if she obtained written consent from her fiancé Robert Kardashian, it is unlikely that the public at large associates her products with the Kardashian brand.  Thus, if the sisters don’t want Ms. Renee to use their name on her products, they likely could dash her hopes–barring her from using the family name in business. 

Can Too Much Caffeine Lead to a DUI?

Has it come to this?  At least 68 million Americans drink coffee every single day.  If those staggering numbers are any indication of the number of people that are consuming caffeine on a daily basis, consider the fact that that number is for coffee consumption and doesn’t even include soda.  Does that mean all of us consuming caffeine need to worry about getting a DUI?

A California man, Joseph Schwab, was pulled over on suspicion of driving under the influence back in 2015.  Schwab was given a breathalyzer test, which he passed with flying colors.  Although the breathalyzer showed 0.00% blood alcohol level, Schwab had his blood taken for a toxicology test after being taken to county jail.  Results, again, came back 100% in favor of Schwab.

Charges weren’t initially filed against Schwab, but ten months later misdemeanor driving under the influence of a drug charges were filed.  A second set of test results sent from an outside testing facility showed caffeine was the sole substance in Schwab’s blood.

Chief Deputy District Attorney, Sharon Henry, for Solano County stated, “the charge of driving under the influence is not based upon the presence of caffeine in his system.”  Schwab’s attorney, Stacey Barrett, however, stated she was not provided with any evidence supporting a theory of any other substance within Schwab’s system.  Barrett subsequently filed a motion to dismiss the charges against Schwabb.

Can Caffeine Consumption Really Get You a DUI?

Maybe, but it’s probably not really very likely.  Under California law, a drug is any substance, illegal or legal, that isn’t alcohol that might “impair, to an appreciable degree” a driver’s capabilities behind the wheel to drive like a sober person.  Were you able to drive with caution?  Was your driving that of a sober person of ordinary prudence under similar circumstances?

Caffeine works by stimulating the central nervous system, the heart, muscles, and the centers that control blood pressure.  Theoretically, if enough caffeine is consumed, then it’s possible it could have effects that could impair a driver’s capabilities to drive safely.  Typically, though, side effects of consuming caffeine have much smaller effects such as stomach aches and insomnia.

How, Then, Can Schwab Be Charged?

According to the District Attorney’s office, the State decided to go ahead & charge Schwab because drug tests don’t catch every drug.  The State was convinced that because Schwab was driving so erratically, he must have been on something.  Remember, though, that since this was a criminal charge brought against Schwab, the State has to prove beyond a reasonable doubt that he was driving under the influence of drugs.

Even though caffeine is a substance that can affect the nervous system, brain, or muscles, all things that define a drug under the applicable law, a prosecutor would be hard-pressed to prove to a jury beyond a reasonable doubt that the consumption of caffeine, alone, inhibited Schwab’s abilities to drive enough to pose any danger.  Observations of an arresting officer can be relied upon heavily, but it’s not necessarily enough.

Under California law, driving erratically isn’t necessarily conclusive enough to prove driving under the influence—it’s only a factor a jury can take into consideration.  An arresting officer can testify to 1) the unsafe manner in which you drove, 2) your physical appearance, and 3) your performance on a field sobriety test.  According to the officer, Schwab cut her off and was driving erratically.  In Schwab’s case, this would have been the only evidence, at least that’s been made public, that the State had to go on since blood tests came back negative.

These are the likely reasons the District Attorney’s office conceded and just filed their own motion to dismiss the charges against Schwab, despite the fact they claimed forensic lab experts stated it was “highly likely the defendant was under the influence of a drug.”

 

Can You Get Sued for Your Critical Yelp Review?

In a world where fast-food chains get blamed for customers biting off too big of pieces of chicken and coffee chains get sued for for under filling their lattes, it shouldn’t come as a surprise when someone gets sued for leaving a bad yelp review.  Yet, somehow… it still does.

Lan Cai, a 20-year-old nursing student, was seriously injured in a car accident.  Driving home from her waitressing shift late one night, she was struck by a drunk driver, ultimately leaving her with two broken bones in her lower back.  With the high costs of medical bills, Cai understandably critical yelp reviewsought out legal help to prove her damages.

Cai hired the Texas law firm of Tuan A. Khuu, who she claims was extremely unprofessional.  After writing about her experience with the firm on her Facebook page and via a Yelp review, Cai received cease and desist letter from Keith Nguyen, a lawyer at the Khuu firm, threatening suit if she didn’t remove her posts.  Cai refused and Nguyen proceeded with his lawsuit demanding close to $200,000.

What Did the Firm Sue for?

Defamation, libel per se, defamation per se, and injunctive relief.  The judge wasn’t buying it, though, and dismissed the case, ordering the Khuu firm to pay $26,831.55 in attorney’s fees.  The firm’s actions backfired and they have, unsurprisingly, received even more negative attention than they had to begin with.

This isn’t the first time a case like this has been brought before a court.  Earlier this year, a pet sitting business sued a Texas couple for up to 1 million for leaving a one-star review on Yelp.  What did the couple complain about on the review that was so harrowing to the pet sitting company?  Their fish had been overfed.

What’s to Stop Companies from Suing?

Well, it depends on where you live because there aren’t any federal protections, unless you count the First Amendment (which you should).  Let’s rephrase that to there aren’t any federal protections that address these specific issues surrounding negative reviews of online.

These suits aren’t uncommon and they fall under a classic SLAPP type lawsuit.  SLAPP lawsuits (Strategic Lawsuit Against Public Participation) , which are illegal in many jurisdictions, are intended to censor or silence critics by burdening them with the cost of legal defense in the hopes they comply with whatever it is the plaintiff wants them to do (or not do).

Sometimes you’ll also see companies trying to sue their customers/clients for leaving negative reviews because the client has signed some sort of non-disparagement clause.  What’s that, you ask?  Basically, it’s a clause in a contract (usually in the fine print) that prohibits the signor from taking any action that might negatively impact the business.

California has a law that’s been notoriously nicknamed the “Yelp Bill” because it renders these types of clauses null and void.  Others, like Texas, have laws that allow SLAPP lawsuits to be thrown out at early stages of litigation.  Remember the Texas couple with the fish?  They signed a non-disparagement clause.  Luckily for the couple, the case was dismissed, but I doubt it will be the last of its kind unless some kind of federal legislation is passed.

Negative Reviews May Prevail Depending On California Supreme Court Decision

The California Supreme Court is set to hear an appeal brought by Yelp involving a similar case similar to Cai’s.  In that case, a lower court ordered Yelp to remove a negative review off their website because a former client of a law firm left statements on the popular website that were found to be legally defamatory.

Yelp argues a favorable outcome for the law firm would open up the flood gates for businesses to force the company to remove critical reviews and, thus, infringing on free speech rights.  The law firm, on the other hand, argues their case is unique in that they’re only asking the company to remove the review that contained defamatory statements.

In theory, yes, defamatory statements made on the review site pose a different set of problems, but even still, forcing Yelp to remove the review will open up a can of worms.

If not, Hopefully Congress to the Rescue

How many of you have ever left a Yelp review?  How many of you have ever relied on one of those Yelp reviews when choosing a company to give business to?  Even something as simple as deciding what restaurant to go for dinner?

With big companies like Twitter, Facebook, Microsoft, and Yelp advocating for better consumer protection, Congress has started to listen.  Currently, Congress is trying to pass legislation through the House that would ensure customers are protected from any legal repercussions when leaving negative reviews online.

Last year, a similar bill was passed through the Senate and, although the two bills need to be merged before they can be officially signed into law by the president, both bills accomplish the same thing.  Business contracts for goods or services will be restricted from using non-disparagement clauses, or anything like it, that would prohibit negative reviews.

Who is Responsible for the 36 Victims in Deadly Oakland Fire?

With 36 confirmed dead in an Oakland warehouse fire, many grieving families want answers as to what, and who, is responsible for the deadly fire that trapped so many during an electric dance party in a building with no smoke alarms or sprinkler systems.

The former warehouse was a dilapidated two-story structure that, from the outside, appeared to be abandoned because of the disrepair it was in.  In fact, a citation was issued to the owner sometime in November for hazardous trash and debris outside of the building, but city and state officials have also fielded numerous complaints over the years about dangerous conditions, drugs, all-night dance parties, neglected children, trash, thefts and squabbles at the warehouse.  Zoning officials were also investigating complaints of illegal construction on the property, as well as illegal residential use, but neither were confirmed by inspectors.

Witnesses have described the interior as a maze of man-made studios, workshops and residences with couches, pianos, beds, microwaves, refrigerators, hot plates, music equipment, a man-made staircase made of wooden pallets connecting the ground floor to the second story, and even RVs.  Power sources have been described as just numerous extension cords plugged into each other.

With all the speculation surrounding ignored building codes, dangerous conditions and what the building was actually being used for, it begs the question about who’s responsible.  Is it the owner of the building?  The manager?  The host of the party?  Or someone else?

These Types of Buildings Aren’t Uncommon in Bay Area

With skyrocket rent in the Bay area, these little communities aren’t uncommon.  Derek Ion Almena had signed a lease for the property and apparently subleased space to others in what’s become known as the “Ghost Ship”.  According to the Today show, Almena said he opened the warehouse to artists who couldn’t pay the rent because their dreams were “…bigger than your pocketbook.”

The warehouse owner’s, Chor N. Ng, daughter, Eva Ng, however, told the Los Angeles Times that the warehouse was leased as studio space for an art collective and not as a dwelling.  This will definitely make a difference because zoning standards are stricter for residential uses.  Almena insisted the building was leased to “city standards supposedly”, but the warehouse was permitted only as a one-story warehouse, not for entertainment or residential use.

An official report about the cause of the fire hasn’t been released yet, but there has been speculation that it started with a
refrigerator.

Everyone is Looking for Someone to Blame

What kind of claims should we expect to see here?  Wrongful death suits to start, which would likely name Ng and Almena for liability, but there’s a whole slew of people that could be put up to the plate.  Keep in mind that cioakland firevil tort cases like this only require a preponderance of the evidence, which is a much easier and lower standard to prove than the beyond a reasonable doubt standard in a criminal case.

Let’s take a closer look at potential targets that could get sued for liability.

  • The owner, Chor N. Ng. The first obvious choice for liability, even despite the fact that the owner of the building may have been blind to the fact that people were living within the building.  The owner will still have some liability, though, as landlords have a general responsibility to know what’s going on on their property.
  • The manager, Derek Ion Almena. The second obvious choice.  Did the lease allow him to sublease?  If not, this is definitely an argument Ng could use in her favor.  Landlord tenant law generally puts liability for damages on who is at fault for the fire.  Since this fire involved so many deaths, though, any action, or lack of action on behalf of the owner, that gives even a glimpse of responsibility is going to be scrutinized under a magnifying glass.
  • Promoter of the party. Who threw the electric dance party?  This may not be your first thought, but there’s likely liability here as well.  Almena’s wife and child, who lived in the building, were reportedly staying at a hotel that night, which eludes to the fact that Almena may have at least had knowledge of the party.
  • Contractors, engineers, or architects. Basically, anyone that has worked on the site throughout the years could be targets.
  • Manufacturers. Did an appliance within the building have faulty wiring that sparked or contributed to the fire?  There definitely seems to be some mitigating factors here, though, even if this is the case, especially when you consider the way witnesses described the makeshift and sloppy way power sources were hooked up.
  • The City of Oakland. However, this one seems less likely since they could assert governmental immunity and the city was already doing their part to investigate whether there was illegal use.  Even still, allegations that the warehouse has not been inspected for over 30 years could present issues for the city.

Depending on the outcome of the investigation, criminal liability could be possible for the owner and manager as well.  Arson hasn’t been ruled out yet and the local prosecutor has even said the state hasn’t ruled out the possibility of murder charges.

Nude Recordings of Minors Showering Not Lascivious Enough to Constitute Child Pornography

A Tennessee man’s sexual exploitation convictions have been overturned by the state’s highest court because his nude recordings of minors weren’t lascivious enough to be considered child pornography. Tennessee’s sexual exploitation laws are basically a reworded version of other production of child pornography laws, but unlike other states, Tennessee doesn’t consider the viewer’s intent of sexual arousal an element of the crime. Because of this distinction, a man’s recordings for his own perverse satisfaction ended up landing him a conviction for mere spying.

Thomas Whited was arrested for hiding a camera phone in the bathroom and bedroom used by his 12-year-old daughter. The phone was positioned in the bathroom to record his daughter as she prepared for a shower and after-shower bathroom activities.  The phone in the bedroom was planted just before Whited’s daughter and her 14-year-old friend entered the bedroom to change out of their bikini swimsuits into dry clothes.  The phone was eventually found by Whited’s wife, who reported her husband to the police after finding several videos of the young girls on the phone. nude recording in bathrooms

Whited was convicted of nine counts of especially aggravated sexual exploitation of a minor, one count of attempt to commit that offense, 13 counts of observation without consent, and one count of attempt to commit that offense. Whited appealed his case to the Tennessee Supreme Court, mainly on the fact that the videos didn’t include sexual activity and, because of that, couldn’t be considered sexual exploitation under the state’s statute, nor could they be considered lascivious.

If you have an image/video of a naked individual, at what point does that photo become obscene and considered child pornography?

Many Laws Require the Presence of Sexual Activity

Typically, images are considered child pornography when there is a visual depiction of sexually explicit conduct involving a minor. That’s a pretty broad definition though, so the question comes down to how sexually explicit conduct is defined.

The federal legal definition of sexually explicit conduct, in which the Tennessee court applied their own similar definition, doesn’t require images to depict sexual activity in order to be considered sexually explicit, but rather the federal code only requires a “lascivious exhibition of the genitals or pubic area of any person.”

What does lascivious exhibition even mean, then? Certainly, a word that’s meaning is, in a way, subjective. Black’s Law Dictionary defines lascivious as,

“tending to excite lust; lewd; indecent; obscene; relating to sexual impurity; tending to deprave the morals in respect to sexual relations.”

Despite the fact that what tends to excite an individual is subjective to each person, there are general ideas of what pornography looks like. In fact, Justice Potter Stewart so famously described his threshold for obscenity as not definable, but rather,

“…I know it when I see it…”

Mere Nudity Isn’t Enough

Mere nudity isn’t enough to establish lascivious exhibition of private body areas. If you have a hard time wrapping your head around this, case law has previously pointed out the example of innocent photographs of naked children in the bathtub.  How do you know it when you see it here?  It would be hard to distinguish one from the other when you’re looking at merely a naked person.

Courts developed what they called the Dost factors, which take many things into consideration when determining whether there’s lascivious exhibition, but the Tennessee Supreme Court rejected those standards and instead they looked at comparative cases and found these considerations significant in the case at hand:

  • The level and nature of the nudity in the videos,
  • The emphasis on the minor victim’s private body areas,
  • The fact that the victims were engaged in everyday activities ordinarily performed nude,
  • The defendant’s audible comments and interactions with the victims recorded on the videos, and
  • the defendants’ recorded actions depicting his voyeurism in setting up the camera.

What did the court say? The nude recordings of the daughter showering were “everyday activities ordinarily performed nude” and because the videos didn’t appear to be focused solely on the children’s private body parts, they weren’t necessarily lascivious exhibition.

Did Whited luck out on a technicality? It’s not an issue of whether the court got it wrong, but rather a question of whether Tennessee lawmakers will be redrafting their statutes to have a more inclusive definition of what constitutes child pornography.  I imagine they will after this case.  Had the Tennessee statute been inclusive of language defining sexual exploitation or pornography to include an element of intent of sexual arousal/gratification, the issue of lasciviousness would have been moot at that point.