On June 21, 2018, the U.S. Supreme Court ruled in Wayfair v. South Dakota that internet and catalogue retailers can be required to collect sales taxes from customers in states where they have no physical presence. In plain English, in most situations, no more tax-free shopping on the internet. Buyers have always technically been required to pay a use tax to their state if no sales tax was collected by the seller. This decision overrules two older decisions that allowed retailers to avoid collecting sales tax on customers outside of its home state and outside other states where the retailer had employees, a store, a warehouse or some other physical presence. This is likely the most significant state and local tax case in 25 years and will have a profound impact on businesses who sell taxable goods or services online. Further, there are implications for mergers and acquisitions and could have a chilling effect when the potential buyer of a company realizes that the target has major sales tax exposure. Continue Reading
On July 1, 2018, all fifty states will have active data breach statutes that govern the notification process for companies that experience a data loss incident. Alabama and South Dakota both recently passed data breach laws, representing the last two states to enact data breach legislation. As with other data breach statutes, Alabama and South Dakota have imposed slightly different requirements on businesses that experience a breach event, contributing to the increasingly rich tapestry of state laws governing data breaches. Continue Reading
Motivated by the unprecedented spike in automotive fatalities in 2015, mostly caused by human error, the United States Department of Transportation (DOT), through the National Highway Traffic Safety Administration (NHTSA), has embraced self-driving cars as a means to significantly reduce motor vehicle crashes. In so doing, the DOT stands behind developing a regulatory framework which encourages the safe development, testing and deployment of automated vehicles. Because current legislation and policies have not caught up with technology, Congress and the DOT are hoping to create legislation which balances technology and car manufacturers’ freedom to test, evaluate and deploy driverless cars with ascertaining the best ways to operate and govern these vehicles on U.S. roadways.
Regardless of industry, website accessibility has become an area of focus for ADA litigation. My colleague, Jamie LaPlante, was recently interviewed by the Bristol Herald Courier regarding a filing against Highlands Union Bank in the U.S. District Court in Abingdon, Virginia, where the plaintiff is a blind man from Fairfax county. The case follows a similar fact pattern to the 2017 Florida case against Winn-Dixie where a federal judge ruled the supermarket chain failed to make its website accessible due to the site’s lack of integration with screen reader technology. The last few years have seen an increase in threats of litigation and filings of lawsuits of this nature. We thought it was worth sharing this with you; check out the full article here.
In December 2016, the United States Copyright Office introduced an online registration system and electronically generated directory to replace the office’s old paper-based system and directory for filing DMCA agent information. The office no longer accepts paper designations. To designate an agent, a service provider must register with and use the office’s online system.
While the change to an electronic directory is noteworthy, those with existing DMCA agent registrations (filed to the old, paper-based registry) must submit new DMCA agent filings before the end of 2017. Per the US Copyright Office website, any service provider that has designated an agent with the office prior to Dec. 1, 2016, in order to maintain an active designation with the office, must submit a new designation electronically using the online registration system by Dec. 31, 2017. Any designation not made through the online registration system will expire and become invalid after Dec. 31, 2017. Until then, the copyright office will maintain two directories of designated agents: the directory consisting of paper designations made pursuant to the office’s prior interim regulations which were in effect between Nov. 3, 1998, and Nov. 30, 2016 (the old directory), and the directory consisting of designations made electronically through the online registration system (the new directory). During the transition period, a compliant designation in either the old directory or the new directory will satisfy the service provider’s obligation under 17 USC § 512(c)(2) to designate an agent with the copyright office. During the transition period, to search for a service provider’s most up-to-date designation, begin by using the new directory. The old directory should only be consulted if a service provider has not yet designated an agent in the new directory. Continue Reading
Patent infringement lawsuits are rather unusual in the fashion industry in part because design patents are difficult, expensive, and slow to obtain. In an industry that is constantly evolving to keep up with consumer trends, the year+ length of time from application filing to design patent registration is a lifetime. The latest development gaining momentum in the fashion industry is a niche known as “athleisure.” This trend, as suggested by the term, is defined by clothing designed not only for hardcore workouts or athletic activity, but also to be worn in other low impact settings, such as at the workplace, school, or other casual or social settings. Athleisure apparel caters to those, typically women, who want to be comfortable but still want to be trendy.
This athleisure market feeds a growing multibillion dollar industry which increases the demand on big time players to carve out their stake with continuously innovative items.
But what is considered innovative and novel?
On Monday, June 19, 2017, the Supreme Court released a decision in a high profile trademark case rejecting the Lanham Act’s rule against disparaging trademarks as being facially invalid and unconstitutional.
The Lanham Act, since its enactment in 1946, has contained a provision stating that a trademark should not be refused registration on the principal register unless it “consists of … matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” (See 15 U.S.C. §1052). Since the enactment of the Lanham Act, courts have routinely found that the disparagement rule does not violate the First Amendment because it does not preclude actual use of the mark in commerce nor prevent the establishment of common law trademark rights, but is rather just a bar to federal registration.
Nearly 50 miles south of San Diego in Mexico lies an eleven room hotel which is currently making waves for its name, Hotel California, which is also the name of the Eagles classic single and album. The boutique hotel was originally named Hotel California at its 1950 opening but has since undergone several name changes. Ultimately the original name, Hotel California, was revived sometime after a Canadian couple bought it in 2001.
Although the Baja hotel has been around for over 60 years many of us are more familiar with Hotel California being associated with one of America’s greatest rock bands, the Eagles. Both the song and album, “Hotel California,” have arguably become legendary. The album won the 1977 Grammy Award for record of the year and is one of the best-selling albums of all time.
This week our colleagues at Employer Law Report published a post discussing the recent “Wannacry” ransomware attack. In the post, Brian Hall outlines the risks employers may face when dealing with cyber attacks and how human resource departments can help protect their organizations. Click below to read the full article.
About two decades ago, Amazon.com, Inc. revolutionized e-commerce transactions with the innovation of single click buying. Single click buying is a checkout process that enables customers to bypass the shopping cart to make an online purchase with a single click based on payment and shipping information previously provided by the customer. Amazon received U.S. Patent No. 5,960,411 (the 1-Click Patent) for this technology in 1999. Amazon also has U.S. registrations for the trademark “1-Click”. The 1-Click Patent will expire on Sept. 12, 2017 so the technology will enter the public domain and Amazon will no longer have exclusive rights. This is good news if you like to use single click buying at Amazon.com, iTunes, iPhoto, Apple App Store etc. (Apple, Inc. licensed the single click technology from Amazon) because many other companies will begin using this technology once the 1-Click Patent expires. If you have an e-commerce site, you should be preparing for the single click world where many customers will likely come to expect “frictionless transactions” everywhere including mobile applications.
The 20 year life of the 1-Click Patent has not been without controversy. Continue Reading