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2011 Legal News

FRANCHISE & TRADEMARK LAW, FEDERAL CONTRACTING, EMPLOYMENT LAW – NJ, LITIGATION, CORPORATE LAW – PA:

  1. Trademarks & Franchise Law – In a significant policy change, Microsoft (the operator of Bing & web search partner with Yahoo Co.) will now allow marketers to use other companies’ trade/servicemarks to trigger search ads. Google has allowed this practice for a number of years, whereas Microsoft, until now, continued to investigate complaints about the use of trademarks in web searches as keywords. Google decided to follow this path at least in part after it prevailed in litigation alleging that the practice infringed trademarks (notably, in lawsuits brought by GEICO and then Rosetta Stone v. Google). Essentially the thinking is that many web searchers use trademarks not to cause source “confusion” (essentially the legal standard for infringement), but simply to search for certain types of goods or services. This also seems a wise move given the growth of international trade/servicemark filings.

 

  1. Federal Contracting - In recent months, the Office of Federal Contract Compliance Programs of the US Department of Labor (“OFCCP”) has indicated that it will vigorously pursue government contractors who are not in compliance with the affirmative action and nondiscrimination requirements of Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Veterans’ Readjustment Assistance Act. According to published reports, OFCCP plans to continue its practice of issuing Corporate Scheduling Announcement Letters. These letters provide contractors with advance notice that their establishments may be subject to OFCCP investigations. In light of this, federal contractors receiving such letters should take advantage of any such advance notice and take steps to audit their affirmative action plans, payroll and compensation practices, and generally ensure that they are in compliance with OFCCP regulatory requirements, both at the establishments that OFCCP has officially targeted and at other locations that could become involved in OFCCP investigations.
  2. Employment Law – New Jersey – New Jersey has a new law, effective in June 1, 2011, that prohibits employers from posting want ads (in print, online or elsewhere) that say, in essence, unemployed persons need not apply. The law bars NJ employers from publishing or posting job listings that indicate that the job qualifications include current employment, that job-less applicants will not be considered, or that only currently employed candidates need apply. A number of “pro-business” clarifications were required by Governor Christie before he would sign the law, including that the law does not change an employer’s ability to list other legally permissible job qualifications (such as minimum education, necessary licenses, required experience, etc); also, the law specifically states that it does not apply to openings made available only to existing employees, that is, hiring “from within.”
  3. Litigation – The US Supreme Court recently overturned a California law that had allowed consumers to band together to pursue arbitrations claims via class action lawsuits. The CA law had prohibited business agreements with consumers that took away the right to form arbitration class action (large multi-party) claims. Writing for the Court, Justice Scalia said the California law was contrary to the intent of arbitrations (i.e.: the Federal Arbitration Act), which largely is to streamline legal proceedings, not make them more complex. Rulings by the US Supreme Court, of course, effect all states, and almost 20 states had laws like CA., so the ruling has national significance.
  4. Corporate Law – Pennsylvania – A “reminder” — PA’s once-a-decade decennial filing requirement is now here for all affected entities. Generally speaking, this is a required report of a business entity’s continued existence or use of certain marks. All domestic and foreign profit and nonprofit corporations, limited liability companies, limited partnerships, many (not all) limited liability partnerships, business trusts, insignias and “marks used with articles and supplies” are “affected entities” BUT only if they have not made a new or amended filing with the PA Corporations Bureau from 1/1/02 through 12/31/11. PA should be sending all affected entities notice of this filing requirement, together with the appropriate form for filing (and, of course, notice of the required fee ($70), but failure to receive such mailing from PA is not an excuse for non-filing. The filing period runs from 1/2/11 through 12/31/11. If you have an “affected entity” and fail to file, you LOSE the exclusive right to your entity name as of 1/2/12 (or, in the case or registered marks or insignias, you lose their PA registration). (Note too: fictitious names are not required to make this PA decennial filing, but, on the other hand, fictitious name filings, as well name PA name reservations, names searches, etc. are not qualifying “new or amended” filings.)

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