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Philadelphia Trademark Lawyers: The Digital Millennium Copyright Act

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Protecting Internet Service Providers from Claims of Copyright Infringement

The Digital Millennium Copyright Act 17 U.S.C. §§ 512, (“DMCA”), is a law that heightens the penalties for copyright infringement on the Internet. The DMCA provides a safe-harbor provision for internet service providers from monetary liability under the Act as long as they comply with the conditions set forth in § 512. An internet service provider is defined as

“an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received and/or a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).”

Companies like Google and Amazon are considered internet service providers because they merely provide the online services that allow third party users to sell goods. Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006) aff’d, 242 F. App’x 833 (3d Cir. 2007) and Hendrickson v. Amazon.Com, Inc., 298 F. Supp. 2d 914, 914 (C.D. Cal. 2003).

Internet service providers are protected under the Act’s safe-harbor provision as long as the provider: does not have actual knowledge of infringing content on its servers, does not receive a financial benefit directly attributable to the infringing activity if the provider has the ability to control such activity, and acts quickly to remove or disable access to infringing material after receiving notice that the material is infringing.

For more information, call our trademark lawyers in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

Philadelphia Trademark Lawyers: Disparaging Trademarks

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Recently, an all Asian-American band called The Slants made headlines because the United States Patent and Trademark Office “USPTO” denied their application for a trademark on grounds that their name was a racially disparaging term. Trademark registration is considered “government speech,” and thus is regulated.

Although American citizens have freedom of speech, and the right to exercise that privilege, the government cannot sanction disparaging language. In other words, although a band can call themselves The Slants, and more generally, anyone can use any “trademark” or name they like regardless of how disparaging it may be, the government cannot register an offensive trademark. The so-called disparagement provision of Section 2(a) of the Lanham Act prohibits registration of marks that “may disparage” any person or group.

The Slants are a Portland, Oregon based rock band founded by musician Simon Shiao Tam. Tam states that, as an Asian-American, he named the band in an effort to reclaim power from a racial slur that had been used against him his entire life. According to Tam, the band’s name also refers to “guitar slants” and the band members’ unique slant on life.

Enforcement of the Lanham Act is Unconstitutional

After the USPTO denied the application pursuant to the disparagement provision, Tam filed suit. The matter is currently pending before the United States Supreme Court. Before the case made its way to the Supreme Court, a Federal Circuit Court of Appeals determined that the disparagement provision of the Lanham Act is unconstitutional. The Circuit judges noted that regardless of their personal feelings about the trademark at issue, or any other disparaging marks, the First Amendment forbids government regulators to deny registration on grounds that it finds the speech likely to offend others. The Court went so far as to note that Tam’s role as a musician is to weigh in on cultural and political discussions about race and society that are “within the heartland” of speech protected by the First Amendment. The issue currently before the United States Supreme Court on appeal is whether the disparagement provision is facially invalid under the Free Speech Clause of the First Amendment.

A number of so-called interested parties have filed amicus briefs in this case. One brief, submitted to the Court by the Cato Institute, takes issue with the fact that the government should not get to decide what is or is not a racial slur.

One related case that may be instructive involves the registration of the NFL team named the Redskins. A District Court upheld the cancelation of the Redskins trademark on grounds that it may disparage Native Americans. The Court noted that because trademark registration is “government speech,” it is exempt from First Amendment scrutiny.

Philadelphia Trademark Lawyers at Sidkoff, Pincus & Green, P.C. Have Extensive Experience Litigating Trademarks

If you have questions about registering a trademark or protecting an existing mark, the Philadelphia intellectual property lawyers at Sidkoff, Pincus & Green can help. We have decades of combined experience in intellectual property law. With offices conveniently located in Philadelphia, we serve clients throughout Pennsylvania and South Jersey. Schedule a consultation today by calling us at 215-574-0600 or by completing our online contact form.

Philadelphia Business Lawyers: Arbitration Clauses Not Always Enforceable or Advisable

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Arbitration is an alternative to litigating in court and it may lead to a cheaper and more expedient result. It also may be favorable to both sides in certain situations, particularly when it concerns two equal parties with access to equivalent resources saving time and money for all concerned. However, arbitration is often a disadvantage when the playing field is not level,  and for that reason, it is a common tool used by big business against consumers and employees.

Recently the American multinational technology conglomerate, Cisco, tried to force a lawsuit by one of its employees into arbitration and lost in San Francisco Superior Court. An employee filed an age discrimination claim against Cisco. The company responded by stating that the employee had given up the right to sue when she signed her employment contract because it included a clause that said any disputes must be settled by binding arbitration. However, the clause about arbitration was buried within a form that was mainly about intellectual property claims – something every employee must sign in order to be able to work at Cisco.

Judge Harold Kahn ruled that in effect, Cisco had surprised the employee with the arbitration requirement by putting the language in one paragraph on page five of a seven page, single spaced document about proprietary information. Moreover, the language stated that the employee was also obligated to pay half the costs of any employment disputes that went to arbitration, which is against California regulations.

Arbitration is a Common Practice for Companies

Cisco is not the only company trying to use arbitration to its advantage. Wells Fargo is still recovering from the scandal that broke when the practice of opening multiple accounts in a customer’s name without their knowledge became public. Victims seeking justice were forced into binding arbitration by the bank. The original accounts had a clause about arbitration which the bank said also applied to any subsequent disputes. Due to the fact that most results of arbitration cases are not a matter of public record, the scale of the Wells Fargo scandal was kept under wraps for longer than it would have been in a court of law.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Defend Those Being Forced Into Arbitration

Consumers and employees need to be aware of arbitration clauses because they are extremely common. At Sidkoff, Pincus & Green, we have experience representing consumers and individuals in arbitration matters, and in court.

If you have a matter that is in arbitration, or you are concerned about signing a contract with an arbitration clause, please feel free to contact the Philadelphia business lawyers at Sidkoff, Pincus & Green, P.C.. Call us at 215-574-0600 to schedule an appointment or contact us online. We serve clients throughout Pennsylvania and New Jersey.

 

 

Philadelphia Employment Lawyers: Sexual Orientation Discrimination

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In a recent groundbreaking ruling, a Pennsylvania district court found that discrimination based on someone’s perceived sexual orientation falls under the protections of Title VII of the Civil Rights Act of 1964. The individual involved in the case was a homosexual man employed as a telemarketer by Scott Medical Health Center. The lawsuit alleged his manager made offensive and unwanted comments to him about his sexual orientation several times a week. He further claims that he was asked explicit questions and was exposed to homophobic slurs. The man claims he reported the conduct to the health center’s president, but no action was taken to stop the harassment. Ultimately, the man says that he was constructively discharged because the treatment he endured created a hostile work environment.

The defendants moved to dismiss the claim on the grounds that perceived sexual orientation was not protected under Title VII.  However, the court ruled against defendants, finding no meaningful difference existed between sexual orientation discrimination and discrimination because of sex. The court noted that sex stereotyping included assumptions about how a person’s sexuality should conform to their sex and gender. The court ultimately likened the plaintiff’s experience to that of a female employee who is told to dress more femininely, or wear make-up and jewelry in order to achieve promotion. The court cited recent decisions across the U.S. Courts that have increasingly been finding that sexual orientation is a Title VII protected trait. The court also drew from the Supreme Court opinion legalizing same-sex marriage.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Employees in Sexual Discrimination and Sexual Harassment Claims

If you have suffered an adverse employment action such as failure to hire, termination, or denial of a promotion on the grounds of your sexual orientation or because of your gender, you may have a valid discrimination claim. Philadelphia employment lawyers at Sidkoff, Pincus & Green will fight back against injustice. We seek maximum compensation for damages suffered as a result of discrimination. To learn more about how we can help you, call us at 215-574-0600 or contact us online today.

Philadelphia Whistleblower Lawyers: The False Claims Act 

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The False Claims Act is a federal law that holds people and companies liable for defrauding government programs. Pursuant to this Act, private citizens can sue those that commit fraud against the government. These cases are referred to as “qui tam” cases, because they are brought under the qui tam provision of the False Claims Act. The Act provides for treble (triple) damages, and provides whistleblowers with awards of 15 to 30 percent of the money recovered. The Department of Justice (DOJ) recently announced that 2016 was the third highest recovery year in the history of the False Claims Act.

The DOJ issued a press release stating that they obtained close to $5 billion in settlements and judgments for cases where persons or companies defrauded the federal government in 2016. More than 50 percent of these recoveries were brought under the qui tam provisions of the False Claims Act. The whistleblowers recovered a staggering $519 million in 2016 alone.

Most of the money recovered in 2016 came from the health care industry. The next common sector where recoveries were made was the financial sector, largely relating to housing and mortgage fraud. Procurement fraud, fraud associated with federal education funds, and customs fraud followed close behind.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green P.C. Counsel Clients About Whistleblower Protections

Whistleblowers may be entitled to confidentiality and protection against employer retaliation. The highly-experienced Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green can advise you of your rights, and help you determine whether you are eligible for compensation under the qui tam provisions of the False Claims Act or under other state and federal laws. To schedule a consultation, call us at 215-574-0600 or contact us online today.

 

 

Philadelphia Whistleblower Lawyers: Award for Penn State Whistleblower

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Michael McQueary, a former Penn State University assistant football coach, was recently awarded an additional $5 million by a Pennsylvania judge.  Judge Thomas Gavin of Centre County, Pennsylvania found that McQueary met the state law definition of a whistleblower.  He further found that Penn State wrongfully terminated his employment in retaliation for the whistleblowing.  The court ordered that McQueary be compensated for lost wages, reputational damage, and humiliation.  Significantly, the judge stated that had Penn State publicly recognized McQueary for stepping forward, it would have helped reduce the public shame the school caused him by firing him.

During the eight seasons he served as an assistant coach at Penn State, McQueary coached wide receivers for head coach Joe Paterno.  In 2001, he allegedly witnessed retired assistant coach Sandusky sexually assaulting a young boy.  This was ten years before the scandal was brought to light and Sandusky was charged.  In 2012, Sandusky was found guilty of molesting 10 boys.  He was sentenced to 30 to 60 years in prison.

McQueary also claimed in his lawsuit that former Penn State President Graham Spanier defamed him during a 2011 public statement.  The jury awarded McQueary $7.3 million in compensatory and punitive damages as a result of the defamation and misrepresentation.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green Fight for Employees Who Stand Up to Injustice

Under the law, a whistleblower may be a person who exposes illegal or wrongful activity.  In order to encourage people to step forward to report such activity, there are certain protections in place for whistleblowers under the law.  If you suspect that your employer has retaliated against you for reporting illegal or wrongful activity, you may be entitled to compensation under the Pennsylvania Whistleblower Law or other relevant statutes.  To discuss your situation with one of the experienced Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green, call us at 215-574-0600 or contact us online today. With offices conveniently located in Philadelphia, we represent clients throughout Pennsylvania and South Jersey.

Philadelphia Discrimination Lawyers: Report Following Lawsuit Alleging Discriminatory Behavior

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On the heels of a complaint filed against them for discrimination, Airbnb Inc. proposes several steps to end discrimination. In complaint entitled Selden v. AIRBNB, Plaintiff alleges that Airbnb unlawfully denied Plaintiff’s application for housing accommodation because of his race. In response to the complaint, Airbnb filed a motion to compel arbitration and dismiss. Although no decision has been reached thus far, in an attempt to stem negative press Airbnb will change its operating procedures to prevent discriminatory behavior in the future.

On September 8, 2016, Airbnb released a report entitled Airbnb’s Work to Fight Discrimination and Build Inclusion by Laura Murphy of the ACLU. In this report they outline their steps to eliminate racism and discrimination. These steps includes changes to methods of bookings such as removing prominence of photographs, a stronger message about Airbnb’s policy on discrimination, and making everyone who uses Airbnb affirmatively agree to Airbnb’s policy on discrimination.

For more information call our Philadelphia discrimination lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

 

Philadelphia Business Lawyers: Supreme Court to Review Bad Faith Standard for Insurers

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The Pennsylvania Supreme Court will review the issue of establishing insurer bad faith under 42 Pa.C.S. § 8371. The main question at hand is whether the factor of a “motive of self-interest or ill-will” is a discretionary one rather than a mandatory requirement in proving bad faith.

The Superior Court, in the case Rancosky v. Washington National Insurance Company, ruled it was a discretionary factor. 130 A.3d 79 (Pa. Super. Ct., 2015). The plaintiff in the case, LeAnn Rancosky, was denied benefits from her insurance carrier after she was diagnosed with ovarian cancer. The insurance policy included a waiver of premium, which stated that premium payments would not be required after the policy owner is disabled due to cancer for more than 90 days after being diagnosed. There was a dispute as to when the disability started, with Rancosky believing the disability started the day she was diagnosed and the carrier believing it was a later date. The carrier ultimately found that the insurance policy had lapsed because Rancosky had not paid her premiums. Among other claims, Rancosky instituted a claim of bad faith against the insurance carrier.

Because the legislature did not provide a definition of bad faith in the statue, there has been some confusion in the courts on how to apply it. Prior cases have found plaintiffs do not need to prove ill-will to proceed with bad faith claims. The Superior Court restated a two-part test to determine bad faith of an insurer: “that (1) the insurer did not have a reasonable basis for denying benefits under the policy, and (2) the insurer knew of or recklessly disregarded its lack of reasonable basis in denying the claim.” (at *92). The Superior Court then held that, “A ‘dishonest purpose’ or ‘motive of self-interest or ill will’ is not a third element required for a finding of bad faith,” but “may be considered in determining the second prong of the test for bad faith, i.e., whether an insurer knowingly or recklessly disregarded its lack of a reasonable basis for denying a claim.” (at *93). The Supreme Court will hear arguments to hopefully settle the issue.

For more information call our Philadelphia business lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

Philadelphia Business Litigation Lawyers: NJ Superior Court Reverses $18M Verdict in Accutane Litigation

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In July, the New Jersey Superior Court, Appellate Division overturned an $18M jury verdict against Defendant Hoffmann-La Roche Inc., the manufacturer of Accutane, a popular drug for severe cystic acne. Rossitto v. Hoffman-LaRoche Inc., 2016 N.J. Super. Unpub. 2016 WL 3943335 (N.J. App. Div. Jul. 22, 2016). Plaintiffs were Accutane users who claimed that they developed ulcerative colitis, a chronic disease of the large intestine after using the product for years and that the manufacturer failed to adequately warn about the risk of developing this condition.

 

The Appellate Court overturned the verdict and ordered a new trial after the trial court allowed Plaintiffs’ counsel to admit into evidence a change to the drug’s warning label in 2000, after Plaintiffs had stopped taking the drug, even after that evidence was initially barred earlier in the trial. The court found this mistake to be prejudicial to Defendant, because it fostered the belief that the labels previous to the 2000 label did not meet the proper standards. Furthermore, the trial court erred in restricting the number of defense expert witnesses to testify on general causation.

 

Roche has continued to win on appeal in Accutane cases. In 2014 and 2015, the Superior Court reversed a $25 million verdict and a $2.1 million verdict against the company, respectively, in similar cases. In 2010, the same court overturned a $10.5 million verdict against the company, sending the case back for retrial based on a separate evidentiary issue. Roche discontinued the sale of Accutane in 2009.  

For more information, call Philadelphia business lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

Philadelphia Employment Lawyers: Casino EEOC Claims Settlement

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Colorado casino-hotel, Reserve Casino Hotel, has agreed to pay $250,000 to four women to settle allegations that the casino refused to rehire them on the basis of their age, gender or both, when the casino was sold in 2011.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit against the casino in September 2015 on behalf of four women, who ranged in age from 58 to 63. The women were employed as slot machine attendants or cocktail servers. The casino was then known as the Fortune Valley Hotel and Casino, but then was sold in bankruptcy, emerging as Reserve Casino Hotel. Three of the women were long-time slot machine attendants when they were not rehired in the transfer. They were 60, 62, and 58 years old at the time they were terminated. The fourth woman, started working as a food server in November 2005, and later became a cocktail waitress. She was 63 when she was denied rehire, and the oldest cocktail server applicant.

Older Women Are at Risk for Discrimination

According to the complaint, prior to the sale of the casino, managers photographed floor operations employees, then later used the photos to screen out older and less attractive employees. Then, it allegedly rehired approximately 95 percent of the workforce, screening out the five percent who were older and less attractive. The EEOC has gone on the record to emphasize that older women may be facing more prevalent and acute employment discrimination than those in other subcategories of the workforce, including younger men and women and older men.

The owners of Reserve Casino Hotel signed a 3.5-year consent decree, whereby the four women will share in the $250,000 settlement award. The EEOC will determine how the award is to be split between the four women. The consent decree also mandates that the owners revise their anti-discrimination policies, making a strong and clear commitment to preventing age-based discrimination and retaliation. They also must provide annual training, and education on subconscious stereotypes.

The EEOC sued the owners of Reserve Casino Hotel under Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act. The women had come forward, spurring the agency to conduct an investigation that lead to a finding that there was a significant lack of hiring of female applicants age 40 or older. The specific allegations included in the complaint were sex discrimination, age discrimination and “sex plus age” discrimination.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green, P.C. Represent Individuals with EEOC Claims

If you suspect that you have suffered from employment discrimination, Philadelphia employment lawyers at Sidkoff, Pincus & Green can help you recover maximum compensation and hold the responsible parties accountable. With offices conveniently located in Philadelphia, we represent clients throughout Pennsylvania and South Jersey. Call us at 215-574-0600 or contact us online today.