By Jeffrey L. Michelman
The Internet Corporation for Assigned Names and Numbers (ICANN) opened the application window on January 12, 2012 for its New Generic Top Level Domain (gTLD) program. This process allows successful applicants to create their own equivalent of a “dot com.” For example .lawyer, .bookkeeper, .toyshop, .womansfashion, .investing, etc. Then the owner of that top level domain can choose to run its own domain registry business, such as Network Solutions or GoDaddy, and charge a fee to others wanting to use the new top level domain.
This move by ICANN could potentially raise the number of available gTLD domains from its current level to over 1,000 new options. Simply put, the Internet is changing and there are key dates all brand owners should keep in mind:
- April 12, 2012: New gTLD application window closes.
- Early May, 2012: Public Application Information will be posted to ICANN’s website.
- From April through November: Application Review, Initial Evaluation and an Objection Filing period will occur.
Brand owners should not ignore what is going on in the Domain Name game and lose a competitive advantage in the Internet marketplace. Businesses would be foolish to fail to review the posted applications to monitor for possible infringement or any other potential competitive harm. The should discuss the findings with counsel to identify the harm and develop a remedy.
Any dispute resolution proceedings must be based upon a complaint brought by one of the following four types of entities, and filed with the specific organization contracted to handle the dispute:
- String Confusion Objections – objector must be a current TLD operator or gTLD applicant in the same round
- Legal Rights Objections – objector must be a legal rights owner whose rights are being infringed
- Limited Public Interest - objections may be filed by any member of the public
- Community Objections – objector must be an established institution clearly defined with a community
- October, 2012: ICANN expects to release the details and procedures for trademark owners to file their registered marks within the Trademark Clearinghouse.
- Early 2013: Timeframe for first new registries to go live.
Now is the time to determine whether your business could be helped by having a new generic top level domain attached to your URL — and whether you could get it if you do want it.
If you and counsel believe the new gTLD is worth it, get that application on file quickly to meet the April cut-off date.
Lastly, be sure to schedule a prompt review of the new gTLDs so timely objections can be filed.
Posted by Attorney Jeffrey L. Michelman, who concentrates his practice on Trademarks and Copyright matters as well as e-Commerce and Social Media issues.
02/7/12 1:15 PM
Business Law, Intellectual Property | Comment (0) |
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New Top Level Domain Name Application Period Opens: Will There Be Another as Successful as “.COM”?
By Ruth A. Binger
Part of a series on issues related to Manufacturers, Distributors and International Trade
Ralph Waldo Emerson warns that “rest, conservatism, appropriation, inertia; not newness, not the way onward” are forms of old age which causes people (I submit companies also) to be dead while they are yet alive. Yet, your manufacturing company can grow young again, if you as the leader/owner pursue and embrace strategic planning, innovation, and sustainability.
The root cause hindering such onward movement is frequently caused by a lack of succession/exit strategies for business owners/leaders. The Small Business Administration estimates that at any given time, forty percent of businesses are facing transfer of ownership issues. Without arriving upon a succession plan/exit strategy for the owner/leader, onward is not possible.
Rather, the bitter truth of humanity is realized – we all die and many times we take our companies with us. The familiar aphorism “shirtsleeves to shirtsleeves in three generations” describes the propensity of family-owned businesses to fail by the third generation. In fact, it is estimated that less than one-third of family businesses survive the transition from first to second generation ownership, and only 10 percent remain active for the third generation to lead.
By creating an exit/succession plan, a business owner/leader is forced to consider not only what the business needs today but what is needed for the future. The owner will make hundreds of decisions differently such as: making an S Corporation election; entering into contracts with key employees, distributors, and suppliers; maintaining clean records; developing and incenting a good management team; and/or transferring stock to family members. Without a plan, the business will mostly die due to the lack of necessary investment in leadership and talent, business systems, and “state of the art” equipment.
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02/7/12 1:07 PM
Business Law, Manufacturing and Distribution | Comment (0) |
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Lack of an Exit Plan Equals Dead Company Walking
By Michael J. McKitrick
Your lease may be the most important asset of your business. Commercial leases are complex transactions and should not be taken lightly.
Following these basic points will make the lease renewal or new lease go smoothly.
- Know your dates. I have seen many cases where tenants allow their lease renewal deadline to pass or, even worse, have their lease automatically renewed by failing to follow these important deadlines. You should check your lease to see exactly what options you have to renew and the deadline specified in the lease to notify the landlord of your intention to renew. These deadlines are usually strictly enforced by the courts.
- Start early. You should start your decision process well before the deadline in the lease. The earlier you start, the more time you have to test the market, review potential alternative sites, and make your decision. Many renewal provisions have a market rent adjustment, so you will need to find out what your landlord proposes as “market rent” well in advance of the deadline to give you time to negotiate or to consider alternatives.
- Consult the experts. You should consult a commercial real estate broker familiar with your type of property to assist you in determining the options available in the market including rent and other terms landlords are providing. They know the market, the players and concessions generally available. Brokers generally work on a commission basis and your landlord will most probably be consulting with his broker so you need to even the playing field. At the same time, you should consult with a real estate attorney so that your attorney will be on board when the lease proposal is made and when you are presented with a lease or renewal document.
- Carefully review the lease documents. Depending on the type of property, whether construction is contemplated and many other factors, leases are lengthy and complex. Much legalese is involved and terms have meaning and importance that are not apparent to someone not experienced in reviewing and negotiating leases. The lease or renewal document should be carefully reviewed by your attorney and revised to include provisions necessary to protect your interests. Most landlords have lease formats that are not favorable to tenants but landlords are willing to negotiate lease terms especially now when it is still a tenant-oriented market.
If you follow these steps you should be able to navigate the lease renewal minefield. If not, you risk a blow up!
Posted by Attorney Michael J. McKitrick. With over 30 years of hands-on commercial litigation and transactional law experience, McKitrick’s practice encompasses business and transactional advice, commercial real estate matters, and regulatory and practice management guidance for health care professionals. Most of his clients are in the medical, financial services, and manufacturing sectors.
01/9/12 4:02 PM
Business Law, Real Estate | Comment (0) |
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Four Points to Follow When Your Lease Term is Ending
By Christopher D. Vanderbeek
In September 2011, Missouri’s Western District Court of Appeals rendered its opinion in State ex rel. KCP & L Greater Missouri Operations Co. v. Cook. The Court ruled that Missouri employees may sue their employers in civil court where they have allegedly suffered an “occupational disease” as a result of their employment. It is important to note that the Court did not bar employees from filing workers’ compensation claims based on occupational diseases. Rather, the Court essentially gave employees with occupational diseases the option of either filing a workers’ compensation claim or filing a civil lawsuit.
Prior to KCP & L, the general understanding among employers, employees, the State of Missouri, and workers’ compensation legal practitioners was that the Missouri workers’ compensation system was the exclusive remedial forum for any claim involving a work-related injury, whether it be a broken arm or lung cancer. This general understanding was derived from Section 287.120 of the Missouri statutory code. Section 287.120 (the “exclusivity provision”) states as follows:
- Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee’s employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.
- The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.
The intent behind the exclusivity provisions was that Chapter 287 of the Missouri statutory code would provide the exclusive remedy for all claims based on work injuries. However, the Court in KCP & L exploited an oversight in legislative wording – the legislature only made the workers’ compensation system the exclusive forum for claims based on injuries (or deaths) caused by accidents.
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12/20/11 12:30 PM
Business Law, Employment Law, Workers' Compensation | Comment (0) |
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Employees Can Now Sue for Occupational Diseases: Understanding Breeds a Solution to the Problem
By Christopher D. Vanderbeek
Missouri Appeals Court Says Employees Can Sue Employers in Civil Court for Occupational Disease Claims
Missouri’s Western District Court of Appeals recently decided that an employee can sue his employer in civil court for an “occupational disease” claim. In KCP & L Greater Missouri Operations Co. v. Cook, the employee claimed that he contracted mesothelioma as a result of his employment. The court ruled that Gunter was allowed to file suit in civil court because, under Missouri law, the workers’ compensation forum is not the exclusive forum for a claim premised on an “occupational disease” injury, such as mesothelioma, even if the injury is allegedly work-related. (Note the distinction between an “occupational disease,” which develops over a period of time, versus an injury that happens instantaneously or acutely as a result of a single accident.)
This is a major change from prior law. Historically, the exclusive remedy for every employment-related injury was a workers’ compensation claim. And workers’ compensation is a system that clearly benefits employers (as well as third-party workers’ compensation insurance carriers). Relative to the civil realm, the workers’ compensation system places a dramatically lower ceiling employer and insurer liability vis a vis employee benefits.
There are generally two types of “occupational disease” injuries. The first type is an actual disease, such as mesothelioma, that results from an employment condition. The second type is a “repetitive use” injury, which results from the employee overusing the injured body part. Although it is yet to be seen whether or not Missouri courts will allow pursuit of repetitive use claims in the civil forum as well, a plain-language reading of the court’s opinion in KCP & L suggests that they will.
What This Means for Missouri Employers
This does not necessarily mean that a large number of employees will pursue injury claims in civil court. Repetitive use injuries like carpal tunnel syndrome are caused by repetitive use of the injured body part, plain and simple. It would be difficult for an employee to prove that his employer’s negligence cause this sort of injury. To prove negligence, an employee must prove that the employer knew or should have known that a harmful condition existed and that its employees were at risk as a result. If the employee cannot prove negligence, it would be foolish for his attorney to file a civil lawsuit rather than a workers’ compensation claim.
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11/23/11 10:59 AM
Business Law, Employment Law, Litigation | Comment (0) |
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Occupational Disease Claims: Civil Court an Option for Employees
By Laura Gerdes Long
Fate of the Patient Protection and Affordable Care Act Lies in Hands of Supreme Court
According to the National Law Journal, the Supreme Court justices granted review in three of the five petitions that it had before them regarding the Patient Protection and Affordable Care Act, all from the 11th Circuit Court of Appeals. That court had struck down the mandate that individuals who can afford health insurance must purchase coverage or pay a penalty.
The Journal article lists the issues on which the Court would hear arguments and the amount of time allotted to each issue, for a total of five and one-half hours.
Oral arguments will be made by the United States Solicitor General, 26 state attorneys general (handled by a single lawyer from a Washington firm), and the National Federation of Independent Business (NFIB).
Typically, Supreme Court oral arguments are scheduled for two hours of argument. Arguments are likely to be held in March.
Undoubtedly, with all of the questions raised by the health care act, five hours will not be sufficient time to answer all of them.
Posted by Attorney Laura Gerdes Long. Long practices in tort, insurance defense, legal malpractice, health care, and employment law. Well-versed in employment law policies and processes related to HIPAA, she serves as a trainer and advisor to health care providers, insurers, self-insured employers, and municipalities.
11/17/11 1:37 PM
Business Law, Healthcare, Litigation | Comment (0) |
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Supreme Court: Will Five and a Half Hours Be Enough?
By Marcia Swihart Orgill
Substantial Risks Exist for Misclassifying an Overseas Consultant as an Independent Contractor
Part of a series on issues related to Manufacturers, Distributors and International Trade
With both the IRS and the Department of Labor targeting the misclassification of U.S. employees as independent contractors, many companies are re-examining their worker classifications. While most U.S. companies are aware of the costly consequences of such misclassification, they may not be cognizant of the considerable dangers of misclassifying foreign workers as independent contractors.
Frequently, U.S. companies choose to engage local representatives in their overseas markets as independent contractors rather than employees in order to avoid compliance with foreign employment laws, withholding tax requirements and social welfare/insurance contributions. In many countries, these obligations may be considerably more onerous than they are in the United States.
However, the consequences of misclassifying a foreign worker as an independent contractor are frequently more costly as well.
For example, in Germany an employer is obligated to remit social security type payments for its employees that are equal to about twenty percent of the employee’s compensation to German social welfare and insurance agencies. The employer is also required to withhold from the employee’s compensation the employee’s social security obligations which are also equal to about twenty percent of his/her compensation.
If an employer fails to withhold the requisite amount from the employee’s wages, the employer becomes liable for the employee’s social security obligations. The employer many not seek reimbursement for this amount from the employee, regardless of any contractual agreement that provides for such reimbursement. The look back period for collection of these social security payments is thirty years in some cases.
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11/14/11 4:41 PM
Business Law, Employment Law, International, Manufacturing and Distribution | Comment (0) |
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Beware: It’s Risky to Misclassify an Overseas Consultant
By Jeffrey R. Schmitt
November 5, 2011 marked “Bank Transfer Day” around the United States, as initiated by 27-year old Los Angeles art dealer Kristen Christian, via this facebook page in early October. The movement, purposefully or not, coincided with the Occupy Wall Street movement and spread throughout the United States, denouncing big banks and the Wall Street financial industry. Perhaps the greatest alleged perpetrator, and possibly the greatest victim, of the Occupy and Bank Transfer Day movements was Bank of America, who announced earlier this year it intended to implement $5.00 monthly service fees for certain deposit accounts. Bank of America’s plan imploded when other big banks failed to follow suit with their own fees, and Bank of America became the sole target of criticism for its planned fee policy.
The result, in part, was the concept of Bank Transfer Day, where consumers were urged to withdraw their deposits from big banks and move their money to smaller and locally run credit unions. The result, according to the Credit Union National Association (CUNA), was that more than 40,000 people signed up for accounts at credit unions on November 5th, corresponding to about $80 million in deposits. CUNA represents most of the chartered credit unions in the United States, and reports that its members saw increases in new account activity during the month of October and early November, prior to Bank Transfer Day.
While Bank Transfer Day created headlines and long lines at credit unions on a Saturday morning, did it really have the desired impact on Bank of America and other big banks? The answer is probably not, given the size of the market share that Bank of America and other top banks in the United States hold, a loss of even tens of thousands of customers in a given week probably does not represent much of a blip on the banks’ radars. In fact, most large banks are flush with deposits right now, given the unstable market and the desire for many people and investors to remain liquid. Additionally, banks are benefitting from the low interest rates on deposit accounts, which means that many consumers are not even shopping rates to find the best return on their deposits, as has historically been the case.
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11/11/11 3:09 PM
Banking and Finance, Business Law | Comment (0) |
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Bank Transfer Day and its Prospects for “Main Street” Banking
By Jeffrey L. Michelman
Politicians constantly speak of the small business entrepreneur as the backbone of America, and in fact many of our largest companies today started out as small businesses. Thus, it is surprising that the same politicians who boast of American small business would allow passage of “The America Invents Act.” It is likely to impact small businesses and certainly the individual garage/basement inventor in ways that the politicos haven’t yet considered.
Prior to this new Act, the law in the United States was that the first person to invent a new patentable product is the one who deserved to get the patent, thus giving that person the 20 years (from filing) a monopoly accorded to inventors who successfully achieved patents protection. This meant that there was time to do further research and development and prototype testing; there was time to raise money for achieving patent protection; and the small business owner had every opportunity to be first in line with rights to the monopoly granted under the patent statute. But now that standard has been changed by law. We are witnessing a transition from a first-to-invent system to a first-to-file system used in many foreign countries. Thus an inventor who races to the Patent and Trademark Office (PTO) to file an invention application may well be the one who successfully obtains the monopoly of patentability over a party who actually came up with the idea and invented the product first.
What’s the difference, you say. The difference is very plain to those who understand the patent system. Large corporations have in-house, or at their disposal, plenty of patent lawyers standing by ready to file for patents any new invention or twinkle in the eye of management that seems to be inventive and to get it on file quickly as a provisional patent application which requires limited filing of actual claim elements or filing as a full blown utility patent. The search for money in order to obtain patentability is not an issue for the large corporation. Thus by the time the small business entity perfects the invention and then seeks the money for the expense of patentability, the small business entity may lose in the battle for its place in line giving big business the opportunity to be successful in keeping the small business and, of course, others out of the marketplace once granted the monopoly.
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11/11/11 2:50 PM
Business Law, Emerging Business, Intellectual Property | Comment (0) |
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Is The New Patent Statute Patently Unfair to Small Business?
By Emily E. Kiser
Dodgers’ Season Ticket Holders Appointed to the Official Unsecured Creditors’ Committee
Watching the final out of Game 7 of the 2011 World Series provided a standstill moment across the St. Louis metropolitan area as hundreds of thousands of St. Louisans watched David Murphy’s pop fly take flight, seconds later to land in the glove of Allen Craig—and earn the Cardinals their eleventh World Series Championship.
In Los Angeles, Dodgers season ticket holders, arguably the most loyal fans of the club (a simple Google search of “Los Angeles Dodgers” produces results that could easily be a plot line for a soap opera—those with season tickets must be loyal) are in a continuous standstill moment. Only their moment is not due to a play-off game, but because of the Dodgers’ ongoing Chapter 11 bankruptcy.
For those loyal fans of the Boys in Blue, however, there was a small victory on October 25, 2011. This victory came via an Order entered by Judge Kevin Gross which allowed for two individuals who represented season-ticket holders to be a part of the Official Unsecured Creditors’ Committee. Getting a spot on the Official Unsecured Creditors’ Committee is tantamount to getting a seat at the “Big Kid Table” on Thanksgiving—it gives one status, power and first dibs on the Bankrupt’s offerings.
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11/3/11 8:08 AM
Bankruptcy, Business Law | Comments Off |
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Dodgers’ Season Ticket Holders—The Best Seats in the House and Now, a Seat at the Big Kids’ Table
