IP and Employment Law Blog

Many employers may not realize that drug or alcohol addiction can qualify as a disability under the Americans with Disabilities Act (ADA). If there is an employee that is in a rehabilitation program with an addiction that substantially impairs his or her life activities, then he or she may be protected under the ADA. The employee’s participations in the rehabilitation program generally, qualifies as a disability or a perceived disability. 42 U.S.C. section 12114 (b).

However, depending on whether or not the employee’s ongoing use of illegal drugs, the notices provided to the employee, and the violations of employment rules, the employer may still be able to discipline or terminate the employee. 42 U.S.C. 12114 (a) and Conley v. Village of Bedford Park, 215 F.3d 703 (7th Cir. 200o). It should be noted that addiction to alcohol or alcoholism may constitute a disability just like addiction to any other drug addiction. Despears v. Milwaukee County, 63 F.3d 635 (7th Cir. 1995).

Employers should take heart that typically, recreational alcohol or drug use is not protected under the ADA. Moreover violations of an employer’s drug and alcohol policy are often sufficient to justify their adverse employment actions. Even though, alcoholism is a disability, driving under the influence and reports of alcohol odor are sufficient to justify dismissal of an employee. Bekker v. Humana Health Plan, Inc., 229 F.3d 662 (7th Cir. 2000).

If you have any questions or concerns about whether or not your drug and alcohol policy complies with the ADA, then please feel free to contact us. If you are reading this at any other site, then it is likely to be an infringing copy of the article or post provided at the IP and Employment Law Blog.

All of us are familiar with Batman, Superman, Harry Potter, Stallone, the Terminator and a wide variety of similar characters from films, books, and movies; however, when is a character copyrightable? Unfortunately, the answer varies based upon the jurisdiction, the judge, and the medium in which the character is fixed.

Generally, visually depicted characters are granted copyright protection under the more lenient “specifically delineated or especially distinct” standard. Anderson v. Stallone. Often, this more lenient standard is justified, because the author is believed to have done more work and less imagination is required on the part of the reader. Id.

On the other hand, literary characters are often subject to the “story being told test” to acquire copyright protection. Anderson. This more stringent standard is often applied, because the author is perceived to have done less work and left more to the imagination of the reader. Id.

However, these generalities are only the starting point of the analysis. Often, traits or mannerisms of characters are also protected and literary characters are sometimes considered as a group to determine if together the meet the “story being told” test. The considerations often increase the likelihood of finding copyrightable subject matter. Moreover, visually depicted characters sometimes get a thin or limited copyright, which is limited, to the specific image created by the artist.

Essentially, the general principles sometimes lead to unexpected results in determining copyrightability. Thus, creating copyrightable characters requires a greater understanding of the story, contemplated or planned use, and identifying traits that clearly define the character. This understanding can be crucial to an author or artist’s ability to protect his or her work.

Our readers may be interested in reading the following cases:

Warner Bros v. Colombia (denying copyright protection under the story being told test); MGM v. American Handed Motor Co. (grating copyright protection under the specifically delineated or story being told test to the James Bond character); and Silberman v. CBS (denying copyright protection to the Amos and Andy character, because their traits were in the public domain).

Typically, in claims for violation of Title VII for sexual harassment, Employers are not subject to strict liability for harassment or hostile work environments created by an individual that is not the immediate or successively higher supervisor.

Essentially, under Title VII, acts by supervisors that are not the direct supervisor or directly higher in authority to the employee claiming to be harassed cannot be used to impose strict liability on an employer. However, this may not be the case for claims for claims of sexual harassment and hostile work environment under the Illinois Human Rights Act.

In a recent Illinois Supreme Court Opinion, (Sangamon County Sheriff’s Department v. Illinois Human Rights Commission, 233 Ill.2d 125, 908 N.E.2d 39, (2009), the Court imposed strict liability upon an employer for acts committed by a Supervisor that had no direct authority over the employee. Essentially, the Illinois Supreme Court stated, we are not bound by Federal precedent, because we are interpreting the Illinois Human Rights Act. We are not interpreting Title VII.

The Illinois Supreme Court explained that based on the plain language of section 2-102 (D), an employer is strictly liable for an employee’s claim of sexual harassment, unless the harasser is a “nonemployee”, “nonmanagerial” or a “nonsupervisory” employee. Thus, under the IHRA, employers face a greater risk from harassment or hostile work environment by any supervisor.

If you have any concerns or questions about the new risk from claims under the IHRA, then feel free to contact us.

Also see: Strict Liability under the IHRA

The safe harbor is not a tranquil body of water, but a section in the Digital Millennium Copyright Act (DMCA) that protects Internet Service Providers (ISPs). The ISP is an entity offering transmission, routing or providing 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. 512 (A)

Or, an ISP is a provider of online services or network access or the operator of such facilities. 512 (B). The ISP is immune from liability for monetary, injunctive or equitable relief for copyright infringement for storage of such material at direction of user on its systems. 512 (c). However, the ISP must meet the following elements to acquire such immunity:

1) not have actual knowledge that the material or an activity using the material on the network is infringing;

2) is not aware of circumstances or facts from which the infringing activity is apparent; or

3) upon acquiring such knowledge or awareness, removes or disables access to the material;

4) does not receive a financial benefit directly attributable to the infringing activity, where the ISP has the right and ability to control such activity; and

5) upon notice of claimed infringement responds expeditiously to remove or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

The importance of a good confidentiality agreement cannot be overstated for an intellectual property owner. Whether your are a copyright, trademark, patent or trade secret owner it is crucial to have a good confidentiality agreement in place to protect your intellectual property. Having a good confidentiality agreement protects against another profitting from your IP without your consent.

However, these confidentiality agreements need to be clearly drafted to define the confidential information, the permitted uses, exclusions to avoid overreaching, and avoid any implied transfer of your intellectual property rights. For example, an author should always have a good confidentiality agreement before submitting any work to a publisher to protect his copyrights. A new joint venture may require disclosure of business processes to an unknown partner or a potential competitor, without a good confidentiality agreement you could end up training your future competitors.

Finally, a good confidentiality agreement is crucial to employers and employees as well to ensure potential conflicts or disputes that may occur upon a separation of employment. Taking the time to create a confidentiality agreement before undertaking a new business venture or hiring a unknown employee can prove invaluable in protecting the IP assets you have worked hard to develop!

In today’s economy, Employers are often downsizing, relocating or transferring employees. This often requires employers to follow the procedures outlined in the Federal and IL WARN acts. Failure to follow the procedures in the Federal and IL WARN acts can result in a violation of the employee’s rights and imposition of significant penalties upon the employer.

Generally, the Federal and IL WARN Acts are analogous statutes that may require employers to give notice to their employees of mass layoffs or transfers. However, there are some significant differences between the IL and Federal WARN acts. The following is a list of some of the major differences between the two Acts:

1) the IL WARN Act applies to employers with 75 employees or more, while the Federal WARN act applies to employers with a 100 plus employees;

2) The IL WARN act applies, when a regulated employer fires 25 employees, 1/3 of its full time work force, or 250 employees. The Federal WARN act applies, when a regulated employer fires 50 employees, 1/3 of its full time work force, or 500 employees;

3) The Illinois WARN Act requires notice in the event of a “relocation”, but does not define “relocation”;

4) The Illinois WARN Act requires notice to government officials under the Business Economic Support Act (BESA), if the employer receives state or local funds; and

5) The Illinois WARN Act allows the IDOL to promulgate rules and to examine books to enforce the Act.

The WARN Acts are a hot issue in the current economic climate. Ensuring compliance and figuring out your rights under the WARN Acts may be crucial to employees, employers, lenders, borrowers, and potential purchasers of a company.

Quite often Employees and Employers engage in oral discussions relating to their employment terms. Often oral statements are made relating to qualifications, experience, relocation expenses, length of employment, compensation and a variety of similar matters. Employers have been routinely allowed to use any false statements about an Employee’s qualifications and/or experience to justfy a subsequent discharge.

Now, Illinois Courts are recognizing that an Employee has a basis to assert fraudulent inducement based on oral misrepresentations. Illinois courts are finding a scheme to defraud based on oral statements (saying no demotion) and actions that indicate the opposite intent by an Employer (having the demotion papers being processed at the same time). See. Kamboj v. Eli Lilly and Co., 2007 WL 178434 (N.D. Ill. 2007) (promise of a certain job title and a certain range of salary/benefits prevented a summary judgment on the employee’s claim) and Quake Construction Inc. v. American Airlines Inc., 141 Ill. 2d 281, 565 N.E.2d 990 (1990).

Thus, Employers should be more cautious about what they may say to Employees during the hiring process. A misstatement may tie up the Employer in litigation that could have been avoided. On the other hand, Employees now, have a means of recourse for oral misstatements by Employers.

Patent Claim Construction is the process by which a patent owner’s invention is defined. The claims are the boundary and scope of the patent owner’s right to exclude others from practicing the invention. Patent claim construction is at the heart of most infringement, non-infringement, design around, willfulness, equivalvence, and invalidity analysis.

Courts interpret the language in a patent claim based on a variety of what are called claim construction principles. Many of these are similar or analogous to statutory construction principles. Courts typically interpret the claims in the context of what is called a Markman hearing.

Since the main focus of most patent litigation is claim construction, here is a copy of the Federal Circuit’s decisions on claim construction published by the IPLAC litigation committee.

Enjoy and thanks!

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Registering domains that are common misspellings or derivatives of an established trademark, such as: www.ccoke.com, www.coca-cola.com, and www.coke-cola.com is a recipe for liability. In the internet context, an individual’s intentional registration of www.ccoke.com, www.coca-cola.com, and www.coke-cola.com, knowing that they are another individual’s valuable trademark weighs in favor of finding bad faith and trademark infringement. Trans Union LLC v. Credit Research Inc., 142 F. Supp.2d 1029, (7th Cir. 2001); and PACCAR, 115 F. Supp.2d at 779.

These domains contain all the same characters and give off the same commercial impression as “Coke” and “Coca-Cola.” This is an indication that the domains were acquired to either divert traffic and customers, or to try and sell the domains to the owner of the mark. See Mastercard International Corporation Inc., 629 F. Supp.2d 824, 831-32, (N.D. Ill. 2009); Nike Inc., 318 F. Supp.2d 688, 691-2, (N.D. Ill. 2004) and 15 USC 1125 (D) (B) (1).

Moreover, registering multiple sets of domains that are derivatives of another’s trademarks is a venture fraught with significant risk. Registering multiple domains that violate another’s trademarks is indicative of bad faith, and can result in liability under the Anti-Cyber Squatting provision of the Lanham Act. See Mastercard International Corporation Inc., 629 F. Supp.2d 824, 831-2, (N.D. Ill. 2009); Nike Inc., 318 F. Supp.2d 688, 691-2, (N.D. Ill. 2004) and 15 USC 1125 (D) (B) (i) (VIII).

If you have any concerns or questions regarding whether or not someone has infringed your trademark rights, is a Cyber Squatter, or whether or not you will infringe the trademark rights of another by acquiring and registering an internet domain; then please feel free to contact me.

Also see: TransUnion Case and MasterCard Case.

Franchising a business can be a good strategy to grow your business enterprise. A successful franchising strategy depends upon the franchisors ability to create replicable business models with scalable growth. Typically, a Franchisor is able to provide a Franchisee with its knowledge, expertise, business models, manuals, intellectual property (trademarks, patents, trade secrets, and/or copyrights) and other similar resources.

A Franchisee typically brings his, her, or its own resources, labor, previous business experience, capital and motivation to own a successful business enterprise. However, a franchise may have to be registered with the FTC and often the Attorney General’s Office of the State, in which it operates. There have been some recent amendments to the Franchise registration and disclosure rules that should be noted.

For example, Franchisors must disclose material information, such as, background information on the Franchisor, the costs of entering into the business, the legal obligations of the franchisor and franchisee, statistics on franchised and company owned outlets, to prospective franchisees. Moreover, if there are representations made about financial performance there must be reasonable substantiation and disclosures relating to the financial figures provided to prospective franchisees. Often financial representations have to be amended and modified on a periodic basis to avoid providing false or misleading information.

Franchising is still a fantastic method for growing your business; however, understanding the nuisances of the disclosures and material information that must be provided to prospective franchisees is crucial to a successful franchising strategy. Undertaking the proper steps to comply with the FTC’s amended rules can often help avoid penalties, as well as, litigation with franchisees and claims for breach of franchise agreements.

If you have any concerns or questions regarding adopting an appropriate Franchising strategy, then feel free to contact us.